Court of Appeal (Criminal Division) · Appeal dismissed; Russell LJ gave the judgment of the court
Facts
The defendants attempted to have sexual intercourse with a woman. They did not complete intercourse. The issue was whether they had to be shown to have intended that she not consent, or whether it was enough that they were reckless as to whether she consented.
History
They were convicted of attempted rape at trial on a direction that recklessness as to consent sufficed, and appealed on the ground that the judge misdirected the jury on the mental element.
Issue
Whether, on a charge of attempted rape under s 1 of the Criminal Attempts Act 1981, the prosecution must prove that the defendant intended that the woman should not consent, or whether recklessness as to her lack of consent is enough.
Held
Appeal dismissed. The defendant must intend to have sexual intercourse, but as to the circumstance that the woman does not consent, it is enough that he knows or is reckless about her lack of consent.
Ratio
- On a charge of attempt, the defendant must intend to bring about the conduct and consequences of the offence, but the mental element as to circumstances of the full offence is that required for the full offence, so that recklessness as to consent suffices for attempted rape.
The judgments
Russell LJ (lead)
Held that the intent in attempt means the intent to commit the physical acts of the offence, whereas the mental element as to circumstances need only be that required by the full offence. Applied that to rape, in which recklessness about consent is enough.
Key reasoning
- Section 1 of the 1981 Act requires an intent to commit the offence, which means the intent to do the acts of the offence, and the offence of rape requires intercourse without consent and knowledge of or recklessness as to lack of consent.
- It would be illogical to demand a higher mental element for the attempt than for the full offence as to the circumstance of lack of consent, since the defendant who is reckless in that respect is equally blameworthy.
- The defendants intended to have intercourse and were reckless whether the woman consented, so the mental element for attempted rape was made out.
Where it fits in the module
Topic 7 on inchoate liability covers the mental element of attempt, which is notoriously intention to commit the offence but with unclear application to elements such as circumstances. The case answers that question for rape and is the basis of the general approach that attempt requires no more than the fault element of the full offence for circumstances. It also shows how inchoate liability can depend on the fault standard of the substantive offence.
Criticisms
- Requiring only recklessness as to a circumstance of an attempt sits uneasily with the statutory requirement of an intention to commit the offence, which suggests that intent should extend to all elements.
- The approach produces an inconsistency between the mental element for conduct, where intent is demanded, and circumstance, where recklessness suffices, without a principled explanation.
- Reliance on the logic that attempt should not be harder to prove than the completed offence overlooks the purpose of requiring intent in attempts, which is to confine liability to those who aim at the offence.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself at [1990] 1 WLR 813, [1990] Crim LR 519. Spotted an error? Tell us.