Incitement


In criminal law, incitement is the encouragement of another person to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but may or may not have actually occurred.

International law

Incitement was an offence under the common law of England and Wales. It was an inchoate offence. It consisted of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime.
It was abolished in England and Wales 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.

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 incitement was defined as being committed when one person counsels, procures or commands another to commit a crime, whether or not 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 , 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 that those others will have the relevant mens rea. In R v Curr, the defendant allegedly 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 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 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. 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, the Court of Appeal felt obliged to reject that argument. As Laws J said in Pickford, "it is a necessary element of the element of incitement that the person incited must be capable 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 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 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. 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 or not the incitement actually persuades another to commit an offence. In R v Goldman Crim LR 822 the defendant wrote to a Dutch firm which had advertised pornography for sale, requesting pornographic material. He was convicted of an attempt to incite another to distribute indecent photographs because the offer to buy amounted to an inducement to ESV to commit a crime.
In R v Fitzmaurice, it was held that the necessary element of persuasion was satisfied by a "suggestion, proposal or request was accompanied by an implied promise of reward". In Race Relations Board v Applin, 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. It may be addressed to a particular person or group or to the public at large. In R v Marlow 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. 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. In R v Whitehouse 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 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 defence, 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 Crim LR 379, 1999 EWHC 270 it was held that impossibility of the commission of the offence incited was irrelevant to guilt.

Statutory incitement

There are, in England and Wales, a number of statutory offences of incitement, e.g. incitement to racial hatred under the Public Order Act 1986.
Soliciting to murder
The offense of soliciting to murder is created by section 4 of the Offences against the Person Act 1861.
Inciting to commit perjury
This offense is created by of the Perjury Act 1911.
Inciting another to commit an offense against the Official Secrets Acts 1911 and 1920
This offense is created by section 7 of the Official Secrets Act 1920.
Inciting a child under 14 to gross indecency
The Indecency with Children Act 1960 provided that it was an offense, 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 offense was created by section 54 of the Criminal Law Act 1977.

New Zealand

In New Zealand, every one who incites any person to commit an offence is a party to and guilty of the offence and liable for the same penalty as a person who commits the offence.
When a person incites another to commit an offence that is not in fact committed the person is liable for the same penalty as a person who attempts to commit an offence that is not in fact committed. The penalty for inciting the commission of an offence that is not in fact committed is 10 years imprisonment if the maximum penalty for the offence is imprisonment for life and in other cases up to half the maximum penalty of the primary offence.

United States

The First Amendment to the United States Constitution guarantees free speech, and the degree to which incitement is protected speech is determined by the imminent lawless action test introduced by the 1969 Supreme Court decision in the case Brandenburg v. Ohio. The court ruled that incitement of events in the indefinite future was protected, but encouragement of "imminent" illegal acts was not protected. This "view reflects longstanding law and is shared by the Federalist Society, the ACLU, the Foundation for Individual Rights in Education, and the vast majority of Americans, including most staunch free-speech advocates."
Incitement to riot is illegal under U.S. federal law.