Factual and Procedural Background
In the early morning, the Principal attempted to rape the Victim, who was heavily intoxicated and vulnerable. The Appellant watched, encouraged the Principal, assisted in moving the Victim and removing her underwear, and remained present while the Principal attempted penetration. A Witness alerted the police. [1]
The Principal was convicted of attempted rape and sexual assaults. The Appellant was convicted of attempted rape as a secondary party and of sexual assault by slapping the Victim; this appeal concerned only the attempted-rape conviction. [2][3][4]
The appeal was brought from the Crown Court. The Appellant challenged the trial judge’s directions concerning the mens rea of attempted rape and the mens rea required of a secondary party. [5][6][7]
Legal Issues Presented
- Whether, for attempted rape, the prosecution had to prove that the Appellant intended the Victim not to consent, in addition to intending penetration. [8][9]
- Whether the trial judge wrongly directed the jury on the mental element required of a secondary party to attempted rape. [10][11]
- Whether any misdirection rendered the conviction unsafe. [12][13]
Arguments of the Parties
Appellant’s Arguments
- The prosecution had to prove intent in relation to each element of attempted rape, including an intention that the Victim would not consent. [9]
- For secondary liability, the jury should have considered whether the Appellant intended the Principal to penetrate the Victim without reasonably believing that she consented. [14]
- The Appellant also argued that he had to know that the Victim was not consenting, because lack of consent was a fact necessary to make the penetration criminal. [15]
Respondent’s Arguments
- The Respondent relied on R -v- Khan, submitting that the prosecution needed to prove intent to penetrate in circumstances involving the relevant absence of consent and belief, but did not need to prove an intention that the Victim should not consent. [16]
- The Respondent argued that lack of consent was not a fact necessary for the penetration to be criminal and that the trial direction was therefore proper. [17]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R -v- Khan [1990] 2 All ER 783 |
For attempted rape, the intent relates to the physical act of penetration; the defendant need not intend the victim’s lack of consent. |
The Court held that the reasoning remained applicable under the Sexual Offences Act 2003. [16][18][19] |
| Attorney-General’s Reference (No 3 of 1992) [1994] All ER 121 |
Approval of the approach in Khan concerning intent to commit an offence and the remaining mental state required for the substantive offence. |
The Court relied on its reasoning as support for the correctness of Khan. [20][19] |
| R -v- Page and Rogers [2014] EWCA Crim 186 |
An attempt to convert criminal property requires an intention to convert property that is criminal property. |
The Court distinguished the case because the alleged principal here could have completed the offence of rape, unlike the defendants in Page and Rogers. [21][22][23] |
| R -v- Pace and Rogers |
The opinion refers to the same criminal-property case under this variation of the name. |
The Court stated that it disclosed no inconsistency with Khan. [24] |
| R v Gould [1968] 2 QB 65 |
The Court of Appeal Criminal Division may depart from its previous decisions where they were wrongly decided or adherence would risk injustice. |
The Court found no reason to depart from Khan and no injustice in applying it. [19][25] |
| R -v- Jogee [2016] UKSC 8 |
A secondary party must intend to assist or encourage the commission of the crime and know existing facts necessary for it to be criminal; where the principal crime requires a particular intent, the secondary party must intend assistance with that intent. |
The Court held that the secondary party must know of the Victim’s lack of consent, although the directions sufficiently addressed the closely related issue of reasonable belief on the facts. [11][26][27][28] |
| R -v- Cogan and Leake [1976] QB 217 |
A secondary party to rape may be guilty where that party knows of the victim’s lack of consent, even if the principal is apparently unaware of it. |
The Court held that the case supported, rather than undermined, the requirement that a secondary party know of the lack of consent. [29][30] |
Court’s Reasoning and Analysis
The Court observed that rape under section 1(1) of the Sexual Offences Act 2003 requires intentional penetration, absence of consent and absence of a reasonable belief in consent. Attempted rape under section 1(1) of the Criminal Attempts Act 1981 requires an act more than merely preparatory, done with intent to commit the offence. [31][32][33][34]
Following Khan, the Court held that the prosecution need not prove an intention that the Victim should not consent. It is sufficient to prove the intent to penetrate together with the circumstances and mental state required for rape. The statutory changes since Khan did not undermine that reasoning. [35][36]
The Court rejected the proposed analogy with Page and Rogers, because that case concerned property which could never have been criminal property, whereas the Principal could have completed the offence of rape if not stopped. [21][22][24]
Applying Jogee, the Court held that lack of consent is a necessary fact transforming penetration into rape. A secondary party must therefore know of the Victim’s lack of consent. [17][28]
The trial judge had not expressly directed the jury that they had to be sure the Appellant knew the Victim was not consenting. That was a misdirection. However, the evidence showed that the Victim was unconscious, the Appellant had been close to the events and had physically assisted with her, and he gave no evidence to rebut the inference that he knew she could not consent. [37][13]
The Court concluded that the jury would inevitably have reached the same conclusion had the correct question been asked. The misdirection therefore did not render the conviction unsafe. [12][13]
Holding and Implications
Appeal dismissed. The Court upheld the Appellant’s conviction for attempted rape as a secondary party, despite finding that the jury had been misdirected about the required mental element. [13][38]
The direct effect was that the conviction remained in force. The Court found no injustice on the facts and did not identify any broader consequence beyond applying the stated principles to this appeal. [25][38]