-3

Below I boldened that sentence questioned in the title, and excerpted the fact patterns of the two cases. Please apprise me if you need any more quotations from these cases. All quotes from Herring, Criminal Law: Text, Cases, and Materials (2020 9 ed). p 787.

(3) Both Pace and Rogers and Khan are correct. They are dealing with different situations. In a case of an ‘impossible attempt’ (e.g. where the facts were such that the defendant could never have committed the offence) it must be shown that the defendant intended the crime to take place, as Pace and Rogers states. However, in a ‘possible attempt’ case (where the defendant could have completed the crime, but failed to do so) the mens rea for an attempt can include recklessness as to circumstances.
      The benefit of this view is that it provides a way of saying both cases are correct. The distinction between impossible and possible attempts could be said to be important because section 1(3) of the Criminal Attempts Act states that, if the defendant’s intent would amount to an intent to commit an offence if the facts of the case had been as the defendant believed them to be, he should be regarded as having the intent to commit the offence. That would explain the conclusion in Pace and Rogers that suspicion was not enough for that impossible attempt.8 The difficulty with this view is that the court did not explain the decision in this way. The statement quoted in view (1) seems to refer to a rule about attempts generally and not just impossible attempts.

8 Virgo (2014).

p. 784.

R v Khan (Mohammed Iqbal); R v Dhokia; R v Banga; R v Faiz [1990] 1 WLR 813

Mohammed Iqbal Khan, Mahesh Dhokia, Jaswinder Singh Banga, and Navaid Faiz were charged with the attempted rape of a 16- year- old girl. The appellants and the victim met at a disco and then went to a house. Inside the house some young men had sexual intercourse with the victim and the appellants attempted unsuccessfully to have sexual intercourse with her. The trial judge directed the jury that if the defendants were reckless as to whether or not the victim would have consented to sexual intercourse they could be convicted of attempted rape. Recklessness here included a ‘could not care less’ attitude. They appealed on the basis that the jury should have been directed that they could be convicted of attempted rape only if they knew or intended that the victim was not consenting.

p 785.

R v Pace and Rogers [2014] EWCA Crim 186

Pace and Rogers were scrap metal dealers. They were charged with the offence of attempting to convert criminal property contrary to section 327(1) of the Proceeds of Crime Act 2002. In fact, the property had not been stolen, and the property was part of a sting operation organized by the police. The full offence required proof that the offender suspected the property was stolen. The question for the Court of Appeal was what mens rea was required for the attempted offence. Was it the same as the full offence (suspicion), as the Crown argued, or was intent required, as the appellants claimed?

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How does s 1(3) of the Criminal Attempts Act explain the conclusion in Pace and Rogers that suspicion wasn't enough for that impossible attempt?

The answer is the second sentence of your first quote:

They are dealing with different situations.

The mens rea for an offence under s.1 of the Criminal Attempts Act 1981 is the same as for the substantive offence being attempted in order to secure a safe conviction.

In Khan & Ors the substantive offence was rape under the now repealed Sexual Offences Act 1956 which the Court of Appeal confirmed can be committed recklessly.

Whereas in Pace and Rogers the alleged substantive offence was the conversion of criminal property contrary to the money laundering provisions at s.327(1) of the Proceeds of Crime Act 2002 which requires the mens rea of knowledge, not mere suspicion, that the goods were stolen - but as the goods were lawfully owned by the police at the time of the "sting" the defendants could never have known that they dealing with the proceeds of crime.  See para 78 of the Court's judgement:

...For the purposes of a count of attempted money laundering proof of a mental element of suspicion (only) does not suffice...

(I have not reproduced further extracts from Pace and Rogers, but you may wish to look at paras 48 to 51, 57 and 58, and the cited case law therein.)

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