Fagan v Commissioner of Police – Case Summary

Fagan v Commissioner of Police of the Metropolis

High Court

Citations: [1969] 1 QB 439; [1968] 3 WLR 1120; [1968] 3 All ER 442; (1968) 52 Cr App R 700; (1969) 133 JP 16; (1968) 112 SJ 800; [1968] CLY 633.


A police constable asked the defendant to park his car in order to question him. The defendant complied, but in the process accidentally drove onto the constable’s foot. The police constable asked the defendant to move his car off their foot. The defendant initially refused, saying the constable could ‘wait’. He moved the car a short time later.

The defendant was convicted of assaulting a police officer (under a now-defunct statutory provision). He appealed his conviction. The defendant argued that he lacked the mens rea because he did not intend to touch the constable at the time he drove over the foot.

  1. Did Fagan have the mens rea of the offence at the same time as he performed the actus reus?
  2. Can a battery be committed using an instrument or weapon controlled by the defendant?

The High Court upheld the defendant’s conviction. This was on the basis that the defendant’s acts were continuing, and at some point during this continuing act he intended to maintain pressure to the constable’s foot.

This Case is Authority For…

There is no need for the defendant to have the mens rea of an offence from the outset of the actus reus. So long as the actus reus has yet to be completed, it is possible to superimpose a later mens rea to complete the offence. Touching someone is an example of a continuing actus reus.

Battery can be committed using an instrument or weapon controlled by the defendant, such as a car.


While this case was decided under the criminal law, it has also been cited by the courts as relevant authority for the tort of battery. This is because battery and assault are defined similarly in tort as in criminal law.

This case can also be used as authority for the actus reus and mens rea of assault. Assault was defined per curiam in this case as any intentional or reckless act which causes the victim to apprehend immediate and unlawful personal violence.

Bridge J dissented in this case, arguing that leaving a car on a man’s foot should be characterised as an omission, not a continuing act. As such, he argued, it should be subject to the rule against liability for omissions. Bridge J agreed with the majority that continuing acts were possible, such as holding a stick against a person. However, he distinguished what the defendant had done in the present case because it involved no effort by the defendant to maintain.