Principles of Criminal Liability 2: Mens Rea

Transcription

1 Principles of Criminal Liability 2: Mens Rea By the end of this unit, you will be able to (AO1): Explain the different ways mens rea can be formed in the law. Describe what is meant by direct and oblique intent, supporting it with reference to relevant cases Understand what is meant by recklessness in the law Describe what is meant by transferred malice and coincidence and their effect on D s liability. You will also be able to evaluate (AO2): The development of the law on oblique intent, and the proposals for reforming it. How objective and subjective approaches have affected the law on recklessness Whether the development of transferred malice and coincidence are justified in the law. Homework 1. Research the following cases: a. Callow v Tillstone (1900) 64 JP 823 b. Sweet v Parsley [1970] AC 132 c. B v DPP [2000] 2 AC Re-write your omissions essays, aiming to improve your attainment by one grade. How will I be assessed? We will look at a sample essay on this topic and you will mark it to ensure you are confident what the demands of A2 essay writing are. To demonstrate your understanding, you will be assessed on all three introductory units through a 60 mark DRAG test, which you will have two weeks to revise for and will be set after the next topic. Key Terms: Term Means Term Means Recklessness Motive Direct intent Oblique intent Foresight of Consequences Transferred malice Co-incidence Continuing Act 1

2 Introduction: Mens Rea Mens rea literally means guilty mind. It is generally the most important element in allocating blame and justifying any future punishment and generally refers to Ds state of mind at the time of the offence. It is often called the fault element of the crime and is normally the element that can turn an innocent act into a guilty one! Silly Task: Look at the following scenarios. How would you turn them into offences? And what offence? Scenario How turn it into an offence? Which offence? Jane is in a kitchen and picks up a knife Patrick picks up a phone in the classroom James opens a window. and each crime may have more than one element of MR. If this is the case all the elements need to be proven. Example: Theft Element One: Element Two: Not all crimes require the same level of fault. Generally speaking, the more serious the crime the higher the level of fault expected from D. Murder Involuntary Manslaughter Mens Rea 2

3 What about Motive? Is it important in the criminal law? It certainly is in the criminal law programmes on the TV more that whodunit, we want to know whydunit but the court has a rather different approach! R v Steane 1947 (CA) Ratio: Lord Goddard: A man is taken to intend the natural consequences of his acts but the motive of a man s act and his intention in doing the act are, in law, different things 3

4 Types of Mens Rea 1 Intention Whilst you could intend to commit any offence, no matter how minor, here we are focused on crimes which require intention as part of their proof e.g. theft, murder. These tend to be the more serious crimes, with the more serious fault element reflecting this. Introduction: Intention is not actually defined anywhere in the law, so we have to look at how the courts have interpreted it. What other words could you use to describe some one s intention? Key point: The law is rarely straight forward, and here there are at least four types of criminal intention! Specific Direct aka express Basic Oblique aka indirect Type One: Direct Intent [or Express] Simply put, this means you both foresee and intend the consequence which occurs. e.g. I pull a gun, point it at you and say, You re dead. I then pull the trigger. This is the case in the majority of cases, although I may not even need to say the words! It has been described as the courts as a wish, hope, desire etc. The test for intent is subjective. This means that it is based on what D, in those circumstances thought, not what the reasonable person would think. R v Mohan 1975 Ratio: a decision to bring about, in so far as it lies within the accused power( the prohibited consequence), no matter whether the accused desired that consequence of his act or not 4

