R v Pace and Rogers [2014] EWCA Crim 186, [2014] 1 W.L.R. 2867

Key point

  • The mens rea for attempt requires intent as to the requisite circumstances of the substantive offence, even if the substantive offence requires a lesser form of mens rea


  • Ds ran a scrap metal business, they were approached by undercover police officers and offered metal that officers intimated was stolen, but was not in fact stolen and belonged to the police
  • Ds were charged with attempt to conceal, disguise or convert criminal property
  • Mens rea of the substantive offence (s327 of Proceeds of Crime Act 2002) requires proof that they ‘knew or suspected’ that the metal was stolen
  • The trial judge rejected the defendants’ submission of no case to answer, holding that suspicion as to the criminal nature of the property in question, as opposed to knowledge or belief, was capable of constituting the mens rea for the attempt with which they were charged, and he directed the jury accordingly

Held (Court of Appeal)

  • Appeal allowed – the mens rea for the offence of attempt requires intention rather than mere suspicion that the scrap metal was criminal property

Davis LJ

On the mens rea of attempt

  • “Turning, then to s1(1) we consider that, as a matter of ordinary language and in accordance with principle, an ‘intent to commit an offence’ connotes an intent to commit all elements of the offence”
  • Since a constituent element of the offence was disguising or converting criminal property, an intent to commit that offence involved an intent that the property should be criminal property
  • It is insufficient to show that the defendant suspected, as opposed to knew or believed, that the property was criminal property

Comparison was drawn to conspiracy

  • The House of Lords in Saik held that there must be knowledge or intention as to the circumstance elements of the substantive offence
  • Interpretation of the Criminal Attempts Act 1981 should take into account the Criminal Attempts Act 1977, since the 1981 Act was introduced after the 1977 Act and both attempt and conspiracy and attempt are inchoate offences

On preceding cases

  • The decision in Khan was not decisive, as it concerned an offence that based liability on recklessness and the offence was not impossible unlike in this case
  • Davis LJ also pointed out that in Khan the court made it clear that it was not purporting to set out an approach that would apply to every offence
  • AG’s Reference No. 3 was also in a different context from the existing case



  • This decision is controversial given its departure from earlier cases Khan and AG’s Reference No. 3, a ruling by the Supreme Court is needed to settle the issue

Arguments in support of the decision

  • It creates a higher level of culpability for attempt in comparison to the substantive offence, which is justified as liability might arise where little, if any actual harm was caused
  • It is a literal interpretation of the statute since intent to commit the crime should be intent to all its circumstances

Arguments against against the decision

  • Graham Virgo argues that the decision unduly restricted the scope of attempt, the case should instead be decided on the ground that Ds did not believe that the scrap metal was stolen and thus s1(3)(b) is not met
  • Matt Dyson suggests that the interpretation of s1(1) is plausible, for reasons of policy it should not be followed, for example, to be charged with attempted rape the defendant would have to intend that the victim refuse consent
Inchoate Liability Cases
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