Fagan v Commissioner of Police for the Metropolis [1969] 1 Q.B. 439

Actus reus – assault of policeman – car driven on to policeman’s foot


Fagan was sat in his car when he was approached by a police officer who told him to move the vehicle. Fagan did so, reversed his car and rolled it on to the foot of the police officer. The officer forcefully told him to move the car off his foot at which point Fagan swore at him and refused to move vehicle and turned the engine off. Fagan was convicted of assaulting a police officer in the execution of his duty. Fagan subsequently appealed the decision.


Fagan appealed on the basis that there cannot be an offence in assault in omitting to act and that driving on to the officer’s foot was accidental, meaning that he was lacking mens rea when the act causing damage had occurred. The legal issue here was whether the prosecution had proven facts which had amounted to an assault. For an assault to be committed both actus reus and mens rea must be established at the same time.


It was agreed that an omission cannot establish an assault. The court held that:

‘Although assault is an independent crime and is to be treated as such, for practical purposes today, assault is generally synonymous with battery.’ (at page 433)

On this basis, it was held that Fagan’s crime was not the refusal to move the car but that having driven on to the foot of the officer and decided not to cease the act, he had established a continual act of battery. This meant that actus reus and mens rea were present and as such, an assault was committed. Fagan’s conviction was upheld.