Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

Mr Fagan accidentally drove his car onto a police constable’s foot. After being told, he refused to move the car for a time. The court held this was a continuing battery so that mens rea could arise during the act, constituting an assault. Appeal dismissed.

Facts

The appellant, Vincent Martel Fagan, was convicted by Willesden magistrates of assaulting Police Constable David Morris in the execution of his duty on 31 August 1967. His appeal to Middlesex Quarter Sessions was dismissed, and he then appealed by way of case stated.

Fagan was reversing a motor car in Fortunegate Road, London, when Constable Morris directed him to drive forwards to the kerb and, standing in front of the car, indicated a suitable parking place. Initially Fagan stopped too far from the kerb. The constable asked him to park closer and pointed out a precise spot. Fagan then drove forward and stopped with the offside wheel of his car on Morris’s left foot.

The case stated records the subsequent exchange:

“Get off, you are on my foot,” said the officer. “Fuck you, you can wait,” said the appellant.

The engine stopped running. Morris repeatedly asked Fagan to drive off his foot. Fagan eventually said:

“Okay man, okay,”

and then slowly started the car and reversed off the officer’s foot. The justices were left in doubt whether the initial driving onto the foot was deliberate or accidental. However, they found that Fagan:

“knowingly, provocatively and unnecessarily allowed the wheel to remain on the foot after the officer said ‘Get off, you are on my foot’.”

On that basis they held an assault had been proved.

Issues

The sole question on the case stated was whether the prosecution had proved facts which in law amounted to an assault.

Two linked issues arose:

• whether, if the initial driving of the wheel onto the constable’s foot was accidental, the continued presence of the wheel on the foot could amount to an assault; and
• whether the necessary mens rea for assault could arise after the actus reus had begun, on the basis that the battery was a continuing act rather than a completed act followed only by consequences.

The appellant argued that once the car had come to rest on the constable’s foot, the act was complete and had occurred without mens rea; any subsequent failure to move the car was a mere omission, which could not constitute the actus reus of assault nor retroactively supply mens rea. The respondent argued that the battery continued as long as the wheel remained on the foot under the appellant’s control and that mens rea could be superimposed on this continuing act, thereby forming an assault.

Judgment

Majority (Lord Parker C.J. and James J.)

Lord Parker C.J. agreed with the judgment delivered by James J. The court approached the question on the specific facts, applying general principles of assault and battery.

James J. set out the nature of assault:

An assault is any act which intentionally — or possibly recklessly — causes another person to apprehend immediate and unlawful personal violence.

He explained the modern practical equivalence of “assault” and “battery” and emphasised that where assault involves a battery, it makes no difference whether the force is applied directly by the offender’s body or by an instrument under his control:

Where an assault involves a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender.

The court saw no difference in principle between stepping on a person’s toe and maintaining that position, and driving a car onto a person’s foot and remaining seated while the wheel stayed in place.

James J. accepted that a mere omission to act cannot be an assault, and that words alone cannot constitute the actus reus here, stating that the appellant’s words could only shed light on his actions. The crucial question was whether Fagan’s act was complete when the wheel came to rest on the foot, or whether it was a continuing act until the wheel was removed. He drew a distinction:

In our judgment a distinction is to be drawn between acts which are complete — though results may continue to flow — and those acts which are continuing.

If the act is completed, later development of mens rea cannot convert it into an assault. But where the act continues, there is a continuing threat or application of unlawful force. On concurrence of actus reus and mens rea, the court held:

For an assault to be committed both the elements of actus reus and mens rea must be present at the same time.

and further:

It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act.

On the facts as found, the majority held that the relevant act was not completed at the moment the wheel came to rest; rather, there was a continuing battery so long as the wheel remained on the officer’s foot under Fagan’s control. Although the initial driving onto the foot may have been unintentional, the time came when Fagan knew the wheel was on the foot and nevertheless:

• remained in the driver’s seat, so that his body, through the car, was in contact with the constable;
• switched off the ignition;
• maintained the wheel on the foot; and
• used words indicating his intention to keep it there.

The court held that this was not mere omission or inactivity, but a continuing positive act of battery. Once Fagan formed the intention to keep the wheel on the constable’s foot, the continuing actus reus of battery combined with mens rea so as to constitute an assault. James J. stated that there was:

an act constituting a battery which at its inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed…

The alternative argument based on a duty to act, and an omission amounting to assault, was noted but left undecided.

Accordingly, the magistrates and quarter sessions were held to be right in law, and the appeal was dismissed.

Dissenting judgment (Bridge J.)

Bridge J. agreed with the majority as to the governing principles, including that no mere omission can constitute an assault and that actus reus and mens rea must coincide, with one being capable of superimposition on the other. He stated:

No mere omission to act can amount to an assault. Both the elements of actus reus and mens rea must be present at the same time, but the one may be superimposed on the other.

However, he disagreed on the application of those principles to the facts. Bridge J. accepted that the appellant had behaved disgracefully, but could not identify any positive act constituting an assault once the wheel had accidentally come to rest on the constable’s foot. He asked what Fagan did after that moment which could be the act of assault, and concluded:

However the question is approached, the answer I feel obliged to give is: precisely nothing.

In his view, the car rested on the foot by its own weight and remained there by its own inertia; Fagan’s fault was omitting to move it, which was an omission, not an act. He rejected analogies with deliberately maintaining pressure by a foot or stick, stating that it was not legitimate to speak of Fagan “holding” or “maintaining” the wheel on the foot; the accurate description, as used in the case stated, was that he “allowed” it to remain.

On this basis, Bridge J. would have allowed the appeal and quashed the conviction, but he was in a minority.

Implications

The decision establishes that where a battery is a continuing act, mens rea may arise after the act has begun and still coincide with the ongoing actus reus, thereby constituting an assault. It confirms that force applied through an instrument such as a motor car can amount to a battery, and clarifies that a mere omission is insufficient for assault, but that maintaining a harmful state of affairs under one’s control can be characterised as a continuing act rather than an omission.

The case is a leading authority in criminal law on the requirement that actus reus and mens rea must coincide in time, and on how the courts may treat apparently instantaneous conduct as a continuing act where appropriate.

Verdict: Appeal dismissed; the conviction for assaulting a police constable in the execution of his duty was upheld.

Source: Fagan v Metropolitan Police Commissioner [1969] 1 QB 439