Inchoate Offences in United Kingdom

Attempt: Mens rea

Michael J. Allen (Textbook on Criminal Law, Twelfth Edition, 2014) says:

“Following the discussion of Khan[1990] 2 All ER 783 and Attorney-General’s Reference
(No. 3 of 1992) [1994] 2 All ER 121 the Court of Appeal has given further consideration to
this issue in Pace and Rogers [2014] EWCA Crim 186.

The police set up a sting operation to try to gain evidence against the defendants, scrap
metal merchants, whom they believed to be dishonest. An undercover police officer
presented them with an opportunity to purchase metal which he pretended had been
stolen. Under s.327 of the Proceeds of Crime Act 2002 it is an offence to convert or
otherwise deal in “criminal property”. Under s. 340(3) POCA property is “criminal” where
(a) it constitutes a person’s benefit from criminal conduct; and (b) the alleged offender
knows or suspects that it constitutes or represents such a benefit. As the property was
not, in fact, stolen, a prosecution for attempt was brought on the basis that the defendants
suspected that the metal was stolen. On appeal from their convictions the Court of Appeal
held that for an attempt D must intend all the elements of the actus reus of the substantive
offence.

This decision, if followed, would amount to a reversal of Khan; but in strict precedent
terms the Court of Appeal in Pace could not overrule the earlier decision in Khan. The
result is confusion. In policy terms following Pace and Rogers would be a retrograde step
and would offer greatly diminished protection to victims in a broad range of offences,
especially sexual offences, if proof of intention as to all elements of the substantive
offence was required to secure a conviction for attempt. Further, it is arguable that as the
defendants were attempting the impossible, as the metal was not stolen, the Court should
have referred to s. 1(3) CAA (see 8.4.4 in the main text), under which proof of belief in the
stolen nature of the goods should have been sufficient to establish liability, and ordered a
retrial providing the prosecution with the opportunity to prove belief. It is to be hoped that
the Court of Appeal takes the earliest opportunity available to it to resolve the confusion
and to reaffirm Khan.”

Definition of Inchoate Offences

Inchoate meaning “not yet completed or undeveloped.” inchoate offences refer to crimes which have not yet been completed.