• In the case of Fagan v MPC [1969] 1 QB 439, [1968] 3 W.L.R. 1120, it was found that even without the necessary mens rea, one can be guilty if it later arises as the guilty act continues.

Facts of Fagan v MPC [1969] 1 QB 439, [1968] 3 W.L.R. 1120

  • D, Fagan, was told to move his car by a police constable
  • Upon backing it up, the D unintentionally drove onto the constable’s foot
  • Instead of driving the car off of the constable’s foot after being notified, the D turned off the ignition
  • The D was convicted of assaulting a policeman, he argued against this stating that he lacked the mens rea required for any offence as his act was purely accidental

Issues in Fagan v MPC [1969] 1 QB 439, [1968] 3 W.L.R. 1120

  • The necessary intention was not present when the D had driven onto the constable’s foot, is he guilty of a crime?

Held by the Court of Appeal

  • Upheld the conviction, and dismissed Fagan’s appeal – the assault had become a continuing act, and the mens rea had later arisen.

Justice James

Mens rea did not have to be present at the actus resus, it can be applied to an existing act

  • “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.” [445]

Applying this to the facts, Justice James could not see any reasons for the conviction to be dismissed – the act was unintentional to begin with by Fagan’s choice to not move the car after knowing what happened established the necessary intention

  • “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.” [445]