ACCORDING to section 1(1) of the Criminal Attempts Act 1981, the mental element for attempt is intention to commit a substantive offence. But what exactly must be intended? The actus reus elements of substantive offences can be divided into acts, consequences and circumstances. Whilst it makes sense to speak of intending acts and consequences, “intention” does not relate naturally to circumstances, the existence of which might be outside the control of the defendant and may already exist at the time of acting. This difficulty has been avoided for the offence of statutory conspiracy, since section 1(2) of the Criminal Law Act 1977 specifies the mental element as being intention or knowledge relating to a particular fact or circumstance. For attempt, the Court of Appeal in Khan [1990] 1 W.L.R. 813 held that acts and consequences arising from physical activity must be intended, but, since the natural meaning of intention does not extend to circumstances, the mental element of the substantive offence relating to circumstances also applies to the attempt. So, as was recognised in that case, for attempted rape the defendant must intend to have sex, this being the relevant physical act, reckless as to whether the victim lacked consent, this being the circumstance. With the change in the mental element for rape following the Sexual Offences Act 2003, the defendant now must have no reasonable belief in the victim's consent. This interpretation of the mental element for attempt both respects the statutory language and ensures that the purpose of the crime of attempt is respected. If intention was required for all the elements of a substantive offence such as rape, the defendant could only be convicted of attempting the offence if he intended to have sex with someone whom he intended was not consenting. This would radically limit the ambit of attempted rape, since it could not be committed if the defendant unsuccessfully tried to have sex being indifferent as to the victim's consent or if the defendant was intoxicated such that he failed to consider whether or not the victim consented.
Despite the sensible interpretation of the mental element for attempt in Khan, the Court of Appeal in Pace and Rogers [2014] EWCA Crim 186 has destabilised the offence by holding that the only relevant mental element is intention. The case concerned a police operation to test whether scrap yards were prepared to buy stolen metal. The police offered scrap metal for sale to the defendants who purchased it. Had the metal been stolen, the defendants would have been guilty of the crime of converting criminal property, contrary to section 327(1) of the Proceeds of Crime Act 2002, if they had suspected that the metal had been stolen: section 340(3)(b). In fact, the metal was the property of the police and so not stolen. So the defendants were charged with attempting to convert stolen property. The trial judge had held that it was sufficient for the attempt that the defendant suspected that the metal was stolen. The Court of Appeal disagreed. It was held that the mental element for attempt required the defendant to intend all the elements of the substantive offence and, shockingly, the Court saw no linguistic or purposive basis for any alternative interpretation. Consequently, the defendants had to intend the metal to be stolen. Since this had not been established, the convictions were quashed. Khan was tentatively distinguished, apparently on the basis that the substantive offence in that case admitted recklessness as the mental element, although it is unclear why that was considered to be relevant. But the ratio of Pace and Rogers requiring proof of intention only is inconsistent with Khan, so if Pace is followed a defendant would now only be guilty of attempted rape if he intended that the victim would not be consenting to sex.
One reason for the Court of Appeal's confusion in Pace and Rogers arose from the earlier decision of the same court in Attorney-General's Reference (No. 3 of 1992) [1994] 1 W.L.R. 409, where it was held that the mental element for attempting to damage property being reckless as to whether life was endangered, was an intention to damage property and recklessness as to the endangerment of life. Here the role of recklessness in the attempt can be justified, not because it relates to a circumstance of the crime, but because it is a pure mental element which is unrelated to any element of the actus reus. For the substantive offence it is not necessary to show that anybody's life has been endangered; it suffices that the defendant had unjustifiably foreseen the risk of such endangerment. It follows that a mental element of the substantive offence will apply to the attempt where that element does not relate to any part of the actus reus. A similar rule applies to statutory conspiracy: Saik [2006] UKHL 18, [2007] 1 A.C. 18, at [4] per Lord Nicholls. The difficulty caused by the Attorney-General's Reference is that the court emphasised that, for an attempt, there must be an intention on the part of the defendant to supply the “missing physical element of the completed offence”: at 417. It is unclear what is meant by a “physical element”. Should “stolen property” be considered to be a physical element? But this is unnecessarily complicated. The “missing physical element” test was obiter and was probably intended simply to reflect the distinction between acts/consequences and circumstances, so that the decision is consistent with Khan, which was anyway approved. This part of the judgment is best forgotten and certainly did not require the Court in Pace and Rogers to reach the decision it did.
If Pace and Rogers is of general application to criminal attempts, it follows that the ambit of that crime is drastically restricted. But there is no need for such a restriction. The Court could have acquitted the defendants without undermining the law of attempt, had attention been focused on the fact that the metal had not been stolen. It followed that the defendants had actually been charged with an impossible attempt, as the Court acknowledged. Although the fact that the commission of an offence is impossible is no defence to a criminal attempt (Criminal Attempts Act 1981, s. 1(2)), impossibility affects the identification of the appropriate mental element. This is because section 1(3) 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. Whilst the meaning of this provision is not a model of clarity, it is obviously applicable in the context of an impossible attempt. For, if a defendant intended to act and bring about consequences which would not constitute a crime, he can still be convicted of an attempt if, on the facts as he believed them to be, the substantive offence would be committed. So, if the defendant had converted goods which were not stolen, he could be convicted of attempting to convert stolen goods if he believed them to be stolen. It follows that the defendants in Pace and Rogers were properly acquitted of the attempt if they only suspected rather than believed that the metal had been stolen.
How could the Court of Appeal have got this decision so wrong? With careful interpretation of the statute the judges could have preserved the ambit of attempt, whilst acquitting the defendants. Although it is easy for a commentator to criticise a decision of the appellate court, divorced from the intense pressures on the judiciary at the appellate level particularly in the Criminal Division, if this commentator was marking this judgment as an essay it would be covered with red ink and be awarded a lower second.
Something needs to be done – and quickly – to restore criminal attempts. Rather than statutory reform, which would be unfortunate, and an appeal to the Supreme Court, which would take time, the decision should simply be ignored as per incuriam, even though all relevant statutory provisions and authorities were cited; they were simply not understood. For the avoidance of any doubt, in future the mental element for a criminal attempt should be interpreted as follows:
(1) Relevant acts and prohibited consequences of the substantive offence must be intended.
(2) The mental element of the substantive offence relating to circumstances applies to the attempt. So, had the metal been stolen but not actually converted, it would have been sufficient that the defendants suspected this, assuming they had done a more than merely preparatory act.
(3) Any mental element of the substantive offence which is unrelated to an actus reus element of that offence also applies to the attempt.
(4) Where the commission of the substantive offence is impossible, the facts should be judged as the defendant believed them to be. If, in the light of that belief, the offence would be possible, the defendant can be considered to have intended to commit the offence.
It follows that the mental element for conspiracy and attempt are distinct, but that is justifiable since attempt is much closer to the commission of the substantive offence than a conspiracy, which consequently requires proof of more significant culpability. This framework for analysing the mental element of attempt accords with common sense, fulfils public policy objectives, and does no violence to the words of the statute.
