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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Fagan v Commissioner of Police of the Metropolis [1968] EWHC 1 (QB) (31 July 1968) URL: https://www.bailii.org/ew/cases/EWHC/QB/1968/1.html Cite as: [1968] EWHC 1 (QB), [1969] 1 QB 439, (1968) 52 Cr App R 700 |
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[DIVISIONAL COURT]
FAGAN
v.
COMMISSIONER
OF METROPOLITAN POLICE
| 1968 June 28;
July 1, 31 |
LORD PARKER C.J. ,
JAMES and
BRIDGE JJ.
|
Vincent
Martel
Fagan,
was convicted by the Willesden magistrates of assaulting David Morris, a police constable, in the execution of his duty on August 31, 1967. He appealed to quarter sessions. On October 25, 1967, his appeal was heard by Middlesex Quarter Sessions and was dismissed. This matter now comes before the court on appeal by way of case stated from that decision of quarter sessions.
vehicle
and reversed it off the officer's foot. The appellant had either turned the ignition off to stop the engine or turned it off after the engine had stopped running.
Vol.
1, p. 651, where assault is defined. He contends that on the finding of the justices the initial mounting of the wheel could not be an assault and that the act of the wheel mounting the foot came to an end without there being any mens rea. It is argued that thereafter there was no act on the part of the appellant which could constitute an actus reus but only the omission or failure to remove the wheel as soon as he was asked. That failure, it is said, could not in law be an assault, nor could it in law provide the necessary mens rea to convert the original act of mounting the foot into an assault.
views
on this alternative.
violence.
Although “assault” is an independent crime and is to be treated as such, for practical purposes today “assault” is generally synonymous with the term “battery” and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case the “assault” alleged involved a “battery.” Where an assault involves a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand upon another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the
victim.
So for our part we see no difference in principle between the action of stepping on to a person's toe and maintaining that position and the action of driving a car on to a person's foot and sitting in the car whilst its position on the foot is maintained.
victim.
If the act, as distinct from the results thereof, is a continuing act there is a continuing threat to inflict unlawful force. If the assault involves a battery and that battery continues there is a continuing act of assault.
victim's
mind (see the observations of Park B. in Regina
v.
St. George
(1840) 9 C & P 483, 490, 493 . The “mens rea” is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act. On the other hand the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault.
victim
with the intent that the
victim
should suffer.
victim
protests, there is clearly an assault. But there is no true parallel between such cases and the present case. It is not, to my mind, a legitimate use of language to speak of the appellant “holding” or “maintaining” the car wheel on the constable's foot. The expression which corresponds to the reality is that used by the justices in the case stated. They say, quite rightly, that he “allowed” the wheel to remain.Appeal dismissed.
Solicitors: Clinton Davis, Hillman & Parkus; Solicitor, Metropolitan Police.
[Reported by MRS. JENNIFER WINCH, Barrister-at-Law.]
The permission for BAILII to publish the text of this judgment was granted by:
Incorporated Council of Law Reporting for England & Wales
Their assistance is gratefully acknowledged.