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Also known as the ‘doctrine of supervening fault’, the final circumstance where a duty to act may exist arises where the defendant sets in motion a dangerous chain of events and then fails to correct it. The defendant is required in such circumstances to take reasonable steps to avert the danger, and a failure to do so may result in criminal liability for the consequences that follow.

The classic authority on this point is that of R v Miller [1983] 2 AC 161.

case example

Charge: Arson (Criminal Damage Act 1971, s 1(3))

Case progression: Crown Court – Guilty

Court of Appeal – Conviction upheld

House of Lords – Conviction upheld

Point of law: Creation of a dangerous situation and a duty to avert danger

In R v Miller [1983] 2 AC 161, the defendant was ‘sleeping rough’ in a building and fell asleep on a mattress whilst smoking a cigarette. He awoke to find the mattress smouldering but, instead of calling for help, he simply moved into the adjoining room and fell asleep again. As a result, a fire started and spread throughout the building causing extensive damage. The defendant was charged with and convicted of arson in the Crown Court.

The House of Lords upheld his conviction (affirming the decision of the Court of Appeal) on the basis that the defendant created a dangerous situation which he was under a duty to put right.

Above, it was mentioned that the defendant must take reasonable steps in the circumstances to avert the danger he has created. In this case, what did the law expect the defendant to do? Ultimately that would depend on the circumstances:

• If the fire was a raging inferno, the law would not have expected the defendant to attempt to extinguish it himself. However, the law would expect him to call for help.

•If the fire was small and containable, the law might reasonably expect the defendant to attempt to extinguish it. If such was not possible, the reasonable man would call for emergency assistance.

This discussion led to Lord Diplock, in the House of Lords, commenting:

I see no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence. (emphasis added)

His Lordship followed this by reasoning that:

I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged; provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. (emphasis added)

Following Miller, the questions to be asked in this regard were:

(a) Did the defendant create a dangerous situation?

(b) Did the defendant realise that he has created this dangerous situation?

If the answer to both questions is ‘yes’, the defendant is under a duty to act to rectify the situation within his power. A failure to do will be a criminally liable omission.

Miller was subsequently applied by the trial judge in the trial at first instance of R v Khan and Khan [1998] Crim LR 830 and was fully endorsed by the Law Commission in its draft Criminal Code (Law Com No 177, 1989) at clause 23. However, the Court of Appeal quashed the convictions of Khan and Khan and the draft Code has not been brought into force.

A point of difficulty arose in the law as a result of the case of R (Lewin) v DPP [2002] EWHC 1049 (Admin), where the Divisional Court held that the defendant owed the victim no duty of care in leaving his intoxicated friend in a car during extremely hot weather conditions. Such an omission led to the victim’s death. This decision did not, necessarily, conflict with the decision in Miller given that there was no evidence to suggest that the defendant knew that such a risk of death was possible. Whether Lewin would now be decided in the same way is questionable as a result of the decision in R v Evans [2009] EWCA Crim 650.

case example

Charge: Gross negligence manslaughter

Case progression: Crown Court – Guilty

Court of Appeal – Conviction upheld

Point of law: Creation of a dangerous situation and a duty to avert danger

In R v Evans [2009] EWCA Crim 650, the defendant, the half-sister of the victim, supplied the victim with heroin which she self-administered. The victim reacted badly to the drug and collapsed. The defendant failed to summon help out of fear of prosecution for supplying the drug and the victim died. The defendant was charged with gross negligence manslaughter as a result of her failure to act in contacting the emergency services.

The conviction was upheld by the Court of Appeal on the basis that the defendant had contributed to the dangerous situation through her failure to seek help or support for the victim. The dangerous situation had already been created by another through the supply of drugs; the defendant had contributed to that situation by failing to summon help. Lord Judge CJ ruled:

[F]or the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise. (emphasis added)

As with Miller, the duty arose in this case as a result of the creation of, or contribution to, a dangerous situation. In supplying the drugs to the victim, Evans had set in motion a dangerous chain of events for which she was under a duty to avert, ie by calling for help. By failing to call for help or seek assistance, the defendant’s conviction for manslaughter was upheld.

One should notice immediately that the phraseology used by Lord Judge CJ in Evans differs to some extent from that of Lord Diplock in Miller. The first is identified in Table 2.8.

Table 2.8Miller and Evans

R v Miller	R v Evans
Defendant is liable if he ‘does in fact create a risk’.	Defendant is liable if he ‘created or contributed to’ a dangerous situation.

From this variation in words, Evans has been criticised by the likes of Baker (‘Omissions liability for homicide offences: reconciling R v Kennedy with R v Evans’ [2010] J Crim L 310), who argues that Evans has stretched the Miller principle to circumstances where the defendant ‘simply contributed to, rather than created, the dangerous situation’. Likewise, Ashworth (‘Manslaughter by Omission and the Rule of Law’ [2015] Crim LR 563) argues that:

Lord Judge’s extension of the Miller principle dilutes it to too great a degree, not least because ‘all kinds of background acts of facilitation’ could now be found to support a duty sufficient for manslaughter liability, expanding both the potential ambit and the uncertainty of the duty-situations.

