Incitement

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.

Incitement was an offence under the common law of England and Wales. It was an inchoate offence. 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 when Part 2 of the Serious Crime Act 2007 came into force, replacing it with three new statutory offences of encouraging or assisting crime. The common law is now only relevant to offences committed before that date.

The rationale of incitement matches the general justification underpinning the other inchoate offences of conspiracy and attempt by allowing the police to intervene before a criminal act is completed and the harm or injury is actually caused. There is considerable overlap, particularly where two or more individuals are involved in criminal activity. The plan to commit crime may exist only in the mind of one person until others are incited to join in, at which point the social danger becomes more real. The offence overlaps the offences of counselling or procuring as an accessory. Indeed, in the early case of R v Higgins incitement was defined as being committed when one person counsels, procures or commands another to commit a crime, whether that person commits the crime. The words, "counsel" and "procure" were later adopted in section 8 of the Accessories and Abettors Act 1861 as two of the four forms of accessory. In AG’s Reference (No. 1 of 1975),Widgery CJ said:

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.

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