5 Type Two: Oblique Intent *This is a really complicated area and probably one of the worst ones we will do!* What does it mean? This is where D intends one consequence (e.g. arson) but another occurs (e.g. murder). Clearly we can t say that he has a direct intent to kill, but could he have known that this might be another outcome and therefore impliedly intend it? The answer hinges on whether the death was foreseeable and indeed, just how foreseeable something has to be to be intended in the law. Why is it so important? Well if we can prove oblique intent, then we can convict D of murder or s.18 GBH. However, if it cannot be proven, then the most they can be convicted of is manslaughter or s.20 GBH so it can make a big difference to D! What s the problem with this area of the law? How far should we hold you responsible for something that might happen? Task: Look at the grid below. In each of the following circumstances, V is shot and killed. All of you should be able to decide which scenario fits which term Impossible Unlikely Possible? Probable Highly Probable Virtually Certain Certain 1. A man fires a shotgun out of the window of a remote farmhouse 2. A man fires a shotgun which he is holding directly at the head of his victim 3. A man fires a shotgun out of the window of a shop in the high street 4. A man fires a shotgun in the direction of a bus queue twenty feet away 5. A man fires a shotgun into the air on the moon (no other astronauts around) 6. A man fires a shotgun at the head of someone stood in his doorway. 7. A man fires a shotgun at a bus queue six foot away. Most of you should be able to label at what point D will be considered to have a direct intent D will have direct intent when. Because. Some of you should be able to decide at what point you think D should be liable for murder and why. D will be liable for murder when Because 5

6 Meaning of key terms: Foresight of Consequences Because proving what is on someone s mind is an incredibly difficult thing to do, we have to look for evidence of their intentions. This normally comes as a result of their actions, and we can then use it as evidence of a possible intent. Important Point: This is just evidence, not clear proof of an intent! Why was there a problem? DPP v Smith (1961) D involved in a robbery, V was a policeman and tried to stop him by clinging to the bonnet. He was shaken off into the path of another vehicle and killed. D was charged with murder. Was he guilty? 1. Why might this outcome be unfair to Mr Smith? 2. Why could the House of Lords not simply just change their minds and change the law? So the government had to step in and they passed Criminal Justice Act 1967 s.8 which sets out the legal test for proof of intent. A court or jury, in determining whether a person has committed an offence: a. shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions: but b. shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences as appear proper in the circumstances. So what does this mean? Evidence of intention is a question of, and so is left to the to decide on the basis of any evidence they feel is relevant. This means that foresight of consequences is only of intention, and the jury can if they want ignore it. The section makes it clear that D must foresee it as more than and, but does not say how much more they must foresee it by. This is left to the rest of the cases, and the courts! 6

7 So what happened next? We have to work out what the test actually is! Hyam v DPP (1975) The court said the test for foresight was that D must have foreseen that death or GBH was a highly probable result. AO2 Thinking: Why might this approach to the test be unfair to a defendant? R v Moloney (1985) Ratio: The House of Lords ruled that foresight of the consequences is only evidence of intention. (It is not enough to form intention in its own right) and the probability must be overwhelming. This next section has been overruled by later cases: Bridge LJ set down a two stage test (to decide whether consequences were foreseen) to be put before juries: 1. Was death or really serious injury a natural consequence of the defendant s act? and 2. Did D foresee that consequence as being a natural result of his act? 1. Look at the test, and then back s.8. What had Lord Bridge forgotten? 2. Should oblique intent have even been an issue here? Why/Why not? 7

8 R v Hancock & Shankland (1986) DD were miners who were on strike & trying to stop another miner going to work. They dropped a concrete clock from bridge intending to block the taxi carrying the miner. It hit the taxi, killing the driver. Ds were charged with murder, and convicted after the trial judge used the Moloney direction. R v Nedrick (1986) *Key case* CA The CA decided to use this case to clarify the rules and set an easy to understand test for the jury: 1. How probable was the consequence which resulted from D s voluntary act? and 2. Did D foresee the consequence? Those consequences should be foreseen as a virtual certainty. If all this can be proven, then the jury may infer intent from the circumstances. 1. What do you notice about the two branches of this test? 2. How might this test have changed the outcome for D in Hyam v DPP? 3. Why might the word infer be so important here? 8

