R v Khan [1990] 1 WLR 813, [1990] Crim LR 519

Key point

  • For the purposes of s1(1) Criminal Attempts Act 1981, D intends to commit a crime where D intends the act and consequences and is at least reckless about circumstances where recklessness suffices for the main offence


  • Ds were charged with the attempted rape of a 16-year-old girl
  • The trial judge directed the jury that the Ds can be convicted with attempted rape only with the mens rea for the full offence of rape, which was recklessness as to whether the girl had consented at that time

Held (Court of Appeal)

  • Appeal dismissed – the judge did not err in directing the jury

Russell LJ

  • He considered two contrary views on the mens rea of intent:
    • The defendant must intend both the act of sexual intercourse and the circumstances, that the victim does not consent, of the substantive offence
    • The defendant must intend the act but can be reckless as to the circumstances
  • He concluded that the latter view is right: ‘the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely, an intention to have intercourse plus a knowledge of or recklessness as to the woman’s absence of consent’
  • Where no state of mind other than recklessness exists in an offence, there can be no attempt to commit it: examples include reckless driving or reckless arson


  • This view was latter rejected in Pace, where the Court of Appeal held that the words “with intent to commit an offence” involve an intent as to every element constituting the crime including the circumstances
  • Khan is based on the old definition of rape, where recklessness to consent was the mens rea
  • In the 2003 Sexual Offences Act the mens rea for rape is changed to proof that D did not reasonably believe that the victim consented, it remains to be seen following the 2003 Act whether the mens rea for an attempted rape will be a lack of reasonable belief in consent
Inchoate Liability Cases
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