Criminal

Assault with intent to resist arrest: belief in lawfulness of arrest not part of mens rea - erroneous belief that arrest unlawful therefore no defenceR v Lee: CA (Rose LJ, Newman and Rafferty JJ): 29 September 2000

The defendant assaulted two police officers who had arrested him for driving with excess blood alcohol.

He was convicted of two counts of assault with intent to resist arrest contrary to s.38 of the Offences Against the Person Act 1861.

The defendant appealed on the ground that he genuinely, albeit wrongly, believed that his arrest was unlawful.

Gareth Patterson (assigned by the Registrar of Criminal Appeals) for the defendant.

Edmund Fowler (instructed by the Crown Prosecution Service, Maidstone) for the Crown.

Held, dismissing the appeal, that the mens rea required for an offence of assault with intent to resist arrest, contrary to s.38, was that the defendant intended to resist arrest and that he knew that the person whom he assaulted was a person seeking to arrest him; that it was not an element of the mens rea that the defendant honestly believed that the arrest was unlawful; and that, accordingly the defendant had no defence.