1 ELEMENTS of CRIMINAL LIAbILITy
Problems arise in fixing liability if there is a lapse in time after the actus reus before the
mens rea comes into being and, equally, in situations where the mens rea precedes the
actus reus.
Actus reus occurring before mens rea
This means that the defendant completes the prohibited act before he forms the prohibited
state of mind. The scenario in figure 1.1 is an example of this.
Two distinct approaches have been used to secure a conviction in situations where the actus
reus is complete prior to the formation of mens rea:
■ treating the actus reus as a continuing act Fagan see below; and,
■ basing liability on failure to act after creating a dangerous situation miller see pages 7–8.
ExAm TIP
Lack of coincidence is a popular examination topic. you will need to be able to explain
why lack of coincidence is a problem and how the courts have tackled this. A good
grasp of cases such as Fagan, miller and church is important as the facts demonstrate
the problems with lack of coincidence and the judgments illustrate the creativity of the
judiciary in overcoming this impediment to conviction.
KEy CAsE
Fagan v. Metropolitan Police Commissioner [1969] 1 qB 439 dC
Concerning: coincidence of actus reus and mens rea
Facts
The defendant accidentally stopped his car on a policeman’s foot but then refused to
move when he realised this. He appealed against his conviction for assaulting a police
officer in the execution of his duty on the basis that at the time of the actus reus when
his car made contact with the policeman’s foot he had no mens rea because it was
accidental and by the time he formed mens rea refusing to move there was no act
upon which to base liability he merely refused to undo that which he had already done.
Legal principle
It was held that the actus reus of assault in the sense of a battery came into being
when contact was first made between the car and the policeman’s foot. This actus reus
continued for the whole time that the car remained on the foot, only ending when the
car was moved. At the point in time that the defendant became aware of the contact
and refused to move, he developed the requisite mens rea and liability was complete.
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