“suspicion” that property is stolen does not fulfil the mens rea of an attempt to conceal, disguise or convert criminal property – even though it satisfies that for the substantive offence.
The appellants worked at a scrap metal hard. They purchased purportedly stolen metal from undercover police officers. They were both charged under section 1(1) of the Criminal Attempts Act 1981 ("the 1981 Act") in that they "attempted to conceal, disguise or convert criminal property…knowing or suspecting it to represent…the proceeds of criminal conduct in contravention of section 327(1)(c) of the Proceeds of Crime Act 2002" ("the 2002 Act").
In fact, none of the items was stolen: they were owned by the police.
The trial judge decided that "suspicion" satisfied the applicable mens rea for the attempt. After the defence's unsuccessful submissions of no case to answer on this point, they appealed that, inter alia, the trial judged erred on this point at half-time and in his summing-up. The summing-up included the following: "The law is clear: the prosecution must prove…he either knew or suspected that they were stolen or had otherwise been obtained dishonestly"; "suspicion…falls below knowledge or belief".
The appellants argued that the mens rea for criminal attempt need not necessarily be the same as that for the substantive offence. Whilst, under s.1(2) and (3) of the 1981 Act, it is possible to attempt to commit an "impossible" offence, s.1(3)(b) makes clear that the applicable mens rea is one of belief, not suspicion. This argument was supported by the analogous principles relating to criminal conspiracy under s.1 of the Criminal Law Act 1977 ("the 1977 Act"), where knowledge and intent are required.
The Crown submitted that it would be undesirable for there to be a different mens rea for attempt and the substantive offences; Parliament included suspicion, as well as knowledge, as the a mens rea for the substantive offence.
Held, allowing the appeal, an "intent to commit an offence" in s.1(1) of the 1981 Act connotes, as a matter of ordinary language and in accordance with principle, an intent to commit all the elements of the offence. A constituent element of converting criminal property is that the property is criminal property. The Crown, in effect, sought to make it a criminal offence to intend to convert property suspecting, if not knowing, that it is stolen. But that is not what s.327, read with s.340(3), of the 2002 Act provides.
Such a conclusion is, indeed, supported by s.1 of the 1977 Act as interpreted in Harmer  2 Cr App R 2 and Saik  2 Cr App R 26. Whilst a conspiracy is different from an attempt, it is relevant for three reasons: the provisions of s.1 of the 1977 Act were introduced by the 1981 Act itself, which invites a similar approach; offences of attempt and conspiracy are both inchoate offences; it is not difficult to envisage charges of attempt and conspiracy to be interchangeable.
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