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 78）。 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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