Incitement

Question 1

Define incitement

Answer 1

Incitement occurs where the accused persuaded another person to commit an offence or where a person is induced to commit an offence as a result of duress exerted by the accused

Question 2

What was held in the case of R v Fitzmaurice [1983]

Answer 2

It was held that incitement could be by suggestion, proposal or the promise of a reward

Question 3

What was held in the case of Race relations board v Applin ?

Answer 3

The court held that incitement can also occur where the accused used threats to induces person to commit a crime

Question 4

What was outlined by the law reform commission ?

Answer 4

The LRC have outlined ‘ command , encourage or request’ as the necessary ingredients for incitement

Question 5

What is the actus Reus of incitement ?c

Answer 5

The actus reus of incitement is persuading another person by whatever means , to engage in the commission of an offence

Question 6

What is the leading irish case that deals with incitement ?

Answer 6

People (AG) v capaldi [1949]

Question 7

What are the facts of the case of the People (AG) v Capaldi [1949]

Answer 7

The defendant enquiries of a doctor whether something could “be done” for a pregnant woman.
Implicit in the enquiry was the doctor’s willingness to perform an abortion.
The doctor was offered a financial incentive, whereupon the doctor refused and asked the defendant to leave the surgery.

Question 8

Why did the court upheld the conviction for the case of the people (AG) v Capaldi [1949]

Answer 8

The Court of criminal appeal held that incitement involved more than the mere expression of desire.
However, in this case, the defendant had done further than simply articulating a desire and had offered a financial incentive.
On that basis the court upheld his conviction for incitement

Question 9

What did the case of the People (AG) v Capaldi [1949] bring about ?

Answer 9

Capaldi brought back an additional requirement - as well as “influence , encourage and command’
- it was suggested than an additional ‘but for ‘ element that requires the incitee to “contemplate that which is incited.

• so if the words led the potential incitee to contemplate the offence - this was sufficient for incitement

Question 10

To whom must incitement be communicated to ?

Answer 10

Incitement should be communicated to either a specific person or group of people

Question 11

Can the accusers be prosecuted if communication of incitement fails for some reason

Answer 11

The accused can be prosecuted for attempted incitement where the communication fails for some reason.

Question 12

Where a person invites another to commit an offence and that other person agrees , what offence can they be charged with ?

Answer 12

They can both be charged with conspiracy

Question 13

What is the mens rea for incitement

Answer 13

The men’s rea for incitement is intention

The accused must intend that the person being incited will commit the offence.

Question 14

What defence can the inciter not use ?

Answer 14

The inciter cannot use a defence of not knowing they were inciting a crime. That falls under ignorance of the law

Question 15

Can an inciter be guilty of incitement if the incitee lacks capacity

Answer 15

There is no incitement if the incited knows that the incitee lacks capacity

Question 16

What are the facts of the case R v Whitehouse [1977]?

Answer 16

• The accused was charged with incitement to commit incest
• The incitee was his 15 year old Daughter
• Sjnce the offence of incest by a female could only be committed by a female above the age of 16. The accused could not be convicted of incitement

Question 17

What approach does the law reform commission Favour in terms of incitement

Answer 17

The LRC favours the subjective approach ( inciters perception of the facts ) over the objective ( actual facts )

Question 18

What is the Irish position on possibility ?

Answer 18

Irish courts have no considered the issue

Question 19

What is the English position on impossibility

Answer 19

In England and Wales , it applied where it was physically impossible ( x incited Y to kill Z but Z is already dead and where it was legally impossible (action is not a crime)

Question 20

When does impossibility not apply ?

Answer 20

• where the means that are encouraged are insufficient or inadequate
• The incitee would not commit the crime
• if it is only possible for the incitee to committee the crime at some point in the future

Question 21

If the incitee goes further than what is incited, will the accused be guilty of incitement in relation to this further offence po

Answer 21

Where the inciter goes further than what is incited, the accused will not be guilty of incitement in relation to this further offence.

Question 22

Is abandonment a defence in Ireland ?

Answer 22

Abandonment appears not to be a defence in Ireland

• once communication is complete then the offence is committed - offence cannot be undone
• incitement occurs at the moment encouragement is communicated and what happens after is irrelevant.