9 *KEY CASE* R v Woollin [1998] UKHL 28 LORD STEYN The case in a nutshell The appellant lost his temper and threw his three-month-old son on to a hard surface. His son sustained a fractured skull and died. The appellant was charged with murder. The issue was whether the appellant had the intention to cause serious harm [and was liable for murder]. The appellant denied that he had any such intention. Subject to one qualification, the Recorder of Leeds summed up in accordance with the guidance given by Lord Lane, C.J. in Nedrick... [T]owards the end of his summing up the judge [at first instance] directed the jury that if they were satisfied that the appellant "must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder." The jury found that the appellant had the necessary intention and they convicted the appellant of murder. counsel for the appellant argued that by directing the jury in terms of substantial risk the judge illegitimately widened the mental element of murder. It is plain that a direction [to the jury which uses the words] "substantial risk" of causing serious injury is wider than a direction framed in terms of appreciation of a "virtual certainty. If Lord Lane correctly stated the law in Nedrick, the judge's direction in terms of substantial risk was wrong. Student Task: Read the extract and answer the following questions in as much detail as you can 1. Summarise the key facts of the case. 2. Why did D argue that he was not guilty of the murder? 3. Do Woollin s actions amount to the AR of murder? in Nedrick the Court of Appeal felt compelled to provide a model direction for the assistance of trial judges [on oblique intent] Lord Lane observed: "When determining whether the defendant had the necessary intent, it may therefore by helpful for a jury to ask themselves two questions. (1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. 4. Can you spot the mistake made by the trial judge? This is the reason that D was appealling "Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence." (My emphasis added) 9

10 over a period of twelve years since Nedrick the test of foresight of virtual certainty has apparently caused no practical difficulties. It is simple and clear. It is true that it may exclude a conviction of murder in the often cited terrorist example where a member of the bomb disposal team is killed. In such a case it may realistically be said that the terrorist did not foresee the killing of a member of the bomb disposal team as a virtual certainty. That may be a consequence of not framing the principle in terms of risk taking. Such cases ought to cause no substantial difficulty since immediately below murder there is available a verdict of manslaughter which may attract in the discretion of the court a life sentence. I am satisfied that the Nedrick test, which was squarely based on the decision of the House in Moloney, is pitched at the right level of foresight. It follows that judge should not have departed from the Nedrick direction. By using the phrase "substantial risk" the judge blurred the line between intention and recklessness, and hence between murder and manslaughter. The misdirection enlarged the scope of the mental element required for murder. It was a material misdirection In my view the conviction of murder is unsafe. The conviction of murder must be quashed. 5. What does Lord Steyn think of the Nedrick test? Do you agree? 6. Is the Nedrick test absolute? Why/ why not? In other words, if the jury is able to say yes to both branches, do they have to find that he has the intention and convict him of murder? The status of Nedrick In my view Lord Lane's judgment in Nedrick provided valuable assistance to trial judges. The model direction is by now a tried-andtested formula. Trial judges ought to continue to use it. [Criminal professors have] observed that the use of the words "to infer" may detract from the clarity of the model direction. I agree. I would substitute the words "to find." LORD HOPE OF CRAIGHEAD My Lords, I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Steyn. I agree with it, and I wish to add only these brief comments. 7. What modification do they suggest to the Nedrick decision? 8. What happens to D s conviction for murder? Why?. I attach great importance to the search for a direction which is both clear and simple. It should be expressed in as few words as possible. That is essential if it is to be intelligible. A jury cannot be expected to absorb and apply a direction which attempts to deal with every situation which might conceivably arise. I think that the Nedrick direction, fulfils this requirement admirably. But the substitution of the word "find" for "infer" is an improvement, in the interests of clarity, and I also would make this change to it. Stretch yourself! The test which is confirmed by the House of Lords in Woollin would have been enough to convict him of murder if the judge had got the direction right. Can you explain why this statement is right in the law? 10

