Pace and Rogers and the Mens Rea of Criminal Attempt: Khan on the Scrapheap?

COMMENT
Pace and Rogers and the Mens Rea of
Criminal Attempt: Khan on the Scrapheap?
J. J. Child* and Adrian Hunt†
In R v Pace and Rogers1 the Court of Appeal provided a welcome return to
first principles for the mens rea of criminal attempt. The court began with
an analysis of the rationale of attempts as a separate form of liability (and
as a separate wrong) from the principal offence attempted; stressing that
there is nothing anomalous, and indeed there is often merit, in attempts
requiring a narrower mens rea than the principal offence.2 From here, the
court was then able to interpret the mens rea of attempt (Criminal Attempts
Act 1981, s.1(1)) unencumbered by considerations of mens rea as to

other offences, Davis LJ stating simply that ‘“intent to commit an offence”
connotes an intent to commit all elements of the offence’.3
The appellants, Pace and Rogers, worked at a scrap-metal yard. They
were approached by undercover police officers and asked if they were
interested in buying stolen scrap metal. ‘Suspicious’ as to the criminal
origin of the metal, the appellants nevertheless accepted the goods and
were charged with attempting to conceal, disguise or convert criminal
property.4 However, since Pace and Rogers acted without intention or
knowledge as to every element of the offence, their appeal against
conviction for attempted concealment was allowed.
In allowing the appeal, the Court of Appeal rejected the decision of the
court below which had relied on R v Khan.5 Khan is said to be authority for
the proposition within criminal attempt liability that an ‘intention to
commit an offence’ does not mean an intention to commit every element of
the principal offence. According to Khan, persons who act with a mens rea
less than intention as to a circumstance element of the principal offence
are potentially guilty of attempt so long as they intended the conduct and
consequence elements. Applying Khan, the Crown Court had proceeded
in Pace and Rogers to convict the defendants of attempting to conceal the
property, even though they only ‘suspected’ the property to be stolen
(circumstance element), as this was sufficient mens rea for the principal
offence. In reality, of course, the property was not stolen: this was an
impossible attempt.
In this Comment we examine the options that the Supreme Court may
have if, as seems likely, it has to decide on an appeal against the Court of
Appeal’s decision. The Supreme Court could disagree with the Court of
* Lecturer in Law, University of Sussex; e-mail: J.J.Child@sussex.ac.uk.
† Lecturer in Law, University of Birmingham; e-mail: a.hunt@bham.ac.uk.
1 [2014] EWCA Crim 186.
2 Ibid. at [45]–[47] and [64].
3 Ibid. at [62].
4 Contrary to the Proceeds of Crime Act 2002, s. 327(1).
5 [1990] 1 WLR 813; [1990] 2 All ER 783.
220
The Journal of Criminal Law (2014) 78 JCL 220–25
doi:10.1350/jcla.2014.78.3.918

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Pace and Rogers and the Mens Rea of Criminal Attempt
Appeal and generalise the Khan approach to cover impossible attempt
cases such as Pace and Rogers. Alternatively, it might approve of generalising
the Court of Appeal’s approach in Pace and Rogers to cover possible attempts,
thereby overruling Khan. Or it may simply decide that Pace and Rogers
is distinguishable from Khan, allowing the co-existence of the two
approaches. We argue below that in the absence of legislative reform,
Khan should be overruled, and the simple, principled approach outlined
by Davis LJ in Pace and Rogers should be preferred.
Pace and Rogers in historical context
In debates leading to the creation of the Criminal Attempts Act, two major
policy considerations dominated discussions about mens rea: whether D
could be liable for an impossible attempt, and whether attempt should
ever be available where D did not intend or know of certain offence
elements (particularly offence ‘circumstances’). As discrete issues there
appears to be merit in facilitating both. For example, if D tries (but fails) to
sexually penetrate a non-consenting...