All change in the mens rea of criminal attempt: Khan on the scrapheap?

John Child
John Child

On the 18th February 2014, the Court of Appeal (Criminal Division) allowed the appeal of defendants Pace and Rogers against convictions for attempting to conceal, disguise or convert criminal property contrary to section 327(1) of the Proceeds of Crime Act 2002 (PCA 2002) and section 1 of the Criminal Attempts Act 1981 (CAA 1981). Breaking from previous authority, the Court of Appeal’s judgement has fundamentally changed the core mens rea requirements for attempts liability. 

Pace and Rogers were employees of a scrap metal yard. On the relevant dates, they were approached by undercover police officers and asked if they were interested in buying stolen scrap metal. The metal was accepted, and the appellants were charged with an attempt to commit the section 327 offence (they could only have attempted the offence as the metal purchased, being police property, was not in fact stolen).

In the court of first instance, the law of attempt was set out and applied to the facts as follows. The actus reus of attempt requires the defendant to complete ‘an act which is more than merely preparatory to the commission of the offence’ (CAA 1981, s1(1)). As the metal purchased by the appellants was not stolen in fact, this requirement may appear problematic: there conduct does not go beyond mere preparation to convert actual stolen property. However, in line with section 1(2) and (3) CAA 1981, a defendant may nevertheless satisfy the actus reus where his acts are more than imagesmerely preparatory on ‘the facts … as he believed them to be’.

The mens rea of attempt requires a defendant to act ‘with intent to commit an offence’ (CAA 1981, s1(1)). In line with this, it was clear from the facts that the appellants intended to receive the goods and to convert them within the meaning of the 2002 Act. However, it was maintained by the appellants that they did not intend or know a vital element of the offence: that the goods were stolen. Despite the evidence against them (including covert recordings of the undercover officers describing the metal as stolen), the defendants claimed that they understood this as nothing more than ‘builders banter’.

Even accepting this claim however, their state of mind was still sufficient to satisfy the mens rea of attempt. This is because, in the case of Khan [1990], it was held that criminal attempt only requires a defendant to intend the physical elements of his  (as opposed to the circumstances of the offence). In Khan itself, this allowed the court to find the defendant liable for attempted rape where he intended the act of penetration (the physical part of the offence) and was reckless as to the non-consent of his victim (the circumstance of the offence). Applying Khan in this case, the trial judge directed the jury that the defendants must intend the converting of the property (physical elements), but that the defendant’s mens rea as to the criminal origin of the property need only mirror the mens rea required for the principal offence. Thus, as section 340(3)(b) PCA 2002 minimally requires ‘suspicion’ as to the criminal origin of the property, this is all that would be required for the attempt to commit that offence as well. On this basis, the appellants were convicted in the Oxford Crown Court, and fined £250 and £1,500 respectively.

The Court of Appeal allowed the defendants appeal against conviction, and ordered their acquittal. The court’s reasoning focused on the mens rea of criminal attempt. For the Court of Appeal, reference to ‘with intent to commit an offence’ (CAA, s1(1)) was to be interpreted to require the defendants to intend every element of the principal offence attempted. Therefore, in the present case, the defendant’s ‘suspicion’ as to the criminal origins of the property would not be sufficient for liability. The court outlined several reasons for this interpretation:

  • This represents the most straightforward reading of the CAA 1981 [61];
  • This interpretation is in line with the recommendations of the Law Commission that formed the basis of the CAA 1981 [45];
  • The mens rea for an attempted offence should be different (require a higher degree of determination) than that of a principal offence [64]; and
  • This interpretation provides consistency with the overlapping offence of conspiracy [65].

The court recognised the potential conflict of this interpretation with that in the case of Khan, the approach relied upon by the Crown Court. As Khan was also decided at the Court of Appeal, the court was not free to overrule that case. Therefore, it was distinguished on the following grounds [52]:

  • Khan involved the mental element of ‘recklessness’ as opposed to ‘suspicion’;
  • The court in Khan expressly stated that they were not intending to create a general rule; and most importantly
  • Unlike the present case, Khan was not an impossible attempt case.

Pace and Rogers is well decided. For the reasons given by the court, and others discussed elsewhere, the legal reasoning in Khan is not sustainable. However, the fact that the court is right in its criticism of Khan makes the current state of the law slightly unfortunate. Placing Pace and Rogers and Khan side by side, the law would suggest that for impossible attempts (Pace and Rogers) intention is required; while for standard (possible) attempts (Khan) intention is required only as to acts and results.

This inconsistency was inevitable given the court’s inability to overrule Khan. However, for as long as it lasts, it remains regrettable: the reasoning of the courts in Khan and Pace and Rogers are not isolated to possible or impossible attempts, they represent alternative approaches across the piste, and one should be preferred over the other. It is likely that Pace and Rogers will be appealed to the Supreme Court, where a definitive (and consistent) choice between these interpretations of mens rea can be made. Failing this, it will be interesting to see if future cases take the lead from Pace and Rogers and begin to distinguish Khan on its facts, perhaps even within ‘possible’ attempts.

This is not, however, the end of the story. Although there has been considerable disagreement between academics concerning the legal reasoning in Khan, there has been general agreement that the facts of Khan warranted liability for attempted rape. This leaves us with a problem. If the logic of Pace and Rogers is extended to possible attempts (as I believe it should be) then a defendant like Khan would not be liable for a criminal attempt. Finding an approach to the mens rea of inchoate liability that catches defendants such as Khan, but does so through a coherent scheme, has created some of the most challenging and exciting criminal law scholarship of the last fifty years.

For example:

  • The Law Commission, Conspiracy and Attempts: Recommending that the Khan approach should be clarified and codified, and that the mens rea of conspiracy should be changed to be consistent with it;
  • Irish Law Reform Commission, Report on Inchoate Offences: Recommending (contrary to Pace and Rogers) that attempt and conspiracy should not be thought of as separate wrongs from the principal offences they apply to, and therefore recommending that the mens rea for inchoate offences should be the same as that required for the principal offence;
  • Williams: Recommending that we should reanalyse cases such as Khan as cases of alternative intention (ie, the defendant in Khan intended to sexually penetrate V with her consent and to do so without her consent: his intention was not contingent on the issue of consent);
  • Stannard: Recommending a policy in which D need only intend missing elements of his principal offence, with mens rea as to other elements allowed to reflect that required for the principal offence (eg, the only missing element of rape in Khan was the penetration, so that is all that would require intention);
  • Child and Hunt: Criticising the approaches recommended by the English and the Irish Law Commissions, and recommending an alternative approach based on ‘belief’.

The decision in Pace and Rogers does not answer this debate, but it does remind us that the answer is still missing.

Dr John Child is Lecturer in Law at the University of Sussex

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