11 So, where does that leave us? The most recent statement on the law from the Court of Appeal (and a local case MK!). R v Matthews & Alleyne (2003) Grounds of appeal: the trial judge told the jury that if drowning was a virtual certainty and [the appellants] appreciated that hey must have had the intention of killing him. DD appealed on the basis that the direction went beyond what was permitted by Woollin and equated foresight with intention AO2 Development: What issues might there be with this decision? What does it seem to say about foresight of consequences? Consolidation: I am sick of Bob, my pupil. He never does homework, and is constantly on his mobile. I decide I cannot put up with this any longer and make a plan blow up E7, knowing that he ll be in there during lesson time, but I will be out on a course. The classroom blows up, killing the rest of the class as well. 1. Am I liable for the murder of Bob? Why? 2. Does it matter in the law that I do it because I am fed up with him? 3. Am I liable for the deaths of the rest of the class? Why? 4. What if, whilst I was on a course, I become remorseful and phone in a warning to the police, but because of my accent, the operator thought I said fifty instead of fifteen and so the bomb disposal person is killed, as he is in the classroom 15 minutes later? 11

12 Making sure you ve got the scary bits Key information Working with the person next to you: 1. Sort out the cards and match the case, the ratio and the facts. 2. Complete the grid on the key cases below, using this information. Name Facts Test/ Point of Law Outcome and Why DPP v Smith Criminal Justice Act 1967 D set fire to the house of her love rival, by pouring petrol through the letterbox, killing two children inside. a. Was death or really serious injury a natural consequence of D s act? And b. Did D foresee that consequence or injury as a natural result of his act? If yes to both, jury find D had the necessary intent. Foresight of consequences is only evidence of intention, it is not enough to be intention on its own. The more something is likely to occur, the more it is foreseen. The more it is foreseen, the more it is intended. R v Nedrick Due to the misdirection of the judge, D s conviction for murder was replaced with one for manslaughter. DD robbed the defendant, who told them he could not swim. They then pushed him in the River Ouse and he drowned. 12

13 The meaning of intention in criminal law has now been clearly settled by decisions of the courts and there is no longer any need for Parliament to legislate upon the matter. Discuss whether you agree with this statement [50 Marks] Criminal intent is one of a number of mens rea that can be use when convicting a defendant, other areas of mens rea like recklessness or negligence have been defined much more clearly, while intent remains dangerously precarious in definition. This seems extremely unfair when it is taken into context that criminal intent is used as the mens rea in murder case, and a conviction holds a mandatory sentence of life. One of the largest problems with the definition of criminal intent is its breadth, as both direct and oblique intent can be used. Direct intent is said to be a true desire to bring about a consequence and oblique intent is stated as a state of mind where the defendant appreciates his conduct is virtually certain to lead to a particular conclusion (even if that conclusion was not desired), however oblique intent is not always defined in this way and used to include the foresight of highly probable causes, as in the case of R v Smith 1961, which would now be a manslaughter case, so if oblique intent is difficult to define then the whole concept of criminal intent seems impossible. The mens rea of murder also complicates the issue of a clear and satisfactory definition of criminal intent, lord Coke (who stated the only definition of murder we hold today) wrote that intent for murder was malice aforethought either by express or implied intent which significantly widens the area of interpretation. Express intent in murder is said to be a true desire to kill while implied intent is the more shaky area of intent to cause really serious harm (GBH) again these areas are widened by the fact that both of these carry the direct and oblique interpretations as well, which makes a definition problematical. The definition of criminal intetn as it stands now is defined in the case of Matthews and Alleyne which included indirect intention, the judge directed the jury to find him guilty if they thought that the defendants saw a virtual certainty of the victim drowning. This case overturned the precedent set by Moloney, Nedrick and Woollin and defined criminal intention as direct and oblique intent, a much wider category. This definition however is far from clear and satisfactory, firstly although direct and oblique intention have been defined it seems that in certain crimes or circumstances different rules apply (Matthews and Alleyne) this leaves the law inconsistent and any definition is therefore opaque and illogical. And secondly, is it fair clear or satisfactory to convict a defendant on the same charge as both intent to kill and the virtual certainty that the defendant s actions will lead to really serious harm? Virtual certainties are a dangerous area to try and define. The question is can parliament make a statute that is able to define criminal intention, a statute that is clear, simple, fair and effective or will they simply make a clouded matter much more unclear. In the Criminal justice Act of 1967, parliament defined the proof of criminal intent in section 8 of the act. It reads that a court or jury, in determining whether a person has committed an offence: a. Shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but 13

