R v Pace and Rogers [2014] EWCA Crim 186; [2014] 1 WLR 2867
Facts
A father and son were involved in a scrap-metal business visited by undercover police officers. The officers offered items while making statements suggesting that the material was stolen. The transactions included property actually controlled by the police, so it was not criminal property in the relevant sense. The defendants were prosecuted for attempted money laundering rather than a completed offence involving genuine criminal proceeds. They challenged the trial judge's conclusion that suspicion, sufficient for the relevant substantive offence, also supplied the mental element of the attempt. The Court of Appeal considered that distinct statutory requirement.
Legal Issue
Was suspicion that property was criminal sufficient for attempted money laundering, or did the prosecution need to establish the stronger mental element required for an attempt?
Held
The Court of Appeal allowed the appeals and quashed the convictions. Suspicion alone did not establish the mental element required for the attempted money-laundering counts. The trial judge had wrongly treated the substantive offence's mental element as sufficient without applying the distinct requirement in section 1 of the Criminal Attempts Act 1981. Because the items were police property, the analysis had to accommodate the Act's provisions on impossible attempts and the facts as the defendants believed them to be. It would therefore be misleading to demand literal knowledge that the items were stolen when they were not. The central error was permitting conviction on suspicion alone.
⭐ Legal Principle
Suspicion sufficient for a substantive money-laundering offence does not necessarily satisfy the mental element of an attempt. Pace requires the attempt provision to be applied independently, including the defendant's belief about circumstances where the completed offence is factually impossible; suspicion alone was insufficient.
Significance
Pace is useful with Shivpuri because it separates impossible facts from insufficient intent. Police property can prevent completion of the substantive offence without necessarily preventing an attempt, but the prosecution must still prove the required mental state. It is also a warning against transferring mens rea mechanically from a completed offence to an inchoate one. The judgment's discussion of intent should be applied in its money-laundering context, with attention to the particular elements and other authorities on attempts.
Common exam questions about this case
Why was the substantive offence's suspicion requirement insufficient?
The defendants were charged with attempts, which engage the distinct mental-element requirement in the Criminal Attempts Act 1981. Pace held that suspicion alone could not establish those attempted money-laundering counts. The prosecutor cannot simply copy the lesser mental threshold of the completed offence into the attempt analysis.
Did police ownership automatically make an attempt impossible in law?
No. The 1981 Act allows liability for factually impossible attempts by examining the circumstances as the defendant believed them to be. Police ownership prevented the property being genuine criminal proceeds, but did not by itself answer the attempt charge. The necessary intention and belief still had to be proved.
Why is actual knowledge that these items were stolen an inaccurate shorthand?
The items were not stolen criminal property, so literal knowledge of that fact was unavailable. The relevant analysis involves the defendant's belief about the circumstances and the statutory attempt requirements. Pace's important distinction is that mere suspicion did not suffice, not that impossible attempts involving police property are categorically excluded.