Incitement
This article may not provide balanced coverage on a geographical region. (December 2010) |
Criminal law |
---|
Elements |
Scope of criminal liability |
Severity of offense |
|
Inchoate offenses |
Offense against the person |
Sexual offenses |
Crimes against property |
Crimes against justice |
Crimes against the public |
Crimes against animals |
Crimes against the state |
Defenses to liability |
Other common-law areas |
Portals |
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.
International law
The Article 20 of the International Covenant on Civil and Political Rights requires that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.[1] That few journalists have been prosecuted for incitement to genocide and war crimes despite their recruitment by governments as propagandists is explained by the relatively privileged social status of journalists and privileged institutional position of news organizations in liberal societies, which assign a high value to a free press.[2]
England and Wales
Incitement was an offence under the common law of England and Wales. It was an inchoate offence.[3] It consisted of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime.
It was abolished in England and Wales on 1 October 2008
Relationship to other offences
The rationale of incitement matches the general justification underpinning the other
To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take. But secondary liability is derivative and dependent on the commission of the substantive offence by the principal offender. This is too late to avert the harm. Thus, the offence of incitement has been preserved to allow the police to intervene at an earlier time and so avert the threatened harm.
The mens rea
The inciter must intend the others to engage in the behaviour constituting the offence, including any consequences which may result, and must know or believe (or possibly suspect) that those others will have the relevant mens rea. In R v Curr,[9] the defendant allegedly 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. Fenton Atkinson J explained that:
In our view, the argument for the prosecution here gives no effect to the word "knowing" in [the relevant statutory provision], and in our view could only be guilty. if the woman solicited that, that is, the woman agent sent to collect the allowance, knew that the action she was asked to carry out amounted to an offence.
In R v Whitehouse,
... 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. There is here incitement to a course of conduct, but that course of conduct cannot be treated as a crime by the girl.
He continued:
It is regrettable indeed that a man who importunes his daughter under the age of 16 to have sexual intercourse with him but does not go beyond incitement cannot be guilty of a crime.
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
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). So merely making suggestions is not enough. There must be actual communication so that the other person has the opportunity to agree, but the actus reus is complete whether or not the incitement actually persuades another to commit an offence. In R v Goldman [2001] Crim LR 822 the defendant wrote to a Dutch firm (ESV) which had advertised pornography for sale, requesting pornographic material. 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.
In R v Fitzmaurice,
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
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. Apart from simple situations such as this, the current law is difficult. R v Fitzmaurice allows the impossibility defence, but its scope is quite limited. X planned to collect a reward from a security firm by informing the police of the existence of a conspiracy to rob a security van. He recruited the defendant who thought he was engaging men for this robbery. Subsequently, the conspirators were arrested by the police. The Court of Appeal held that the test was to decide what sort of conduct was incited, attempted or the subject of a conspiracy. If the evidence shows incitement in general terms, e.g. to rob a security van, this is always possible, whereas if the subsequent agreement relates to a specific but fictitious crime, there might be an acquittal. In DPP v Armstrong [2000] Crim LR 379, 1999 EWHC 270 (QB) it was held that impossibility of the commission of the offence incited was irrelevant to guilt.
Soliciting to murder
The offense of
Inciting to commit perjury
This offense is created by section 7(2) of the Perjury Act 1911.
Inciting another to commit an offense against the Official Secrets Acts 1911 and 1920
This offense 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 offense, 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 offense was created by section 54 of the Criminal Law Act 1977.
Statutory incitement
There are, in England and Wales, a number of statutory offences of incitement, e.g. incitement to racial hatred under the Public Order Act 1986.
Israel
Under Israeli law, the classification of an offense as incitement is applied to incidents in which a person publishes something with the aim to incite violence or terrorism, and it is conditional on the concrete possibility that the specific publication might induce the commission of an act of violence or terrorism. The sanction which is envisaged is 5 years imprisonment.[17]
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.[18][19]
New Zealand
In New Zealand, every one who incites any person to commit an offence is a party to and guilty of the offence and liable for the same penalty as a person who commits the offence.[20]
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.[21]
United States
The
Incitement to riot is illegal under U.S. federal law.[23]
See also
- Fighting words
- Incitement to ethnic or racial hatred
- Incitement to genocide
- Incitement to terrorism
- Solicitation
- True threat
References
- ^ International Covenant on Civil and Political Rights, Article 20, 2
- ^ Hickman, John."Why have few journalists been prosecuted for incitement to war crimes?" European Journal of Communication Archived 14 January 2021 at the Wayback Machine 28 July 2018.
- ^ Jefferson, Michael. Criminal Law. Eighth Edition. Pearson Education. 2007. Page 388
- ^ "The Serious Crime Act 2007 (Commencement No. 3) Order 2008". www.opsi.gov.uk. Archived from the original on 2 October 2008. Retrieved 29 September 2008.
- ^ Serious Crime Act 2007 Archived 14 January 2021 at the Wayback Machine Part 2
- ^ ibid. Sch. 13
- ^ R v Higgins (1801) 2 East 5, (1801) 102 ER 269 Archived 14 January 2021 at the Wayback Machine
- CA
- ^ R v Curr [1968] 2 QB 944, [1967] 2 WLR 595, [1967] 1 All ER 487, 51 Cr App R 113, CA
- Crim LR689, CA
- ^ R v Pickford [1995] QB 203, [1994] 3 WLR 1022, [1995] 1 Cr App R 420, CA
- ^ R v Pickford [1995] 1 Cr App R 420 at 424
- ^ 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
- ^ Race Relations Board v Applin [1973] 1 QB 815, [1973] 2 WLR 895, [1973] 2 All ER 1190, CA, affirmed [1975] AC 259, HL
- ^ R v Whitehouse (1977) 65 Cr App R 33
- LT 41, CCR
- The Association for Civil Rights in IsraelOctober 2014 pp.91–92.
- ^ Limor et al, p.91
- ISBN 978-1-851-09842-2p.1512
- ^ The Crimes Act 1961, section 66(1)(d) Archived 14 January 2021 at the Wayback Machine
- ^ The Crimes Act 1961, section 311(2) Archived 14 January 2021 at the Wayback Machine
- ^ Friedersdorf, Conor. "Judith Butler Overestimates the Power of Hateful Speech." Archived 14 January 2021 at the Wayback Machine The Atlantic. 12 December 2017. 12 December 2017.
- ^ "18 U.S.C. § 2101 – U.S. Code Title 18. Crimes and Criminal Procedure § 2101 – FindLaw". findlaw.com. Archived from the original on 14 January 2021. Retrieved 26 February 2017.
Further reading
- Baker, Dennis (2012). Glanville Williams: Textbook of Criminal Law. London: Sweet & Maxwell. ISBN 978-0414046139.
- Smith, J. C. (1994). "Commentary to R v Shaw". Criminal Law Review. Sweet & Maxwell: 365. ISSN 0011-135X.
- Wilson, Richard A. (2017). Incitement on Trial: Prosecuting International Speech Crimes. Cambridge: Cambridge University Press. ISBN 9781316212875.