14 b. Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances. This was the last attempt that parliament gave upon trying to define intention, and it included oblique intention, which was overturned by R v Moloney 1985 and followed by Nedrick and Woollin. The fact that it stated that the jury could find the defendant guilty if they think the evidence infers it was enough for the statute to be easily overturned with the common law. The act gave the jury the option, which would mean the judgement law with them and that as it didn t define it properly, it was left to the interpretation of the judiciary, which it eventually was in the House of Lords who went against the direction in the act, and since it was plainly vague (i.e. infers) it was easy to do. The definition of criminal intent as it stands is far from clear and certainly not satisfactory, although its definition is much better than it has been in the past, for example changing from highly probable to virtual certainty it still holds too many inconsistencies and maybe has too much breadth (e.g. implied oblique intent). There is also the problem of the case variations, although a consistent decision is needed, different cases have different circumstances (the difference between the intent of Moloney and that of Matthews and Alleyne) and different interpretations are needed sometimes. Would it be a good idea to have a statute that pull all diverse into a few pigeonholes? This may cause more judicial problems than is solved, not to mention the face that a statute would be subject to the judge who interpreted it; with the different ways of interpretation (literal, mischief) it would be difficult to have a consistent decision and would depend completely on all judges interpreting the statute literally. The act of 1967 made little impact why would this one unless it closed more doors than it opened making sure everything was followed tightly to the letter. If a new statute was introduced, then other areas of mens rea should be taken into account, like provocation, the Homicide Act 1957 has an impact on intention and was written at a time when the penalty for a murder conviction was much more serious (the death penalty) so mens rea was taken into a much broader context in order to save those who had a more distorted view of the crime, maybe a statute should be introduced laying down at least a minimum of more modern principles of intention and leaving certain areas of the law as they are now, a mix of both the present definition and a new contemporary ideal of intention which would reflect are society and culture. AO1: Mark: AO2: Mark: Overall Comment and mark: Strengths: Strengths: Weaknesses or omissions: Weaknesses or omissions: Mark: Grade:. 14

15 Type of Mens Rea [2] Recklessness This area is a little clearer [thankfully!!!]. This is currently defined as: The conscious taking of an unjustifiable risk. What does this mean? D need only have an awareness of the possibility of a risk to be found criminally liable. Recklessness is sometimes implied in the phrase maliciously, especially when it appears in statutes (well... mostly). Offences which have recklessness as some form of their mens rea include assault and battery, criminal damage and actual bodily harm as well as manslaughter The main debate of this topic is whether the test for recklessness should be objective or subjective. Objective means: Subjective means: R v Cunningham (1957) Fact: The House of Lords quashed his conviction, holding that the test for recklessness was:. Whether D realised that there was a risk of the outcome occurring, and went ahead anyway This established that the test was case again now), and was the standard case for years, (and is the 15

16 However, the House of Lords made the following decision, which seemed to imply that Cunningham wasn t the only test available for recklessness and so cause a lot of problems in the criminal law for many years R v Caldwell (1981) The court decided that liability through recklessness could occur in two situations: 1. D realised the risk and went ahead; or 2. D had not thought about the possibility of any risk but went ahead It is this second one which causes the difficulties! What does this seem to imply about the test for recklessness? Student task: So what was so wrong with this approach? Below are some of the key critical points made about this case. All of you should be able to explain why the points are a problem Most of you should be able to support your reasoning with reference to a case or example Some of you should be able to refer to a range of counter-arguments to develop your discussion. Point Explanation However Caldwell has changed the test for recklessness completely. The test is now too broad and doesn t take account of D s characteristics It has been expanded to other offences such as manslaughter The reasonable man is always reasonable. 16

