Incitement

Criminal law in English law
Part of the common law series
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Summary  · Indictable
Hybrid offence  · Regulatory offences
Lesser included offence
Elements of crimes
Actus reus  · Causation
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Omission  · Concurrence
Ignorantia juris non excusat
Inchoate offences
Incitement  · Conspiracy
Accessory  · Attempt
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Public Order Act 1986
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Theft Act 1978  · Forgery
Fraud Act 2006  · Computer crime
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See also Criminal Procedure
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Portals: Law  · Criminal justice

In English criminal law, incitement is an anticipatory common law offence and is the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime.

Relationship with other offences

The rationale of incitement matches the general justification underpinning the other inchoate offences of conspiracy and attempt by allowing the police to intervene before a criminal act is completed and the harm or injury is actually caused. There is considerable overlap, particularly where two or more individuals are involved in criminal activity. The plan to commit crime may exist only in the mind of one person until others are incited to join in, at which point the social danger becomes more real. The offence overlaps the offences of counselling or procuring as an accessory. Indeed, in the early case of R v Higgins (1801) 102 E.R. 269 incitement was defined as being committed when one person counsels, procures or commands another to commit a crime, whether that person commits the crime. The words, "counsel" and "procure" were later adopted in s8 Accessories and Abettors Act 1861 as two of the four forms of accessory. In AG’s Reference (No. 1 of 1975) (1975) QB 773, Widgery CJ. said:

To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take.

But secondary liability is derivative and dependent on the commission of the substantive offence by the principal offender. This is too late to avert the harm. Thus, the offence of incitement has been preserved to allow the police to intervene at an earlier time and so avert the threatened harm.

The mens rea

The inciter must intend the others to engage in the behaviour constituting the offence, including any consequences which may result, and must know or believe (or possibly suspect) that those others will have the relevant mens rea. In R v. Curr (1967) 1 AER 478 the defendant incited women to commit offences under the Family Allowances Act 1945 but, because the prosecution did not prove that the women had the mens rea to constitute the offence, the conviction was quashed. Fenton Atkinson J. explained that:

“In our view, the argument for the prosecution here gives no effect to the word “knowing” in [the relevant statutory provision], and in our view could only be guilty.. if the woman solicited that, that is, the woman agent sent to collect the allowance, knew that the action she was asked to carry out amounted to an offence.”

This is not a satisfactory decision. In R v Whitehouse (1995) 1 Cr. App. R. 420 a father was charged with inciting his fifteen year-old daughter to have sexual intercourse with him. At this age, she would have been excused from liability for committing the offence of incest with her father. The conviction was quashed on appeal and Scarman LJ. explained that:

“...we have therefore come to the conclusion, with regret, that the indictment does not disclose an offence known to the law because it cannot be a crime on the part of this girl aged 15 to have sexual intercourse with her father, though it is of course a crime and a very serious crime, on the part of the father. There is here incitement to a course of conduct, but that course of conduct cannot be treated as a crime by the girl.... It is regrettable indeed that a man who importunes his daughter under the age of 16 to have sexual intercourse with him but does not go beyond incitement cannot be guilty of a crime.”

In DPP v Andrew Armstrong (2000) Crim. LR 379 the defendant was charged with inciting X to distribute indecent photographs of children contrary to common law. A police informer had been contacted by A asking to be supplied with pornography, but the informer told A that he did not deal in such material. Instead, the informer gave A the mobile telephone number of X, a police officer. Subsequently A telephoned X and asked for pornography. The Magistrate found no case to answer because, before a person could be convicted of inciting, it is necessary for “...the person to whom the incitement is made [to] have a parity of mens rea to the inciter”. The Divisional Court considered that approach to be wrong because in their view, it was not necessary for the prosecutor to show that X intended to supply child pornography to Armstrong. Tuckey LJ. explained:

“the offence of incitement was committed when [X] was asked to commit the offence of supplying child pornography with the intention on the part of the respondent that in doing so he would be committing a criminal offence.”

Commenting on Curr, Tuckey LJ. said of Fenton Atkinson's statement that:

“...it seems to me all the court is saying in that case is that what the appellant was doing was something short of asking the woman concerned to commit a criminal offence. He was not inciting her to commit an offence because the offence required her knowledge that she was committing an offence. There is nothing in the judgment to suggest that the court was making any general pronouncement about whether for the offence of incitement it is necessary to prove that not only the inciter but also the person incited had the mens rea to commit the full offence.”

