In 1969, a man referred to simply as “Fagan” was convicted of battery. His crime? He did, precisely, nothing.

The Police Officer’s Foot

Vincent Fagan was having a bad day. A relatively new driver, he was not particularly skilled at parking, and his attempt to pull out of the way of other drivers resulted in a hazard stop halfway into the lane. Sat behind the wheel of his stationary car, Fagan noticed a Police officer hovering nearby. The officer did not look impressed.

Moments later, there was a tap on the windscreen.

Police constable Morris had worked as an officer in North West London for several years. Dangerous parking was one of his pet peeves.

You’re going to have to move, he told Fagan, gesturing towards the curb where he stood. Irritated but keen to avoid trouble, Fagan obliged, and inched the car towards the officer. It was at this point that he felt a small bump beneath the wheels.

Officer Morris, red faced and gesticulating wildly, expressed in no uncertain terms that the bump had been caused by his left foot, which was now stuck under the front wheel of the car.

Move, he told Fagan, his temper rising as pain shot through his foot.

But Fagan’s temper was also rising. Instead of moving the car, he swore back at Morris, and refused to inch the car backwards or forwards.

Eventually, after several minutes of back and forth between the men, Fagan reversed, releasing the officer’s foot. Morris suffered “considerable swelling and bruising” on his left toe, and left the scene determined to make Fagan pay.

The Issues

Fast forward a few months, and Fagan is awaiting judgement on his not-guilty plea by Willesden magistrates. His defence has argued that in order to be convicted of assault, prosecution must prove that Fagan knowingly and intentionally ran over Morris’s foot. Guilt is established by two things: mens rea (the intention or knowledge of wrongdoing, as opposed to the action or conduct of the accused) and actus reus (the action or conduct which is a constituent element of a crime). They argued that, as the initial act was an accident, there was no mens rea when the act which caused the damage had occurred. When he did form the mens rea, he lacked the actus reus, as he did, literally, nothing.

Magistrates were unable to decide whether or not Fagan had intentionally trapped the officers foot. However, they did agree that failing to move the vehicle had been deliberate, and so found him guilty of assault.

The Appeal

Unhappy with this verdict, Fagan and his defence launched an appeal on the basis that there cannot be an offence in assault in omitting to act. The legal issue here was whether the prosecution had proven facts which amounted to assault. For an assault to be committed both actus reus and mens rea must be established at the same time.

In a groundbreaking move, the court rejected the appeal. 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. Although judges agreed that an omission could not establish assault, they held that, for practical purposes, assault was generally synonymous with battery.

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