Secondary Liability for Attempted Rape: Accessory Must Know of the Complainant’s Non-Consent

1) Introduction

Pop v R [2026] EWCA Crim 774 (CA (Crim Div), 24 June 2026) addresses a narrow but important question: what mens rea must the prosecution prove where a defendant is alleged to be a secondary party (aider/abettor/encourager) to attempted rape under the Sexual Offences Act 2003 and Criminal Attempts Act 1981.

The appellant was convicted (i) as a secondary party to attempted rape (count 1) and (ii) of a separate sexual assault (count 4, not appealed). The principal offender was convicted of attempted rape and sexual assaults. The complainant did not participate in the prosecution.

The key issues were:

  • Ground 1: whether attempted rape requires proof that the defendant intended not only penetration, but also intended that the complainant would not consent.
  • Ground 2: whether, for secondary liability to attempted rape, the accessory’s mental element is “the same as rape” (as directed), or whether R -v- Jogee [2016] UKSC 8 requires a different formulation—especially as to knowledge of the complainant’s lack of consent.

2) Summary of the Judgment

The Court of Appeal dismissed the appeal.

  • Ground 1 rejected: applying R -v- Khan [1990] 2 All ER 783, the prosecution need not prove an “intention that the complainant does not consent” for attempted rape; it is sufficient to prove intent to penetrate plus the circumstances and state of mind required for rape (here: lack of consent and absence of reasonable belief in consent).
  • Ground 2 largely rejected, but with an important correction:
    • The court held it was permissible on these facts to frame the accessory’s mental element by reference to the appellant’s own lack of reasonable belief in consent, rather than forcing the jury to decide what he believed about the principal’s beliefs (a pragmatic application of Jogee where the two are “coterminous”).
    • However, the court held the judge did misdirect the jury by failing to require them to be sure that the appellant knew the complainant was not consenting. Lack of consent is a “fact necessary” for the penetration to be criminal within Jogee.
  • Conviction nevertheless safe: given the complainant’s obvious unconsciousness and the appellant’s close participation, the court concluded the jury would inevitably have found knowledge of non-consent had they been directed correctly.

3) Analysis

A. Precedents Cited and Their Influence

1) R -v- Khan [1990] 2 All ER 783

Khan was the central authority for Ground 1. It held that “intent to commit” rape, for attempt purposes, does not require a separate intent directed at the complainant’s lack of consent; the “attempt” relates to the physical act, while the required mental state mirrors that of the completed offence.

The appellant argued that changes introduced by the Sexual Offences Act 2003 (notably the “reasonable belief” test) undermined Khan. The court rejected that: although the statutory language has changed, rape remains structured as (i) a penetrative act, plus (ii) circumstances of non-consent, plus (iii) a defined defendant mental state relating to consent. That architecture preserved the logic of Khan.

The court also stressed institutional discipline: absent strong reasons, the Criminal Division follows its earlier decisions.

2) Attorney-General's Reference (No 3 of 1992) [1994] All ER 121

This approval of Khan reinforced the court’s reluctance to revisit it. The reference treated Khan as a “common sense” reading of the Criminal Attempts Act 1981: prove intent for the conduct element of the substantive offence, plus whatever additional mental element the substantive offence requires.

3) R -v- Page and Rogers [2014] EWCA Crim 186

The appellant relied on this “impossible attempt” case to argue that attempt requires intent as to all substantive elements (including “non-consent”). The court distinguished it: in R -v- Page and Rogers [2014] EWCA Crim 186, the defendants could never commit the full offence because the property was not “criminal property” at all; by contrast, attempted rape was only “incomplete” because penetration did not occur, not because an essential external condition was impossible.

The court considered there was no inconsistency between requiring intention that property be “criminal” in the conversion context, while not requiring intention that the complainant be non-consenting in rape.

4) R v Gould [1968] 2 QB 65

Cited for the principle that the Court of Appeal may depart from its own prior decisions where they are wrong and adherence risks injustice. The court held there was no basis to depart from Khan.

5) R -v- Jogee [2016] UKSC 8

Jogee governed Ground 2 and did the most “work” in the court’s reasoning. The key propositions applied were:

  • The accessory must intend to assist or encourage the crime (Jogee [9], [10], [90]).
  • The accessory must have knowledge of “any existing facts necessary for it to be criminal” (Jogee [9]).

The court’s novel clarification in this case is to treat lack of consent as one of those “facts necessary” for rape/attempted rape, and thus something a secondary party must know.

6) R -v- Cogan and Leake [1976] QB 217

The respondent invoked R -v- Cogan and Leake [1976] QB 217 to resist the “knowledge of non-consent” requirement for the secondary party. The court held it did not assist: properly analysed through the Jogee lens, the secondary party in Cogan and Leake knew the complainant did not consent, which is consistent with (not contrary to) requiring such knowledge.

