Incitement and Impossibility—Do We Need a Statutory Definition of Incitement?

AuthorL. M. Clements
Date01 February 1984
Publication Date01 February 1984
DOI10.1177/002201838404800111
SubjectArticle
INCITEMENT
AND
IMPOSSIBILITY-DO
WE
NEED
A
STATUTORY
DEFINITION
OF
INCITEMENT?
L. M. Clements*
Apart
from a few specific instances of
statutory
incitement,' the
penalisation of incitement to conduct which by itself might not be an
offence," provisions as to
the
mode
of trial"
and
the
abolition of
attempt
to incite"
and
inciting to conspire," the incohate offence of
incitement remains acommon law offence uncodified by statute.
Although
the
Law Commission has
stated
its intention of dealing
with incitement in
the
context of a future
report
on criminal
complicity," we still have no immediate prospect of a statutory
definition of incitement,
nor
any provision to deal explicitly with the
problem
of impossibility in incitement. In this article I shall be
looking at the questions
whether
there is
the
need
for a statutory
definition of incitement,
together
with associated provisions dealing
with, inter alia, maximum
punishment;
and
whether
the present law
on impossibility is satisfactory, bearing in mind
the
recent
Court
of
Appeal
decision in R. v. Fitrmaurice.'
(A)
THE
PRESENT
LAW
(a) Maximum penalty
At
present,
there is no fixed maximum penalty,
apart
from life
imprisonment, for the inchoate offence of incitement to commit a
crime.
It
is punishable with imprisonment
and
fine at the
court's
discretion, although
there
are
some
statutory
exceptions,"
The
Law
Commission in its
report
on Inchoate Offences" considered that
since, where the offence was commited, acounsellor or
procurer
is
liable only to the
same
penalty as the principal: "
...
it would,
therefore, in
our
view be unnecessary to impose on a person inciting
an offence that was not
committed
a
punishment
greater
than could
be imposed upon aperson who
committed
the substantive
*
B.A
..
LL.M.
Lecturer
in Law.
University
of Hull
102

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