Fagan V Met Police

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July 31 1968

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Case stated

FACTS The appellant drove the vehicle in PC David Morris’s direction and stopped the vehicle with its front off-side wheel on David Morris’s left foot. David Morris said to the appellant, ‘Get off, you are on my foot!’ The appellant’s driving window was open. The appellant said ‘Fuck you, you can wait.’ The appellant then turned off the ignition. David Morris then said to the appellant several times, ‘Get off my foot!’ The appellant then said very reluctantly, ‘Okay, man, okay.’ The appellant thereafter very slowly turned on the ignition and reversed the vehicle off David Morris’s foot.

James J:

… The sole question is whether the prosecution proved facts which in law amounted to an assault … The justices … were left in doubt whether the mounting of the wheel on to the officer’s foot was deliberate or accidental. They were satisfied, however, beyond all reasonable doubt that the appellant ‘knowingly, provocatively and unnecessarily’ allowed the wheel to remain on the foot after the officer said ‘Get off, you are on my foot’. They found that, on these facts, an assault was proved.

… It is argued that … there was no act on the part of the appellant which could constitute an actus reus, but only the omission or failure to remove the wheel as soon as he was asked. That failure, it is said, could not in law be an assault, nor could it in law provide the necessary mens rea to convert the original act of mounting the foot into an assault. Counsel for the respondent argues that the first mounting of the foot was an actus reus, which act continued until the moment of time at which the wheel was removed. During that continuing act, it is said, the appellant formed the necessary intention to constitute the element of mens rea and, once that element was added to the continuing act, an assault took place …

In our judgment … an assault is any act which intentionally or … recklessly causes another person to apprehend immediate and unlawful personal violence. Although ‘assault’ is an independent crime and is to be treated as such, for practical purposes today ‘assault’ is generally synonymous with the term ‘battery’, and is a term used to mean the actual intended use of unlawful force to another person without his consent.

On the facts of the present case, the ‘assault’ alleged involved a ‘battery’. Where an assault involved a battery, it matters not, in our judgement, 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. An assault may be committed by the laying of a hand on another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So, for our part, we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and sitting in the car while its position on the foot is maintained.

To constitute this offence, some intentional act must have been performed; a mere omission to act cannot amount to an assault …For our part, we think that the crucial question is whether, in this case, the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot, or whether his act is to be regarded as a continuing act operating until the wheel was removed …

For an assault to be committed, both the elements of actus reus and mens rea must be present at the same time. The ‘actus reus’ is the action causing the effect on the victim’s mind … The ‘mens rea’ is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act. On the other hand, the...
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