September 5, 2026
Attempted Rape, the Limits of Khan, and Secondary Liability: R v Pop [2026] EWCA Crim 774
The Court of Appeal has handed down an important judgment clarifying two points of law. Firstly, it clarifies the long-running dispute about whether, for an attempt, intent must be proved as to each element of the offence. Secondly, on the mental element required to convict a secondary party of attempted rape.
Facts
In the early hours of 17 August 2024, Dariush Hashemi attempted to rape LV, a heavily intoxicated and vulnerable woman, in a hotel car park. The appellant asked to watch, observed from close by, and then helped Hashemi reposition LV and pull down her underwear before slapping her exposed buttocks. By the time Hashemi exposed himself and lay on top of her, LV had lost consciousness. A taxi driver intervened and called the police.
Hashemi was convicted as principal of attempted rape and two counts of sexual assault. The appellant was convicted of attempted rape as a secondary party, and of a separate sexual assault not in issue on appeal.
The Two Grounds
There were two grounds of appeal. Firstly, that the Judge was wrong in law to direct the jury that the mens rea for attempted rape is the same as the mens rea for rape. Secondly, that the Judge was wrong in law to direct the jury that the mens rea of an accessory to rape is the same as the mens rea of rape.
Ground 1:mens rea of attempts
On Ground 1, the Court held that R v Khan [1990] 2 All ER 783 remains good law: the mens rea for attempted rape mirrors that for rape itself, notwithstanding the Sexual Offences Act 2003’s later changes to the definition of the completed offence. In reaching its decision, the Court declined to apply Pace and Rogers [2014]. In Pace and Rogers, which concerned money laundering, the Court relied on section 1(1) of the Criminal Attempts Act 1981 to argue that ‘with intent to commit an offence’ meant: with intent to commit each element of the offence. The result of the decision in Pace and Rogers was that even though knowledge or suspicion was sufficient for the full offence of money laundering, it was not sufficient for the attempt.
Ground 2: the secondary liability point
The Court accepted the appellant’s argument on an important aspect of their second ground of appeal i.e., the jury in this case ought to have been directed that they should only convict if sure that the appellant knew that the victim was not consenting. The trial judge’s direction, which asked only about the appellant’s own reasonable belief, was accordingly wrong in law. Applying Jogee, a secondary party must intend to assist or encourage the principal and must know the facts necessary to make the principal’s act criminal. As the Court of Appeal stated in paragraph 36 of the judgment, in order to be guilty, “one of the necessary facts which the secondary party must know is the lack of consent to the act of penetration by the principal offender.”
The Court of Appeal conceded that this might present a higher hurdle to a prosecutor trying to prove rape against a secondary party compared with a principal. However, the Court held that such a result was “not necessarily objectionable.” Indeed, the Court opined that the evidence that the secondary party must have known that the Complainant was not consenting is likely to be the same evidence that would be relied on to establish that he had no reasonable belief in the Complainant consenting or must have known that the principal did not have such a reasonable belief. On these facts it was LV’s unconsciousness made it obvious she could not be consenting, so the misdirection did not render the conviction unsafe.
Discussion
The most important outcome of Pop is that it has clarified the required intention for attempts. The approach set by Khan is correct, albeit in light of the new elements of the Sexual Offences Act 2003. A lack of a reasonable belief in consent is sufficient to prove attempted rape, as it is for the full offence. In short, there is no higher mental state required to be proved for the attempt than the full offence. While this decision arguably reaches a desirable policy outcome, it is not obvious that this decision was inevitable by reference to the wording of the Criminal Attempts Act 1981. Indeed, in his submissions, the Appellant relied on academic discussion which emphasised that the intention required, under a plain reading of the Act, is that there be an intention for each element of the offence. Yet, even if the wording of section 1(1) of the Criminal Attempts Act 1981 is unclear, the Appellant echoed Professor Mirfield, who stated with some force that “it is not for judges to overturn the clear words of a sovereign parliament even on the most convincing policy grounds.’ Moreover, ‘where there is uncertainty, criminal statutes should be interpreted in the way least favourable to the prosecution.’
Also important is that the Court clarified Jogee. The Court treats lack of consent as a “necessary fact” the secondary party must know before the principal’s act becomes criminal. But Jogee itself arose in the context of joint enterprise murder, where courts have generally inferred a secondary party’s knowledge of the principal’s state of mind from participation in the joint venture, without demanding the same granular proof of a specific fact like intent to kill/cause serious harm. It’s not obvious why rape should attract a more exacting standard than violent offences, where the stakes are just as high – this may not be a deliberate carve-out for sexual offences, but it raises a real question about how consistently “necessary facts” will be identified going forward. For practitioners, the immediate takeaway is narrower but useful: when settling jury directions for secondary liability in attempted sexual offences, the direction must now ask whether the accused knew the complainant was not consenting – an “absence of reasonable belief” formulation, however tempting to import from the principal’s mens rea, will no longer suffice.
Red Lion Chambers’ tenant Alex Benn appeared for the appellant in this case.
Analysis written by Justine Ryan and Seán Binder, Pupils at Red Lion Chambers
