Judgment
The Divisional Court agreed that assault cannot be committed by an omission. However, in this case, the crime was not an omission to move the car; rather, it constituted a continual act of battery. The offence was not complete until the moment Fagan realised that he had driven onto the foot of the officer and, in deciding not to cease this continual act, formed an intent amounting to the mens rea for common assault. Since both mens rea and actus reus were present, an assault had been committed, and Fagan's conviction was upheld.
The case also demonstrates an example of creating a dangerous situation, an omission such as that of R v Miller who set fire to house not of his property and failed to contain or control the situation but instead ignored the situation, and found guilty of recklessly causing injury by ommission.
Read more about this topic: Fagan V Metropolitan Police Commissioner
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