Pace & Anor v R.

Facts

The defendants ran a scrap metal business. In an undercover operation, a police officer offered them scrap metal and said that it was stolen. The defendants agreed to buy it. The metal was not in fact stolen property. They were charged with attempting to commit an offence concerning criminal property, the full offence being capable of commission where the defendant merely suspected that the property was criminal.

Issue

What state of mind as to the circumstance that the property is criminal property must be proved for an attempt under section 1 of the Criminal Attempts Act 1981 where the full offence requires only suspicion, and whether suspicion is enough for the attempt.

Held

Appeals allowed and the convictions quashed. Intention to commit the offence required more than suspicion that the property was criminal, and the direction that suspicion was enough was wrong.

Ratio

• Intention to commit the full offence is required for an attempt, and where the full offence includes a circumstance as to which suspicion would suffice, an attempt requires knowledge or belief that the circumstance exists; mere suspicion is not enough.
• The fault element for an attempt is therefore not the same as that for the complete offence, since an attempt requires the defendant to intend to bring about the relevant offence, which implies a higher state of mind as to its ingredients.

Key reasoning

• Section 1(1) of the Criminal Attempts Act 1981 requires an intent to commit the offence, and it would be inconsistent with that to hold a defendant liable for an attempt where he merely suspected that the factual elements existed.
• The court considered the earlier authority on the fault element of attempts as to circumstances, in particular Khan [1990] 1 WLR 813, but held that it could not justify treating suspicion as sufficient where an attempt requires an intention to commit the offence.
• An intention to deal with property as criminal property can be formed only by someone who knows or believes it to be criminal, since a person who only suspects cannot be said to intend to commit the offence of dealing with criminal property.

Where it fits in the module

In the Inchoate Liability topic the case is used to examine the mental element of attempt and the treatment of recklessness and suspicion about circumstances. It is read with Khan and the Criminal Attempts Act 1981 in the debate over whether an attempt requires intention as to every element or only as to the consequence.

Criticisms

• Requiring knowledge or belief for an attempt but only suspicion for the full offence creates the anomaly that it is easier to commit the full offence than to attempt it, which sits oddly with the idea that attempt is a lesser inchoate form.
• The distinction between belief and suspicion is difficult to apply in undercover operations, where the defendant may be willing to deal whether the property is criminal or not.
• The reasoning is hard to square with Khan, in which the fault element of an attempt as to circumstances was treated as the same as for the complete offence, and the court did not clearly explain why suspicion should be treated differently.