A fascinating aspect of the legal system is that it is constantly being written, and every case where a judgement is made serves to reinforce, clarify or alter the law as we know it.

These precedents also often lead to rather strange questions, such as whether it is a crime to do nothing, a question that was answered in 1969 in the case of Fagan v Commissioner of Metropolitan Police.

What made this question even stranger was that it was answered by a man accidentally running over a police officer’s foot.

Background

Vincent Fagan was a new driver who was showing the common pitfalls of the newly qualified motorist. In attempting to park, he had ended up halfway into the lane, causing a hazard for other road users, and an annoyance for police constable Morris.

PC Morris was an experienced officer, and the one offence that irked him the most was people parking in dangerous places. He tapped on the windscreen and, somewhat annoyed, directed him to a place where he could park.

Mr Fagen did so, but inadvertently ran over the officer’s foot in the process.

After PC Morris told him to get off his foot, Mr Fagen allegedly swore at him, told him he could wait and the engine of the car stopped. After several minutes, he reluctantly drove off the officer’s foot.

He was arrested for assaulting a police officer who was executing his duties and quickly convicted. However, he appealed because of a rather odd set of circumstances.

Criminal Act And Criminal Mind

In order for someone to be guilty of most crimes, they need to have both a guilty act (actus reus) and a guilty mind (mens rea). In other words, you cannot be convicted of merely thinking of committing a crime without acting on it, although it is more complicated the other way around.

Mr Fagen appealed the case because the initial act of assault was an accident. After all, he didn’t mean to run over PC Morris’ foot but did so trying to follow his commands. This means that there was an actus reus but no mens rea, or at least not one the court could prove.

By contrast, when he left the car on PC Morris’ foot, he was certainly of a guilty and spiteful mind, but he was not committing a criminal act. By definition, he was not acting at all. Therefore there was a guilty mind with no guilty act.

The divisional court that heard this case agreed with this interpretation, given that you cannot commit assault by an omission to act. However, setting this precedent did not set Mr Fagan free.

The court also ruled that conscious omission to act was a conscious act of battery, which would provide a guilty act and therefore prove an assault had been made.

Because he had deliberately not moved off of PC Morris’ foot, he had deliberately stayed on his foot, making him guilty of assault and changing UK law in the process.

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