Incitement

In criminal law, incitement is the act of encouraging another person to commit a crime. It is classified as an inchoate offense. An inchoate offense is a crime where the harm is intended but may not actually occur. This legal category allows authorities to intervene before a criminal act is fully completed. By addressing the intention to cause harm, the law seeks to prevent injury or damage before it happens. This concept is closely related to other inchoate offenses, such as conspiracy and attempt.

To understand how incitement works, one must look at its two main parts: the actus reus and the mens rea. The actus reus is the physical action of the crime. In incitement, this requires actual communication. A person must reach out to influence another person's mind. This can be done through words, deeds, or written letters. Simply making a suggestion is not enough; the person must have the opportunity to agree. The actus reus is complete once the message is sent, even if the other person refuses to act.

The second part is the mens rea, which refers to the mental state or intention of the person. An inciter must intend for the other person to engage in the criminal behavior. They must also know, believe, or suspect that the other person will have the necessary intention to commit the crime. This was a complex issue in the case of R v Curr. In that case, a conviction was quashed because the prosecution could not prove the women involved had the required mens rea. The law focuses heavily on what the inciter believes and intends.

There are specific legal requirements regarding who can be incited. A person can only be guilty of incitement if the person they are targeting is legally capable of committing the primary crime. This principle was clarified in the case of R v Pickford. In that case, the court held that the person being incited must be capable of the act as a matter of law. For example, in R v Whitehouse, a man was not guilty of inciting his niece to incest. This was because, under the law at that time, the niece could not be held liable for that specific offense.

Incitement can take many different forms depending on the method used. It can be express, such as a direct command, or it can be implied. For instance, a request might include an implied promise of a reward. In the case of R v Fitzmaurice, a suggestion accompanied by a promise of reward was enough to satisfy the requirement of persuasion. Incitement can also be directed at a specific individual or to the public at large. In R v Marlow, a book about growing cannabis was considered an incitement because it was capable of encouraging people to produce the drug.

The history of incitement laws shows how legal systems evolve. In England and Wales, incitement was originally an offense under common law. Common law refers to laws based on historical court decisions rather than written statutes. However, this changed on October 1, 2008. The Serious Crime Act 2007 came into force and abolished the common law offense of incitement. It replaced it with three new statutory offenses. These new laws focus on the acts of encouraging or assisting a crime.

Beyond local laws, incitement is addressed in international and specific statutory contexts. Article 20 of the International Covenant on Civil and Political Rights is a key international rule. It requires that laws prohibit any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. There are also many specific statutes, such as the Perjury Act 1911, which makes it a crime to incite someone to lie in court. In Israel, publishing material to incite terrorism can lead to a sanction of five years in prison. These various laws work together to manage the boundaries of speech and safety.