B. Legal Reasoning

1) Ground 1: “Intent to commit rape” in attempt does not add an “intent as to non-consent”

The court read s1(1) Criminal Attempts Act 1981 (“with intent to commit an offence”) in line with Khan. It refused to convert the substantive rape elements concerning (i) the complainant’s state of mind (consent) and (ii) the defendant’s belief about it, into an additional requirement that the defendant must positively intend the complainant’s non-consent.

A key policy concern was “perversity”: if “intention that the complainant not consent” were required, a person attempting penetration without caring whether there is consent (and without reasonable belief in consent) might escape liability for attempt, yet become guilty upon minimal penetration. The court regarded that as an untenable gap.

2) Ground 2 (part 1): Accessory’s intent and the principal’s belief—permissible “elision” on these facts

The appellant argued the jury should have been directed to consider whether the appellant intended the principal to penetrate while the principal lacked a reasonable belief in consent. The court accepted this is consistent with Jogee in abstract, but held that in this case the appellant’s own lack of reasonable belief in consent and what he must have appreciated about the principal’s belief were effectively the same. Therefore, the trial judge’s route-to-verdict question—focused on the appellant—was not wrong in this factual setting.

3) Ground 2 (part 2): Knowledge of non-consent is required for secondary liability—mistranslation of “facts necessary”

The court rejected the respondent’s contention that non-consent is not a “fact necessary” for criminality. It reasoned that if the complainant in fact consents, penetration is not rape even if the penetrator irrationally believes otherwise. Non-consent is therefore a necessary condition transforming penetration into rape.

Applying Jogee [9], the accessory must therefore know the complainant is not consenting. The trial judge’s direction, which permitted conviction on proof only that the accessory lacked a reasonable belief in consent, was legally insufficient.

However, the court held the misdirection did not render the conviction unsafe given the overwhelming evidence that the complainant was unconscious and the appellant’s participation (including removing underwear and turning the complainant over).

C. Impact

The decision has two principal effects:

  • Stability for attempt law in sexual offences: It reaffirms that Khan remains good law post-2003: attempted rape does not require a special “intent that the complainant not consent”. Prosecutors must prove intent to penetrate plus the substantive offence’s consent/belief framework, not an additional intent element.
  • A sharper requirement for secondary liability in rape/attempted rape: It clarifies (and in practice tightens) the prosecution case against accessories: for secondary liability, lack of consent is a “fact necessary” and the accessory must know it. Trial directions and routes to verdict should reflect that.

In future cases where the complainant’s non-consent is less obvious than unconsciousness (e.g., coercion, intoxication short of incapacity, or ambiguous communications), this distinction may matter: “no reasonable belief” is not necessarily the same as “knowledge of non-consent”, and Pop confirms the latter is required for accessories.

4) Complex Concepts Simplified

Attempted rape: what “intent” attaches to

Attempt liability (s1(1) Criminal Attempts Act 1981) requires an act “more than preparatory” done “with intent to commit” the offence. In attempted rape, the “intent” focuses on the penetration (the conduct element). The law does not require proof that the defendant positively wanted the complainant not to consent. Instead, the prosecution proves the complainant in fact did not consent and the defendant lacked a reasonable belief in consent.

Secondary liability after Jogee: “knowledge of facts necessary”

To convict an aider/abettor, it is not enough that they helped. They must:

  • intend to assist or encourage; and
  • know the key factual circumstances that make the act a crime.

Pop identifies non-consent as such a key fact in rape/attempted rape: without it, penetration is not rape.

Why the conviction stood despite misdirection (“unsafe” test)

Even where a legal direction is wrong, the Court of Appeal will uphold the conviction if satisfied it is not “unsafe”. Here, the court held the evidence compelled the conclusion that the appellant knew of non-consent: the complainant was unconscious and the appellant actively facilitated events.

5) Conclusion

Pop v R [2026] EWCA Crim 774 confirms two points of continuing and practical importance:

  • Khan endures: attempted rape does not require proof of an intention that the complainant not consent; intent to penetrate plus the consent/belief conditions suffice.
  • Accessories face a distinct consent-related threshold: applying R -v- Jogee [2016] UKSC 8, lack of consent is a “fact necessary” for rape/attempted rape, and a secondary party must be proved to have known of that lack of consent—though a failure to direct this may be cured on “unsafe conviction” analysis in overwhelming cases.

The judgment is therefore both conservative (retaining Khan) and corrective (tightening the articulation of secondary liability where consent is the defining criminal fact).