Incitement—A Tale of Three Agents

Published date01 December 2001
Date01 December 2001
DOIhttp://doi.org/10.1177/002201830106500607
Subject MatterArticle
Incitement-A
Tale
of
Three
Agents
Jessica
Holroyd*
Incitement
is
one
of
the
inchoate
or
'unfinished'
offences,
nor
is
the
law
concerning
it as yet perfectly formed. There has
been
a
recent
diver-
gence
between
on
the
one
hand,
two
decisions of
the
Court
of Appeal
and
on
the
other, arecent case from
the
Divisional Court of
the
Queen's
Bench
Division. The issue concerns
the
status of
incitement
as a
'stand-
alone'
crime;
whether
it should
depend
only
upon
the
mens rea of
the
incitor, or
whether
the
mens rea of
the
person
incited is relevant. This
may
be especially
important
where
the
person
incited is
an
undercover
agent
of
the
police or customs service, engaged in
law
enforcement.
Incitement
is a crime at
common
law,
although
it
exists in a
number
of
statutory
forms
such
as soliciting to murder.I
It
means
to influence,
persuade
or encourage
another
person
(referred to
below
as
'the
in-
citee')
to
commit
an offence.
If
the
incitee actually goes on
to
commit
the
offence incited,
then
the
incitor will be
an
accomplice to
that
offence.
The parties
may
also be conspirators to
commit
the
offence in question.
Although
incitement
overlaps
with
both
accomplice liability
and
con-
spiracy,
the
cases on
incitement
pay little
attention
to these relationships
and
do
not
discuss
whether
these
three
methods
of commission of crime
should
run
parallel or
whether
there
are
good reasons for
the
law
to
diverge.
It
is
common
ground
that
incitement
requires proof
that
the
incitor
took
steps to
encourage
the
commission of
the
crime,
and
intended
it to
occur.
But
the
decided cases leave in
doubt
the
role of
the
incitee, in
particular his 'mens rea'. This expression is
put
in
quotes
because for
any
number
of reasons
the
incitee
may
not
be charged
with
any
offence.
One
obvious reason
may
be
that
the
incitee
took
no
steps
commit
the
crime
in question. Is
there
nevertheless
an
incitement?
The
answer
until
recently elicited anegative response.
The
decision
in
Rv
Curr
In Curr:
an
appeal was allowed against
the
defendant's
conviction for
soliciting a
woman
to obtain on his behalf from
the
Post Office,
money
on
account
of a family allowance book, knowing that it was not properly
receivable by her, contrary to s. 9(b) of
the
Family Allowances Act 1945.
(The expressions soliciting
and
inciting are used interchangeably in
the
judgment.)
It
is clear
that
the
words in italics comprise
the
mens rea
element
of
the
full offence in question. There was no
doubt
that
the
*Senior Lecturer in Law. University
of
Luton
IOffences Against
the
Person
Act 1861. s. 4.
2
(1968)
2 QB
944.
515

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