Adrian Hunt

Pace and Rogers and the Mens Rea of Criminal Attempt: Khan on the Scrapheap?

In Pace and Rogers the Court of Appeal provided a welcome return to first principles for the mens rea of criminal attempt. They begin with an analysis of the rationale of attempts as a separate form of liability (and as a separate wrong) from the principal offence attempted: stressing that there is nothing anomalous, and indeed there is often merit, in attempts requiring a narrower mens rea than the principal offence. From here, the court are then able to interpret the mens rea of attempt (section 1(1) of the Criminal Attempts Act 1981 (CAA)) unencumbered by considerations of mens rea as to other offences, Davis J stating simply that ‘“intent to commit an offence” connotes an intent to commit all elements of the offence.’ With Pace and Rogers likely to be appealed to the Supreme Court, this comment argues that the approach taken by the Court of Appeal should be followed. In doing so, it is contended that the previous and inconsistent case of Khan should not be distinguished by the Supreme Court, but explicitly overruled.