To instigate or encourage another person to commit a crime or offence - itself a crime at common law. If the offence is actually committed, the inciter is as guilty as the perpetrator, and where the crime or offence is either impossible to commit or the inciter does not persuade the other to commit the crime, the inciter may be guilty of attempted incitement. While there can be incitement to commit any crime, certain specific offences of incitement exist: in Britain, for example, incitement to racial hatred and incitement to dissaffection (ie to undermine a member of the military's loyalty to the Crown).
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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. 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 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). 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. 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. 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). 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. 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. 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. 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”. 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. 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. 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. 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.
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.
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.
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