Fagan v MPG [1969] 1 QB 439, [1968] 3 W.L.R. 1120 

Key point

  • D can be guilty of a crime even though mens rea was not present at the inception of his guilty act but later arose as the act continued

Facts

  • D was told by a police constable to back up his car
  • D unintentionally drove onto the constable’s foot
  • When the constable told him to drive off his foot, D turned off the ignition of his car instead
  • D was convicted of assault on a constable

Issue

  • The intention of assaulting the constable was not present when D initially drove onto the constable’s foot

Held (Court of Appeal)

  • D’s conviction was upheld, there was a continuing act of assault when the intention later arose

James J

  • Although the actus reus and mens rea must be present at same time in an assault, it is not necessary for the mens rea to be present at the inception of the actus reus: it could be superimposed on an existing act
  • However, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault
  • In this case there was a ‘continuing act’: after D drove onto the constable’s foot, he remained in the car and turned off the ignition, these cannot be regarded as omissions

Bridge J

  • Mens rea of assault is to cause the victim to apprehend immediate unlawful personal violence or recklessness as to whether such apprehension is caused

Commentary

  • Contrast this case with Millerhere the failure to remove the car from the constable’s foot was deemed part of a continuing act, while in Miller the failure to prevent the fire from spreading was deemed an omission but Miller was nonetheless guilty as he had a duty to act – they are different ways of reaching the same goal of finding the defendant guilty
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