It is a requirement of law that for there to be an offense, both the physical element (actus reus) and the mental element (mens rea) must exist. Not only must both elements exist, but there is a further requirement that they must exist simultaneously. Without the concurrence of these elements there is no crime.

However, there are some exceptions to this rule. The exceptions involves situations where congruence of the physical and mental elements may be lacking but, the courts may still go ahead to presume the concurrence from the circumstances of the criminal conduct.

The first exception involves a situation where the actus reus is a continuous one. In that case, the mens rea can occur at any time and will be deemed to have coincided with the actus reus. In the case of Fagan V metropolitan Commissioners (1968) 3 All E.R., 442, a police officer asked Fagan to remove his car from the road, but while doing so the tyre rested on the officer’s foot unknown to Fagan. The officer asked him to remove it but, he hesitated for a while before doing so. It was held that the mens rea coincided with the actus reus and therefore he was liable.

In the second exception, where the mens rea is a continuous one, it will be deemed to coincide with the actus reus when the latter occurs. This was illustrated in the case of A.G. Ireland V. Gallagher (1963) AC, 348.

The third exception holds that, where the actus reus forms part of a series of acts forming part of the same transaction which is continuous, mens rea will be deemed to be continuous and to coincide with any criminal act committed as part of the whole plan when it is committed. The case of Thabo Melli V. R (1954) 1 All E.R., 373 is very instructive on this point.

The third exception applies only to a situation where there is a prearranged plan.