17 So were the consequences of the decision in Caldwell really that bad? Elliot v C (1983) Fact: D AO2 Thinking: Why do you think that some people argue the outcome of the case is wrong morally and legally? it was also used to establish liability for manslaughter (although this case was later overruled by Adomako) R v Seymour Fact:... and eventually, the House of Lords used the to overrule Caldwell in respect of recklessness for criminal damge. R v G (2003) How much damage can I do with a pile of papers under a wheelie bin? LAW: HL used the Practice Statement to overrule Caldwell the test is: Did D realise that there was a risk and go ahead anyway? DD s convictions were overturned, and the decision was followed in the later case of Cooper (2004). 17

18 Other things which may affect your mens rea: Transferred Malice Meaning: Example: The mens rea of a crime can be transferred from the intended victim to the actual victim. Fred decides to kill Wilma by pushing her out of the window. She falls into Pebbles, causing her to fall out of the window and die as a result of her injuries. Under the doctrine of transferred malice, he would still be liable for her death as Fred s intent to kill Wilma is transferred to Pebbles. Problem: This is a slightly controversial area of the law, and some argue that it should be abolished as we convicting D of a crime that without a voluntary mens rea. How might you justify finding D liable here? R v Latimer 1886 D was a soldier in a pub and aimed his belt at X intending to hit him, because he had insulted him. Instead he hit a woman, V, in the face. A more recent example... R v Mitchell 1983 D pushed into a queue at the Post Office. X (age 76) reprimanded him, and D hit him. X fell into V (aged 94) who fell and eventually died as a result of her injuries. LAW: D was charged with unlawful act manslaughter Bonus Question: What s the unlawful act? 18

19 Limitations on use of Transferred Malice Thinking: Why do we need to limit when this doctrine (theory) applies? 1. Limitation One: Must be the same category of offences! R v Pemblition 1874 Outside a pub, D was involved in a riot. He threw a rock, intending to hit X, but smashed a window in the pub. Charge: Criminal Damage 2. Limitation Two: It can only transfer a limited number of times Attorney-General s Reference No. 3 of 1994 (1997) Court of Appeal: House of Lords: To make any sense of this process there must be some compatibility between the original intention and the actual occurrence, and this is, indeed, what one finds in the cases. There is no such compatibility here. The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person, either at the time or in the future, and intended no harm to the foetus or to the human person which it would become. AO2 Thinking: Whose reasoning do you prefer here: the Court of Appeal or the House of Lords? Explain why and use the facts of the case to support your argument. 19

20 Final Step: Coincidence This is also known as contemporaneity So you have an actus reus, and a mens rea this is the last step. To complete liability, the two must cross or meet at some point. Because this is sometimes easier said that done, the courts have been a little creative in how this happens. General Rule: This may sound obvious, but generally speaking, to be liable for the offence, The mens rea must be present at some time whilst the actus reus is taking place. R v Miller 1983 You know these! Lord Diplock confirmed the existence of coincidence as a theory. Now, to test out how it applied in this case, can you answer the questions below in as much detail as you can? 1. When did D develop the MR of arson under s. 1(1) and (3) of Criminal Damage Act 1971? 2. Why do you think the courts developed this rule? But: The courts seem to look for contemporaneity when it seems that none really exists based on the facts! 20

21 Way round the strict rule [1]: Series of Acts This is where D does one in a series of acts, which keep going until the harm is complete, even if the MR ends early! R v Le Brun D punched his wife on the chin, knocking her unconscious He dragged her away to hide her She hit her head on the pavement & died as a result Is he liable for her manslaughter? R v Church 1965 Thabo Meli v R 1954 The courts confirm that MR may be present at any time until the act is complete, and under the series of acts doctrine, D was liable as he had committed one of a series of acts leading to D s death, and had the MR when he committed that act. 21

