KembaraXtra – Case Law

Fagan v Metropolitan Police Commissioner (1969) QBD

Facts

The defendant, Fagan, accidentally drove his car onto a police officer’s foot.

The police officer told Fagan to reverse the car off his foot. Fagan refused and turned off the ignition, leaving the car on the officer’s foot for a period of time.

Eventually, Fagan reversed the car.

He was convicted of assaulting a police officer in the execution of his duty.

Fagan argued that his failure to reverse the car was merely an omission and therefore was not an “act” capable of amounting to an assault.

Legal Issue

The issue was whether Fagan could be guilty of assault when the original act of driving onto the police officer’s foot was accidental, but after becoming aware of the situation, he deliberately refused to move the car.

The court had to decide whether the act of driving onto the officer’s foot was already complete or whether it could be treated as a continuing act.

Held

The court held that Fagan was guilty.

A distinction was drawn between acts that are complete and acts that are continuing.

Driving the car onto the police officer’s foot was treated as a continuing act of battery.

Although Fagan did not have the necessary mens rea when he initially drove onto the officer’s foot, he later became aware that the car was resting on the officer’s foot and deliberately refused to move it.

At that point, the actus reus was still continuing and Fagan had formed the necessary mens rea.

Therefore, the actus reus and mens rea coincided.

Legal Principle

Where an act is considered a continuing act, the defendant does not need to possess the necessary mens rea at the exact moment when the act first begins.

It is sufficient if the defendant forms the required mens rea while the actus reus is still continuing.

Therefore, an initially accidental act can lead to criminal liability if the defendant later forms the required mens rea while the act continues.

Complete — What Fagan Establishes

Fagan establishes that some criminal acts can be treated as continuing acts.

An act that begins accidentally may become criminal if the defendant later develops the necessary mens rea while the act is still continuing.

The case also confirms the general principle that actus reus and mens rea must coincide.

However, they do not necessarily have to arise at the exact same moment at which the conduct first begins.

Fagan’s refusal to remove the car from the police officer’s foot was treated as part of the continuing battery rather than merely as a separate omission.

What Is Not Complete / Limits of the Rule

Fagan does not mean that every failure to correct an accidental act creates criminal liability.

The continuing-act principle applies only where the original act can properly be regarded as continuing.

If the actus reus has already been completely finished before the defendant develops the necessary mens rea, the later guilty state of mind will generally not make the earlier innocent act criminal.

The case should also not simply be treated as an example of criminal liability for an omission.

The court regarded the defendant’s conduct as a continuing positive act, rather than liability being based solely on his failure to move the car.

Importance

Fagan is an important authority on the requirement that actus reus and mens rea must coincide.

It demonstrates that where the actus reus is continuing, the defendant may become criminally liable if the necessary mens rea develops during the continuation of that act.

Key Rule

Where the actus reus is a continuing act, D may be criminally liable if the required mens rea is formed while that act is still continuing, even though the act originally began accidentally.