The Court of Appeal in R v Claydon (2005) EWCA Crim 2817 has repeated the criticism. Claydon had sexually abused the thirteen year-old son of his partner in the 1980s, and was tried twenty years later on an indictment containing counts of sexual offences, including two counts of incitement to commit buggery. At that time, there was an irrebuttable presumption that a boy under the age of fourteen years was incapable of sexual intercourse (applying R v Waite (1892) 2 QBD 600-601 and R v Williams (1893) 1 QBD 320-321). It was argued by the Crown that, although the boy could not in law have committed the act incited, it was nevertheless quite possible for the defendant to incite him. Having considered R v Whitehouse (1995) 1 Cr. App. R. 420 and R v Pickford (1995) Cr. App. R. 420 the Court of Appeal felt obliged to reject that argument. As Laws J. said in Pickford (at p 424), "it is a necessary element of the element of incitement that the person incited must be capable [by which he meant capable as a matter of law] of committing the primary crime." The Court agreed because the focus of the offence of inciting is solely on the acts and intention of the inciter while the intention of the person incited are not relevant when considering whether the offence of incitement has been committed. It further endorsed the views of Smith and Hogan (10th Edition at p295) who criticised the decision in Curr on the basis that “...the real question should not have been not whether the women actually had the knowledge, but whether D believed they had.”. Furthermore, Smith (1994) said that “the court has confused the mens rea of incitement with the mens rea of the offence incited”.

The actus reus

The inciter is one who reaches out and seeks to influence the mind of another to commit a crime, although where, for example, a letter conveying the incitement is intercepted, there is only an attempt to incite (see R v Banks (1873) 12 Cox CC 393). So merely making suggestions is not enough. There must be actual communication so that the other person has the opportunity to agree, but the actus reus is complete whether the incitement actually persuades another to commit an offence. In R v Goldman (2001) Crim. LR 822 the defendant wrote to a Dutch firm (ESV) which had advertised pornography for sale, requesting pornographic material. He was convicted of an attempt to incite another (ESV) to distribute indecent photographs because the offer to buy amounted to an inducement to ESV to commit a crime.

In R v Fitzmaurice (1983) 1 AER 189 it was held that the necessary element of persuasion was satisfied by a "suggestion, proposal or request [that] was accompanied by an implied promise of reward". In Race Relations Board v Applin (1973) 1 QB 815 Lord Denning stated that a person may incite another to do an act by threatening or by pressure, as well as by persuasion. The incitement can take any form (words or deeds). It may be addressed to a particular person or group or to the public at large. In R v Marlow (1997) Crim. LR 897 the defendant wrote and published a book on the cultivation of cannabis, which he advertised, selling about 500 copies. It was alleged that the book was not a bona fide textbook, but was an incitement to those who bought it to cultivate cannabis. The defence claimed the book as a genuine contribution to the debate on the legalisation of cannabis and said that it only contained general advice which was freely available elsewhere. The judge directed the jury that they had to be sure that the book could "encourage or persuade or is capable of encouraging or persuading other people to produce the drug". The Court of Appeal held that there was no misdirection and the conviction was not unsafe.

Thus, the incitement may be implied as well as express and may be directed to persons generally. So manufacturing and distributing devices that will facilitate the breaking of the law will be taken to encourage those who buy it to break the law (see Invicta Plastics Ltd v Clare (1976) Crim. LR 131). The test is whether there is a lawful use for the device. For example, a recording or transcribing device may be used lawfully without breaching copyright, but a device to detect radar signals so as to avoid speed camera/red light infringement systems would have no other purpose than assisting drivers to evade detection. But note that the act incited must be a crime by the person incited so any alleged breach of copyright would have to be criminal, and the defendant would have to know all the material facts that would make the incited person's behaviour criminal, but not that the behaviour was a crime (see the public policy ignorantia juris non excusat which prevents ignorance of the law from being an excuse). In R v Whitehouse (1977) 65 Cr. App. R. 33 an uncle did not incite his 15-year-old niece to incest because, if the incitement had succeeded and she had submitted to intercourse, she would not have committed an offence. This applied R v Tyrell (1894) 1 QB 710 which stated that where a statutory offence is designed to protect a particular class of individuals against themselves, they cannot, as the victims, commit such offences against themselves. In Tyrell, the girl was not guilty of inciting the man to have under-age sex with her, since the girl could not herself be guilty of the full offence.

Impossibility

If X incites Y to kill Z but, unknown to both of them at the time, Z had already died, it would be impossible to kill Z and so no crime of incitement would have been committed. Apart from simple situations such as this, the current law is difficult. R v Fitzmaurice allows the defence of impossibility, but its scope is quite limited. X planned to collect a reward from a security firm by informing the police of the existence of a conspiracy to rob a security van. He recruited the defendant who thought he was engaging men for this robbery. Subsequently, the conspirators were arrested by the police. The Court of Appeal held that the test was to decide what sort of conduct was incited, attempted or the subject of a conspiracy. If the evidence shows incitement in general terms, e.g. to rob a security van, this is always possible, whereas if the subsequent agreement relates to a specific but fictitious crime, there might be an acquittal. In DPP v Armstrong the fact that the undercover police officer did not intend to supply the defendant with child pornography (making it impossible to commit the offence on this occasion) was not relevant to liability.

Statutory incitement

Several statutes have adopted incitement, e.g. incitement to racial hatred under the Public Order Act 1986 and incitement to gross indecency under the Indecency with Children Act 1960, and more recently, the Racial and Religious Hatred Act 2006.

References

• Ormerod, David. (2005). Smith and Hogan Criminal Law. London: LexisNexis. ISBN 0-406-97730-5
• Smith, J. C. (1994) "Commentary to R v Shaw". Criminal Law Review 365

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