Pace & Anor v The Crown

Factual and Procedural Background

The appeals arise from convictions of two appellants, employees at a licensed scrap metal yard, for attempting to conceal, disguise or convert criminal property contrary to section 327(1) of the Proceeds of Crime Act 2002 ("the 2002 Act"). The yard was investigated as part of a police operation targeting scrap metal theft, with undercover officers delivering purportedly stolen metal items. The appellants were convicted of attempting to convert criminal property based on suspicion that the property was stolen, although the items were in fact police property and not stolen. The trial judge directed the jury that suspicion sufficed as the mental element (mens rea) for attempt. Both appellants appealed against their convictions, challenging the trial judge’s legal directions and the sufficiency of the evidence.

The trial included applications by the defendants to stay proceedings on grounds of abuse of process, including police entrapment tactics and destruction of CCTV evidence; these applications were rejected. The Crown Court trial resulted in convictions on single counts for each appellant, with fines imposed. The appeals were expedited due to the significance of the legal issue for other pending prosecutions involving similar facts and charges.

Legal Issues Presented

1. What is the required mental element (mens rea) for the offence of criminal attempt under section 1 of the Criminal Attempts Act 1981 when charged with attempting to convert criminal property under section 327 of the 2002 Act?
2. Specifically, does suspicion suffice as the mental element for attempt, or is a higher standard such as intent or belief required?
3. Whether the trial judge erred in rejecting the submission of no case to answer based on the mens rea issue.

Arguments of the Parties

Appellants' Arguments

• The mens rea for the substantive offence under section 327 includes knowledge or suspicion, but the mens rea for attempt under section 1 of the 1981 Act requires intent, not mere suspicion.
• Suspicion may suffice for the substantive offence but cannot suffice for an attempt; intent to commit the offence is necessary.
• They relied on analogy with conspiracy law under section 1 of the Criminal Law Act 1977, which requires knowledge or intent, not suspicion.
• Suspicion is too low a standard to constitute intent, particularly where the substantive offence requires the property to be criminal property in fact.
• The trial judge’s directions allowing suspicion as sufficient mens rea for attempt were legally incorrect.

Crown's Arguments

• The 2002 Act expressly provides that the substantive offence may be committed with knowledge or suspicion, reflecting Parliament’s intention to include suspicion as a sufficient mental element.
• It would be undesirable and inconsistent to require a higher mens rea for attempt than for the substantive offence.
• The mens rea for attempt should be knowledge or suspicion, consistent with the substantive offence under section 327.
• Cases such as Khan (attempted rape) support that the mens rea for attempt corresponds to that of the substantive offence.
• Allowing a higher standard for attempt would create confusing and multiple levels of mens rea within money laundering offences.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Whybrow (1951) 35 Cr App R 141	Intent to commit the consequence is required for attempt; e.g., intent to kill for attempted murder.	Illustrates that the mental element for attempt may be higher than for the substantive offence.
Mohan (1974) 60 Cr App R 272	Intent is essential for attempt even if the substantive offence requires no specific intent.	Confirms that attempt requires intent, rejecting recklessness as sufficient mens rea.
Khan (1990) 91 Cr App R 29	Mens rea for attempt corresponds to that of substantive offence where recklessness is involved.	Not decisive here as recklessness was mens rea in Khan; the case supports that attempt mens rea aligns with substantive offence.
AG's Reference (No 3 of 1992) (1994) 98 Cr App R 383	Defendant must intend to supply the missing elements of the substantive offence for attempt.	Supports appellants’ argument that intent to convert criminal property is required, not mere suspicion.
Anderton v Ryan (1985) 81 Cr App R 166	Initial interpretation of 1981 Act on impossibility and mens rea for attempt.	Later overruled but minority opinion supports intent as relevant mens rea for attempt.
Shivpuri (1986) 83 Cr App R 178	Intent transforms an otherwise innocent act into a crime for attempt, even if the substantive offence is impossible.	Confirms that intent is central to attempt liability.
Montila [2004] UKHL 50	Property must in fact be criminal property for substantive offence under money laundering provisions.	Establishes that the substantive offence requires actual criminal property, supporting that attempt requires intent to convert such property.
Harmer [2005] EWCA Crim 1	Conspiracy requires intention or knowledge that property is proceeds of crime; suspicion insufficient.	Supports analogy that attempt similarly requires intent, not mere suspicion.
Saik [2006] UKHL 18	Conspiracy requires intention or knowledge regarding material facts; suspicion insufficient.	Supports higher mens rea for conspiracy and by analogy for attempt.
Millward v Vernon [1987] Crim LR 393	Recklessness insufficient for attempt; intent required.	Supports the principle that attempt requires intent, not lower mental states.

Court's Reasoning and Analysis

The court began its analysis by focusing on section 1(1) of the Criminal Attempts Act 1981, which requires an intent to commit an offence combined with an act more than merely preparatory. The court emphasized that "intent to commit an offence" must include intent as to all elements of the offence, including the property being criminal property.

The court rejected the Crown's argument that suspicion suffices as mens rea for attempt. It reasoned that the substantive offence under section 327 of the 2002 Act requires the property to be criminal property, which itself requires knowledge or suspicion that the property represents proceeds of crime. However, for attempt liability, the accused must intend to convert criminal property, which entails intent that the property is criminal property, not mere suspicion.

The court found it illogical to impose liability for attempt where a defendant only suspects but does not intend the property to be criminal property, especially given that such a defendant would not be liable for the substantive offence if the property is not criminal property in fact.

In support, the court drew on the statutory provisions and case law relating to conspiracy under section 1 of the Criminal Law Act 1977, which requires intention or knowledge, not suspicion. The court noted the coherence expected between the 1977 and 1981 Acts, both inchoate offences, and the principle that conspiracy requires a higher mens rea than the substantive offence. By analogy, the court concluded that attempt similarly requires a higher mens rea than suspicion.

The court reviewed relevant authority, including Mohan, Khan, Montila, and Saik, and found that while some cases supported the Crown’s position, none were decisive or applicable to the present facts. Particularly, Khan involved recklessness and a different offence context. Montila confirmed that the substantive offence requires actual criminal property, reinforcing the need for intent for attempt.

Consequently, the court concluded that the trial judge erred in allowing suspicion as sufficient mens rea for attempt and in rejecting the submission of no case to answer. The jury directions permitting conviction on suspicion were legally wrong, rendering the convictions unsafe.

Holding and Implications

The appeals are ALLOWED.

The court held that for a count of attempted money laundering under section 1 of the Criminal Attempts Act 1981 read with section 327 of the Proceeds of Crime Act 2002, proof of suspicion alone is insufficient as the mental element. Intention to commit the offence, including intention that the property be criminal property, is required.

This decision overturns the convictions of the appellants, as the trial judge’s directions and ruling on no case to answer were flawed. The ruling establishes that charges of attempting to convert criminal property cannot be sustained on proof of suspicion alone where the substantive offence cannot be committed because the property is not criminal property in fact.

The court acknowledged that this judgment may complicate prosecutions for attempted money laundering in cases involving scrap metal that is not actually stolen. Prosecutors may need to consider alternative charges, such as attempted handling, which require proof of a higher mental element than suspicion. No new precedent beyond this particular legal interpretation was set, but the ruling will affect pending and future cases involving similar facts and charges.