Incitement
Encyclopedia
In English
criminal law
, incitement was an anticipatory common law
offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime.
It was abolished on 1 October 2008 when Part 2 of the Serious Crime Act 2007
came into force, replacing it with three new statutory
offences of encouraging or assisting crime. The common law is now only relevant to offences committed before that date.
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 section 8 of the Accessories and Abettors Act 1861
as two of the four forms of accessory. In AG’s Reference (No. 1 of 1975), Widgery CJ. said:
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:
This is not a satisfactory decision. In R v Whitehouse, 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:
He continued:
The Court of Appeal in R v Claydon (2005) EWCA Crim 2817 has repeated this 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 and R v Pickford [1995] 1 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".
enough. There must be actual communication so that the other person has the opportunity to agree, but the actus reus is complete whether or not 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.
, 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
1999 EWHC 270 (QB)
it was held that impossibility of the commission of the offence incited was irrelevant to guilt.
.
Soliciting to murder
The offence of soliciting to murder
is created by section 4 of the Offences against the Person Act 1861
.
Inciting to commit perjury
This offence is created by section 7(2) of the Perjury Act 1911
.
Inciting another to commit an offence against the Official Secrets Acts 1911 and 1920
This offence is created by section 7 of the Official Secrets Act 1920
.
The Indecency with Children Act 1960
provided that it was an offence, amongst other things, to incite a child under the age of fourteen to an act of gross indecency with the inciter or another.
Inciting a girl under 16 to commit incest
This offence was created by section 54 of the Criminal Law Act 1977
.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, incitement was an anticipatory common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime.
It was abolished on 1 October 2008 when Part 2 of the Serious Crime Act 2007
Serious Crime Act 2007
The Serious Crime Act 2007 is an Act of the Parliament of the United Kingdom that makes several radical changes to English criminal law. In particular, it creates a new scheme of serious crime prevention orders to frustrate crime in England and Wales and in Northern Ireland, replaces the common law...
came into force, replacing it with three new statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
offences of encouraging or assisting crime. The common law is now only relevant to offences committed before that date.
Relationship with other offences
The rationale of incitement matches the general justification underpinning the other inchoate offencesInchoate offense
An inchoate offense, inchoate offence, or inchoate crime is the crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is conspiracy...
of conspiracy and attempt
Attempt
Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
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
Accessory (legal term)
An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal...
. 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 section 8 of the Accessories and Abettors Act 1861
Accessories and Abettors Act 1861
The Accessories and Abettors Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland . It consolidated provisions in English criminal law related to accomplices from a number of earlier statutes into a single Act...
as two of the four forms of accessory. In AG’s Reference (No. 1 of 1975), Widgery CJ. said:
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 1945Family Allowances Act 1945
The Family Allowances Act 1945 was an Act of Parliament in the United Kingdom. It came into operation from August 6, 1946, and was the first law to provide child benefit in the United Kingdom....
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:
This is not a satisfactory decision. In R v Whitehouse, 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:
He continued:
The Court of Appeal in R v Claydon (2005) EWCA Crim 2817 has repeated this 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
Buggery
The British English term buggery is very close in meaning to the term sodomy, and is often used interchangeably in law and popular speech. It may be, also, a specific common law offence, encompassing both sodomy and bestiality.-In law:...
. 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 and R v Pickford [1995] 1 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 notenough. There must be actual communication so that the other person has the opportunity to agree, but the actus reus is complete whether or not 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
Cannabis
Cannabis is a genus of flowering plants that includes three putative species, Cannabis sativa, Cannabis indica, and Cannabis ruderalis. These three taxa are indigenous to Central Asia, and South Asia. Cannabis has long been used for fibre , for seed and seed oils, for medicinal purposes, and as a...
, 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
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
directed the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
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
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
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
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, 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
Evasion (law)
In law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and...
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
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
ignorantia juris non excusat
Ignorantia juris non excusat
Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content...
which prevents ignorance of the law from being an excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
). In R v Whitehouse (1977) 65 Cr. App. R. 33 an uncle did not incite his 15-year-old niece to incest
Incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
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 impossibility defenceImpossibility defense
An Impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law. In the United States,...
, 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
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
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
DPP v Armstrong
DPP v Armstrong 1999 EWHC QB 270, 2000 Crim LR 379 is a decision of the English Queen's Bench Division of the High Court of Justicedealing with incitement when the offence incited is impossible, in the circumstances, of commission...
1999 EWHC 270 (QB)
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
it was held that impossibility of the commission of the offence incited was irrelevant to guilt.
Statutory incitement
There are a number of statutory offences of incitement, e.g. incitement to racial hatred under the Public Order Act 1986Public Order Act 1986
The Public Order Act 1986 is an Act of the Parliament of the United Kingdom. It creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936...
.
Soliciting to murder
The offence of soliciting to murder
Soliciting to murder
Soliciting to murder is a statutory offence of incitement in England and Wales and Northern Ireland and the Republic of Ireland.-England and Wales:This offence is created by section 4 of the Offences against the Person Act 1861 which reads:...
is created by section 4 of the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
Inciting to commit perjury
This offence is created by section 7(2) of the Perjury Act 1911
Perjury Act 1911
The Perjury Act 1911 is an Act of the Parliament of the United Kingdom. It creates the offence of perjury and a number of similar offences....
.
Inciting another to commit an offence against the Official Secrets Acts 1911 and 1920
This offence is created by section 7 of the Official Secrets Act 1920
Official Secrets Act 1920
The Official Secrets Act 1920 is an Act of the Parliament of the United Kingdom.-Section 1 - Unauthorised use of uniforms; falsification of reports, forgery, personation, and false documents:Sections 1 and provide:...
.
Abolished offences
Inciting a child under 14 to gross indecencyThe Indecency with Children Act 1960
Indecency with Children Act 1960
The Indecency with Children Act 1960 was an Act of the Parliament of the United Kingdom that expanded English criminal law in relation to sexual acts with minors. The Act made it a crime to incite or commit an "act of gross indecency" with somebody under the age of fourteen...
provided that it was an offence, amongst other things, to incite a child under the age of fourteen to an act of gross indecency with the inciter or another.
Inciting a girl under 16 to commit incest
This offence was created by section 54 of the Criminal Law Act 1977
Criminal Law Act 1977
The Criminal Law Act 1977 is an Act of the Parliament of the United Kingdom. Most of it only applies to England and Wales. It is mainly significant because it defines the offence of conspiracy in English law...
.
See also
- Hate speechHate speechHate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
(Incitement to hatred) - Fighting wordsFighting wordsFighting words are written or spoken words, generally expressed to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction...
- Riot ActRiot ActThe Riot Act was an Act of the Parliament of Great Britain that authorised local authorities to declare any group of twelve or more people to be unlawfully assembled, and thus have to disperse or face punitive action...