What is incitement?

Incitement is an inchoate offence, which means that the offence occurs as a result of actions or agreements entered into in preparation for a substantive offence. The creation of inchoate offences allows the police to intervene before a substantive crime is carried out and harm has been caused. Other inchoate offences include ‘conspiracy’ and ‘attempt’. On 1 October 2008, the offence of incitement was abolished; however, before then it was a common-law offence committed by ‘inciting’ (threatening, persuading, encouraging, pressurising) another person to commit a crime.

Offences committed before 1 October 2008

Under Section 59 of the Serious Crime Act 2007, the common-law offence of incitement was abolished as of 1 October 2008. Therefore, people can only be convicted of incitement in relation to offences committed before that date.

A person can be found guilty of incitement to commit an offence if:

• he or she incites another person to commit an offence or offences;
• he or she believes that the other person, if he acts as incited, shall do so with the fault required for the conviction of that offence or offences; and
• the incitement occurred before 1 October 2008.

Even if the other person does not actually commit an offence, or ends up committing an alternative offence to the one he has been incited to commit, the person being charged with incitement can still be convicted. The incitement can be in words or in writing; however, if it is in writing but is intercepted before it reaches the intended recipient then there has only been an ‘attempt’ to incite.

The inciter must believe that the other person will carry out the acts constituting a criminal offence with the relevant ‘mens rea’ or intentions.

Although incitement is a common-law offence on the whole, under some specific circumstances it is covered by statute, such as under the Misuse of Drugs Act 1971 and incitement to racial hatred under Public Order Act 1986.

The venue of the trial of a person who has been charged with incitement will depend on the type of offence that he or she incited another person to commit. Therefore, incitement to commit an indictable offence can only be tried on indictment, and similarly, incitement to commit a summary offence can only be tried summarily.

The Serious Crime Act 2007

This act replaces the common-law offence of incitement with three new statutory offences, with effect from 1 October 2008:

• Intentionally encouraging or assisting an offence: under section 44 of the Act, someone commits this offence if they engage in an activity that encourages or assists the commission of an offence; and they intend to encourage or assist in its commission.

• Encouraging or assisting an offence believing it will be committed: under section 45 of the Act, someone will commit this offence if they engage in an activity that encourages or assists the commission of an offence; and they believe that the offence will be committed and their act will encourage its commission.
• Encouraging or assisting offences believing one or more will be committed: the components for this offence under section 46 are the same as under section 45, except that the person encouraging or assisting the commission of the offences has no belief as to which specific offence will be committed (yet believes that one will be). 

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