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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.
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 statute offences of encouraging or assisting crime. Serious Crime Act 2007 Part 2 The common law is now only relevant to offences committed before that date. ibid. Sch. 13
In R v Whitehouse,R v Whitehouse 1977 QB 868, 1977 2 WLR 925, 1977 3 All ER 737, 65 Cr App R 33, 1977 Crim LR 689, CA 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 Lord Scarman 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 QB 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,R v Pickford 1995 QB 203, 1994 3 WLR 1022, 1995 1 Cr App R 420, CA 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 by of committing the primary crime."R v Pickford 1995 1 Cr App R 420 at 424 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 p 295) 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".
In R v Fitzmaurice,R v Fitzmaurice 1983 QB 1083, 1983 2 WLR 227, 1983 1 All ER 189, 76 Cr App R 17, 1982 Crim LR 677, CA 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,Race Relations Board v Applin 1973 1 QB 815, 1973 2 WLR 895, 1973 2 All ER 1190, CA, affirmed 1975 AC 259, HL 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. 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 WhitehouseR 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 TyrellR v Tyrrell 1894 1 QB 710, 1891–4 All ER Rep 1215, sub nom R v Tyrell, 17 Cox CC, 70 LT 41, CCR 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.
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.
Inciting a child under 14 to gross indecency
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.
In areas of the West Bank administered by the Israeli Defense Forces, the crime of incitement, is adjudicated by military legislation and carries a prison sentence of up to 10 years, has been described as follows:
The “incitement” offense is defined by military law in very broad terms, and includes any incident in which a person attempts to influence public opinion in a manner that could harm public safety or public order. . . . The incitement offense is used by the military courts to adjudicate Palestinians in offenses that concern, inter alia, hanging posters or writing slogans against the occupation.Limor et al, p.91Spencer C. Tucker, Priscilla Roberts, The Encyclopedia of the Arab-Israeli Conflict: A Political, Social, and Military History, ABC-CLIO 2008 p.1512
Individuals who abet someone to commit a crime, even though that person initially had no intention of doing so, are called accessories.They are prosecuted for the crime they encouraged.
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.The Crimes Act 1961, section 311(2)
Incitement to riot is illegal under U.S. federal law.
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