Fagan v Commissioner of Police of the Metropolis [1968] EWHC 1 (QB)

Fagan accidentally drove onto a police officer's foot but refused to move when asked. The Divisional Court held this was an assault, treating the act as continuing, so that mens rea formed after the initial act could be superimposed onto the actus reus.

Facts

On 31 August 1967, the appellant, Vincent Fagan, was directed by Police Constable Morris to park his car at the kerbside in Fortunegate Road, London. In doing so, Fagan drove the car onto the officer’s foot. When Morris told him to get off, Fagan responded, ‘Fuck you, you can wait,’ and switched off the ignition. After repeated requests, he eventually reversed the car off the officer’s foot. The magistrates were unsure whether the initial mounting of the wheel was deliberate or accidental, but were satisfied that Fagan knowingly and provocatively allowed the wheel to remain on the officer’s foot after being told to move. He was convicted of assaulting a police officer in the execution of his duty; his appeal to quarter sessions was dismissed, and he appealed to the Divisional Court by way of case stated.

Issues

The sole legal question was whether the prosecution had proved facts amounting in law to an assault. Specifically, the court had to determine whether an assault could be constituted where the initial act (driving onto the foot) may have been without mens rea, but the requisite intent was formed only after the wheel was already resting on the officer’s foot. This required consideration of whether the act was a completed act or a continuing act, and whether mens rea could be superimposed upon a continuing actus reus.

Arguments

Appellant

Mr Abbas, for the appellant, relying on the definition of assault in Stone’s Justices’ Manual, argued that on the justices’ findings the initial mounting of the wheel could not be an assault as it lacked mens rea. Once that act was complete, all that remained was a failure or omission to remove the wheel, which could not in law constitute either an actus reus or supply mens rea to convert the earlier act into an assault.

Respondent

Mr Rant, for the respondent, argued primarily that the mounting of the foot was a continuing act which persisted until the wheel was removed, and that during this continuing act the appellant formed the necessary intent, thereby completing the offence. Alternatively, he contended that there may be situations imposing a duty to act, breach of which could amount to assault, though the court found it unnecessary to decide this point.

Judgment

The Divisional Court (Lord Parker CJ and James J, Bridge J dissenting) dismissed the appeal. James J, delivering the leading judgment, defined assault as any act which intentionally, or possibly recklessly, causes another to apprehend immediate and unlawful personal violence, and noted that the assault here involved a battery. The court held that it makes no difference whether the battery is inflicted directly by the body or through an instrument such as a car controlled by the offender.

The court drew a critical distinction between acts which are complete (though their results may continue to flow) and acts which are continuing. Where a battery is a continuing act, there is a continuing assault. Both actus reus and mens rea must coincide, but mens rea need not be present at the inception of the actus reus; it can be superimposed upon an existing continuing act. However, mens rea forming after a completed act cannot retrospectively convert that act into an assault.

On the facts, the court found that once the appellant knew the wheel was on the officer’s foot, he: (1) remained seated in the car; (2) switched off the ignition; (3) maintained the wheel on the foot; and (4) used words indicating an intention to keep it there. This was not mere omission or inactivity but a continuing act of battery, initially innocent, which became criminal at the moment the requisite intention was formed.

Bridge J’s dissent

Bridge J, dissenting, agreed with the applicable principles but disagreed with their application. He could not identify any positive act by the appellant after the wheel came to rest on the foot; the car remained stationary by its own weight and inertia, and the appellant’s fault was an omission to move it. He considered it not a legitimate use of language to speak of the appellant ‘holding’ or ‘maintaining’ the wheel on the foot, preferring the justices’ word ‘allowed’. He would have allowed the appeal.

Implications

The decision establishes, on its particular facts, that where an act constituting a battery is continuing in nature, mens rea formed at any point during that continuing act is sufficient to complete the offence of assault. The case is a foundational authority on the coincidence of actus reus and mens rea in English criminal law, demonstrating that the two elements need not arise simultaneously at the outset, provided they coincide at some point during a continuing actus reus.

The judgment is significant for practitioners and students because it illustrates the courts’ willingness to characterise a course of conduct as a continuing act to avoid the injustice of acquittal where mens rea forms after an initially innocent act. However, the decision is carefully qualified: the majority expressly declined to decide whether a mere omission or a breach of a duty to act could constitute an assault, and Bridge J’s dissent highlights the fine and potentially contestable line between a continuing act and a mere omission. The court also emphasised that once an act is truly complete, subsequent formation of mens rea cannot retrospectively criminalise it, as illustrated by the contrast drawn with a motorist who accidentally runs over a victim and then intentionally fails to render assistance.

The case remains an important authority on the doctrine of coincidence and on the definition and scope of common assault and battery, particularly where a defendant uses an instrument such as a vehicle to inflict unlawful force.

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

Source: Fagan v Commissioner of Police of the Metropolis [1968] EWHC 1 (QB)