Pace & Anor v R.

Under section 1(1) of the Criminal Attempts Act 1981, an intent to commit an offence ordinarily requires an intent to commit every essential element of it. An attempt may therefore require a higher mental element than the completed offence.

For attempted conversion of criminal property under the Proceeds of Crime Act 2002, the prosecution must prove an intent that the property be criminal property. Suspicion that property is stolen does not suffice, even though suspicion is sufficient for the completed offence. The impossible-attempt provisions do not assist where the Crown alleges suspicion rather than belief.

Undercover police officers took scrap metal, which was in fact police property, to a scrap-metal yard and represented that it had been stolen. The appellants accepted or permitted the acceptance of items on separate occasions. They were convicted at Oxford Crown Court of attempting to conceal, disguise or convert criminal property, contrary to section 1(1) of the Criminal Attempts Act 1981, by reference to section 327 of the Proceeds of Crime Act 2002.

The trial judge directed the jury that suspicion that the metal was stolen could supply the mental element. The appellants contended that, because the goods were not criminal property, suspicion could not found an impossible attempt. They also advanced discrete complaints concerning abuse of process and conversion.

The central issue was whether suspicion was sufficient mens rea for an attempt to convert criminal property where the supposed criminal property did not in fact exist.

1. The appeals were allowed. The convictions were unsafe because the judge erred in rejecting the submission of no case and in directing that suspicion alone was sufficient.

2. Section 1(1) of the Criminal Attempts Act 1981 requires an intent to commit the offence. On its ordinary meaning, that requires intent as to all constituent elements of the offence. The court rejected the Crown’s construction, which would have criminalised an intention to convert property while merely suspecting that it was stolen.

3. Conversion under section 327 of the Proceeds of Crime Act 2002 requires property that is in fact criminal property. That factual provenance is an essential element, notwithstanding that section 340(3)(b) makes knowledge or suspicion sufficient for the mental element of the completed offence. The reasoning in Montila [2004] UKHL 50 applied equally to the 2002 Act.

4. Section 1(3) could not assist the Crown. It operates where the facts were as the defendant believed them to be, but the Crown had put its case on suspicion only. The distinction drawn in cases such as Khan did not govern an inherently impossible attempt of this kind.

5. The conspiracy provisions in the Criminal Law Act 1977, as construed in Harmer [2005] EWCA Crim 1 and Saik [2006] UKHL 18, reinforced that inchoate liability can require intention or knowledge of a factual circumstance although the completed offence permits suspicion.

6. The court refused leave on the separate abuse-of-process grounds. On the prosecution case, the defendants chose to act on an opportunity created by the officers; the judge had properly applied the entrapment principles. It was unnecessary to decide the alternative conversion ground.

In comparable impossible-attempt cases, a charge of attempting to convert criminal property will be ineffective if the prosecution can allege no more than suspicion that the goods were stolen. Deliberate blindness and a failure to ask obvious questions may, depending on the evidence, support an inference of knowledge or belief for a different available charge.

• Court of Appeal (Criminal Division) Allowed both appeals against conviction and held the convictions unsafe because suspicion did not suffice for the charged attempts.
• Crown Court at Oxford Before HHJ Pringle QC, the appellants were convicted on separate counts of attempting to conceal, disguise or convert criminal property. Pace was fined £250 and Rogers £1,500.