Can there be assault / battery by omission?

In Fagan (1969), the Court of Appeal claimed that ‘a mere omission to act cannot amount to an assault’. Is this correct?

By James Manwaring (Associate Professor of Law, Homerton College, University of Cambridge)

Open Also listed under Actus reus Last reviewed 1 November 2026

Overview

In Fagan (1969), the defendant accidentally drove onto a police officer’s foot. The officer shouted to D to get off, but D refused to move until the officer protested further. C was convicted of assaulting (ie battering) the officer. D appealed to the High Court on the basis that his mere omission to remove the car could not amount to an assault. The High Court unanimously accepted that as a proposition of law. (Though the majority held that his conduct amounted to a ‘continuing act’.) However, subsequent cases–often without citing Fagan–have upheld convictions for assaults/batteries which seem intuitively to constitute omissions.

Authorities against assault-by-omission

In Fagan (1969), James J (with whom Lord Parker CJ agreed) held (at 444) that ‘To constitute the offence of assault some intentional act must have been performed: a mere omission to act cannot amount to an assault.’ While dissenting on the ultimate question, Bridge J agreed (at 446) that “No mere omission to act can amount to an assault.”

Authorities favouring assault-by-omission

In DPP v K, the defendant schoolchild was convicted of assault occasioning actual bodily harm for placing acid into a hand dryer, which subsequently blew acid onto C next user’s face, causing scarring. The trial judge, in keeping with Fagan held that D’s omission to warn others could not amount to assault. Upon the prosecution appeal, however, and without citing Fagan, the High Court held that D had assaulted C ‘just as truly … as if he had himself switched the machine on’ (27). Notably, the judgment was given by Parker LJ, who formed part of the majority in Fagan. Whether or how the judgment was compatible with Fagan is unclear.

In DPP v Santa-Bermudez, the defendant ticket tout was stopped and searched by C police officer. C asked D to turn out his pockets, which revealed needles. C asked D multiple times whether D had any more needles before commencing the search. D lied that he did not. Upon searching him, D was pricked by a needle. D was acquitted of assault occasioning actual bodily harm, for want of any positive act. Upon the proseuction appeal, however, the High Court held that D could indeed be liable for assault. Maurice Kay J deprecated ‘quasi theological distinctions between acts and omissions’, suggesting that the case fell within the ‘creation of danger’ principle, used elsewhere to hold defendants liable for the consequences of their omissions.

Conclusion

The language of Fagan was unequivocal that omissions cannot amount to an assault. But subsequent High Court cases have implicitly rejected this position. The Court of Appeal should clarify which view is correct.