In order to successfully convict for assault the prosecution must establish both the mental element (mens rea) and the physical element (actus reus). The mens rea for assault is the intention to put the victim in fear or cause him or her to apprehend immediate and unlawful violence or recklessly causing the victim to apprehend immediate and unlawful violence.
In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.
Assault per se may not be sufficient to amount to a crime and it is a crime that often goes hand in hand with battery.
Assault is also a crime that cannot be committed by omission and in this instance the court decided that the crime was not the fact that the defendant refused to move his car but the fact that he reversed his car onto the police officer’s foot and if we look at it from that perspective we can establish both the mens rea (the intention to cause the victim to apprehend immediate and unlawful violence) and the actus rues (the act of driving the car onto the police officer’s foot).
As per R v Savage (1991) and R v Parmenter (1991) the type of recklessness that applies to non fatal offences (s.47 OAPA 1861) is subjective recklessness.
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