Incitement Flashcards
Define incitement
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
What was held in the case of R v Fitzmaurice [1983]
It was held that incitement could be by suggestion, proposal or the promise of a reward
What was held in the case of Race relations board v Applin ?
The court held that incitement can also occur where the accused used threats to induces person to commit a crime
What was outlined by the law reform commission ?
The LRC have outlined ‘ command , encourage or request’ as the necessary ingredients for incitement
What is the actus Reus of incitement ?c
The actus reus of incitement is persuading another person by whatever means , to engage in the commission of an offence
What is the leading irish case that deals with incitement ?
People (AG) v capaldi [1949]
What are the facts of the case of the People (AG) v Capaldi [1949]
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.
Why did the court upheld the conviction for the case of the people (AG) v Capaldi [1949]
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
What did the case of the People (AG) v Capaldi [1949] bring about ?
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
To whom must incitement be communicated to ?
Incitement should be communicated to either a specific person or group of people
Can the accusers be prosecuted if communication of incitement fails for some reason
The accused can be prosecuted for attempted incitement where the communication fails for some reason.
Where a person invites another to commit an offence and that other person agrees , what offence can they be charged with ?
They can both be charged with conspiracy
What is the mens rea for incitement
The men’s rea for incitement is intention
The accused must intend that the person being incited will commit the offence.
What defence can the inciter not use ?
The inciter cannot use a defence of not knowing they were inciting a crime. That falls under ignorance of the law
Can an inciter be guilty of incitement if the incitee lacks capacity
There is no incitement if the incited knows that the incitee lacks capacity
What are the facts of the case R v Whitehouse [1977]?
- 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
What approach does the law reform commission Favour in terms of incitement
The LRC favours the subjective approach ( inciters perception of the facts ) over the objective ( actual facts )
What is the Irish position on possibility ?
Irish courts have no considered the issue
What is the English position on impossibility
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)
When does impossibility not apply ?
- 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
If the incitee goes further than what is incited, will the accused be guilty of incitement in relation to this further offence po
Where the inciter goes further than what is incited, the accused will not be guilty of incitement in relation to this further offence.
Is abandonment a defence in Ireland ?
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.
