R v Khan [1990] 1 WLR 813

Facts

  • The defendants were charged with attempted rape of a 16-year-old girl.
  • They allegedly attempted sexual intercourse with the victim.
  • The prosecution contended the defendants intended to have intercourse with the victim, knowing she did not consent.
  • The principal question was whether the defendants needed to intend intercourse while knowing of non-consent or if recklessness as to consent was sufficient.

Issues

  1. Whether, for the offence of attempted rape, intent must extend both to the act of intercourse and to the circumstance of the victim's non-consent.
  2. Whether recklessness as to the victim's consent is sufficient to establish mens rea for the circumstance element of the offence.

Decision

  • The Court of Appeal held that for attempted rape, the prosecution must prove intent regarding the act of intercourse.
  • Recklessness concerning the victim's non-consent satisfies the mens rea requirement for the circumstance of non-consent.
  • The decision clarified that intent applies to the actus reus (the guilty act) while recklessness can suffice for situational elements such as non-consent.
  • This approach kept the actus reus and mens rea requirements distinct for different aspects of the offence.

Legal Principles

  • Intent in criminal law requires proof that the defendant aimed to bring about a specific result.
  • Recklessness is present when a person is aware of and disregards an unreasonable risk.
  • For certain offences, intent must be shown for the act, but recklessness may satisfy the element relating to circumstances or context (e.g., consent).
  • R v Khan distinguished between the mental element needed for the act itself and that for attendant circumstances, influencing subsequent case law.
  • Later cases, including R v G and another [2003] UKHL 50, further developed what counts as recklessness, requiring actual awareness of risk.

Conclusion

R v Khan clarified that, in the context of attempted rape, the defendant must intend the act of intercourse, but recklessness as to the victim's lack of consent suffices for that circumstance. The case set a precedent separating the mental elements for conduct and circumstances in specific intent offences, thereby shaping the application of mens rea in English criminal law.

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