22 Way round the strict rule [2]: Continuing Act What if you develop the mens rea after the actus reus has begun? Rule: If D develops MR at any point before the AR is complete, then D will be liable. R v Kaitamaki 1985 D had sex with V, during which he realised that she did not consent. He continued, and when charged with rape, argued that he did not have the MR at penetration the key AR element of rape. Fagan v MPC 1969 *KEY CASE* Read Judge James majority opinion and answer the following questions in as much detail as you can. 1. What happened? 2. What offence was he charged with? 5. Did D commit an act or an omission? 3. Why was it indirect? 6. Why did D argue he should be found not guilty? 4. What was the crucial question in this case? 7. Do you agree with the outcome of the case? Why/why not? Stretching yourself: Read Judge Bridge s dissent. Can you work out why he argues that there was no assault in the case? Do you agree? 22

23 Fagan v MPC 1969 (QBD) A police constable (V) wishing to question the defendant driver (D) directed him to park his vehicle at a precise space against the kerb, whereupon the defendant drove his car on to the police constable's foot. After V had repeated several times, "Get off my foot!" D said "Fuck you, you can wait." The appellant then turned off the ignition or at least the engine stopped running. V then said to the D several times. "Get off my foot!". As a result of the appellant's act or omission V s left big toe was injured. The toe was swollen and slightly bruised. Judgment: JAMES J. The appellant, 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, The sole question is whether the prosecution proved facts which in law amounted to an assault. Mr. Rant for the respondent (P) argues that the first mounting of the foot was an actus reus which act continued until the moment of time at which the wheel was removed. During that continuing act, it is said, the appellant formed the necessary intention to constitute the element of mens rea and once that element was added to the continuing act, an assault took place. In our judgment the question arising, which has been argued on general principles, falls to be decided on the facts of the particular case.. 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 [the car!]. 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. 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.... For our part we think the crucial question is whether in this case the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating until the wheel was removed. For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. It is not necessary that mens rea should be present at the inception [start] 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. In our judgment the Willesden magistrates and quarter sessions were right in law. On the facts found the action of the appellant may have been initially unintentional, but the time came when knowing that the wheel was on the officer's foot the appellant (1) remained seated in the car so that his body through the medium of the car was in contact with the officer, (2) switched off the ignition of the car, (3) maintained the wheel of the car on the foot and (4) used words indicating the intention of keeping the wheel in that position. For our part we cannot regard such conduct as mere omission or inactivity There was an act constituting a battery which at its inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. We would dismiss this appeal 23

24 BRIDGE J. I fully agree with my Lords as to the relevant principles to be applied. No mere omission to act can amount to an assault. Both the elements of actus reus and mens rea must be present at the same time, but the one may be superimposed on the other. It is in the application of these principles to the highly unusual facts of this case that I have, with regret, reached a different conclusion from the majority of the court. I have no sympathy at all for the appellant, who behaved disgracefully. But I have been unable to find any way of regarding the facts which satisfies me that they amounted to the crime of assault. This has not been for want of trying. But at every attempt I have encountered the inescapable question: after the wheel of the appellant's car had accidentally come to rest on the constable's foot, what was it that the appellant did which constituted the act of assault? However the question is approached, the answer I feel obliged to give is: precisely nothing. The car rested on the foot by its own weight and remained stationary by its own inertia. The appellant's fault was that he omitted to manipulate the controls to set it in motion again. Neither the fact that the appellant remained in the driver's seat nor that he switched off the ignition seem to me to be of any relevance. If one man accidentally treads on another's toe or touches him with a stick, but deliberately maintains pressure with foot or stick after the 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. With a reluctantly dissenting voice I would allow this appeal and quash the appellant's conviction. Appeal dismissed. 24