By way of contrary argument to the above, one could argue that Evans is a natural extension of the principle in Miller and fills a void in the law left by drug-supply cases such as R v Kennedy (No 2) [2008] 1 AC 269. In Kennedy, the House of Lords ruled that the chain of causation on a charge of unlawful act manslaughter was broken where the victim, having been supplied with drugs, self-injected. Applying that to Evans, the defendant did not ‘create’ the dangerous situation – that was done by the victim when she self-injected. However, Evans could be (and was) liable if the court found that the dangerous situation was contributed to by the supply of drugs. This is an important step in the development of the law to ensure that drug-dealers are appropriately dealt with under the law.

Evans is a judgment of the Court of Appeal, whilst Miller is one of the House of Lords. It could be argued, therefore, that Evans was decided per incuriam given that Lord Judge CJ did not follow the approach adopted by Lord Diplock. Interestingly, the High Court of Australia declined to follow the approach in Evans in the case of Burns v The Queen [2012] HCA 35, when it held that the relationship of supplier of prohibited drugs and recipient did not give rise to a duty to preserve life on the part of the supplier. It does appear as though Evans is an accepted authority at this stage given that the Crown Court Compendium (at section 19-25) acknowledges the extension in Evans and includes it as part of the directions to the jury.

The second variation in the terminology is identified in Table 2.9.

Table 2.9Miller and Evans continued

R v Miller	R v Evans
Defendant is liable if he ‘becomes aware’ that he has created a dangerous situation.	Defendant is liable if he ‘knows or ought reasonably to know’ that he has created/contributed to a dangerous situation.

In Miller, the defendant’s duty to act only arose at the point that he became personally aware of the danger he had created (a subjective test). In contrast, in Evans, the Court of Appeal stated that the duty would arise when the defendant realises or should have realised that the danger was created (an objective test). Williams (‘Gross Negligence Manslaughter and Duty of Care in “Drugs” Cases: R v Evans’ [2009] Crim LR 631) makes the point that Evans has the result of allowing for the possibility of liability from a failure to act, even where the defendant did not realise the danger she had created, if a reasonable (objective) person would have realised such danger. Further, Ashworth (‘Manslaughter by Omission and the Rule of Law’ [2015] Crim LR 563) argues that the expansion of the duty into a state of mind where the defendant ought to have known about the danger goes ‘too far’ and reasons that such a ruling may offend the requirement for certainty of the criminal law in Article 7 of the ECHR. Had the case of Lewin (above) been decided post-Evans, it is likely that the defendant would have been charged with a criminal offence given that he should have realised that he had created a dangerous situation. In R v Bowler [2015] 2 Cr App R (S) 307, the victim had been asked to be mummified as part of an unusual sexual activity. The Court of Appeal noted that a duty to act arose because the victim ‘was left helpless and in a situation which was obviously dangerous’. Use of ‘obviously dangerous’ could indicate a preference towards an Evans interpretation (though, do note that Bowler was an appeal against sentence and these words were said in obiter). See also R v Bowditch (Maidstone Crown Ct, 26 January 2017). Figure 2.1 demonstrates this distinction in the form of a timeline.

Figure 2.1The duty to avert danger

Two further issues arise as a result of the decision in Miller that bear consideration.

First, the House of Lords in the above cases spoke only in terms of a physical act on the part of the defendant in setting the chain of events in motion. What, then, about an omission that creates a dangerous situation? The courts have yet to address the question of whether an omission, which creates a dangerous situation, might found liability where a further omission fails to avert the danger. One might argue that the principle of Miller should be extended to cover these situations.

example

Jack is cooking dinner and leaves the house to go to the local pub for a few beers. Whilst at the pub he realises that he left on the gas on the oven. Despite this, he does nothing and continues to drink in the pub. Jill comes home from work and lights a cigarette in the kitchen which causes an explosion.

In this case, there is no physical act on the part of Jack; rather, it is an omission (failure to turn off the gas) that created the dangerous situation which he then failed to avert.

Secondly, what of multiple defendants involved in the same transaction? Should one defendant be liable for a failure to avert a danger set in motion by another defendant?

example

Jack punches Andy to the floor. Jill, Jack’s friend, walks past Andy and notices that he is shaking violently with white foam emerging from his mouth. Jill simply ignores this and steps over Andy without calling for assistance.

In this scenario, it is debateable whether Jill would be liable for failing to avert a dangerous situation set in motion by her friend, Jack.

in practice

There is no statement as yet that the Miller principle extends to cover these sorts of situations. It is questionable whether the latter scenario would contravene the ‘no Good Samaritan’ principle. In practice, an advocate would have to argue these points in determining whether an individual was liable for an offence.

An interesting application of the Miller principle can be seen in the case of DPP v Santana-Bermudez [2004] Crim LR 471. In this case, the victim, a police officer, undertook a lawful search of the defendant and asked him to turn out his pockets, the contents of which included some syringes. Specifically, the officer asked the defendant whether he had any ‘sharps’ on him; the defendant failed to answer. When asked whether he had any more needles, the defendant lied, resulting in the victim pricking her finger on a hypodermic needle. The Divisional Court ruled that the defendant had created a dangerous situation through his lie, thereby exposing the officer to a risk of injury, which he failed to rectify by informing the officer of the presence of needles. The defendant was charged with and convicted of ABH.