Trial·Breaker SQE1
SQE1 › FLK2 › Criminal Law and Practice › Question
SQE1 · FLK2 · Criminal Law and Practice

Actus reus, mens rea and participation — SQE1 Criminal question

A worked single-best-answer question on actus reus, mens rea and participation, with why each wrong option is wrong — the way SQE1 traps candidates.

Actus reus, mens rea and participation

Ross was staying overnight in his friend's flat. While reaching for his phone, he accidentally knocked over a lit candle, which set a curtain smouldering. Ross saw the smouldering curtain, realised that it might catch fire and spread, but decided not to do anything and left the flat to go to the pub. The fire spread and caused serious damage to the flat. Ross is charged with arson.

Which of the following best describes Ross's liability?

  1. ARoss is liable, because having accidentally created a dangerous situation he came under a duty to take reasonable steps once he became aware of it, and he failed to act while aware of the risk.
  2. BRoss is not liable, because there is no criminal liability for a failure to act.
  3. CRoss is not liable, because he had no mens rea when he knocked the candle over and the mens rea must coincide with that act.
  4. DRoss is liable only if he owed his friend a contractual duty to look after the flat.
  5. ERoss is not liable, because the damage was to his friend's property rather than his own.
Show answer and reasoning
A is the best answer. A person who inadvertently creates a dangerous situation and then becomes aware of it is under a duty to take reasonable steps to counteract the danger (R v Miller). If he fails to do so with the required mens rea, here recklessness as to the damage, he is liable for the resulting criminal damage. Ross was aware of the risk and chose to do nothing.

Rule: A person who creates a dangerous situation, even accidentally, is under a duty to take reasonable steps to avert the danger once he becomes aware of it.

  • B There is liability for omissions where a duty to act exists, including a duty arising from creating a dangerous situation. (wrong rule)
  • C In Miller the House of Lords held that the later omission with mens rea suffices; the original act need not be accompanied by mens rea. (wrong rule)
  • D A contractual duty is one source of a duty to act, but the Miller duty arises from creating the danger. (right rule, wrong facts)
  • E Criminal damage concerns property belonging to another, so damage to his friend's flat is exactly what the offence covers. (wrong rule)

Source: R v Miller [1983] 2 AC 161; Criminal Damage Act 1971, s 1(1) and (3)

Practise more Criminal Law and Practice   All Criminal subtopics