Cases - inchoate offences

Inchoate offences have been the subject of amendment by the Serious Crime Act 2007

The Government's policy on the reform of the criminal law on encouraging and assisting crime is based on the Law Commission's Report on Inchoate Liability for Assisting and Encouraging Crime (Law Com No. 300, CM 6878, 2006).

The Act abolishes the common law offence of incitement and in its place creates new offences of intentionally encouraging or assisting crime and encouraging or assisting crime believing that an offence, or one or more offences, will be committed. The Act contains a defence to the offences in Part 2 (where the encouragement or assistance is considered to be reasonable in the circumstances) and an exemption from liability where the offence encouraged or assisted was created in order to protect a category of people (and the person doing the encouragement or assistance falls into that category).

Curr, R v (1968) CA

^[Incitement - intention regarding the surrounding circumstances and the result of the actus reus]

D was trafficking in family allowance books. He lent money in return for family allowance books containing signed vouchers. Agents under D's direction cashed the signed vouchers.

Held: Unless the agents knew their actions to be unlawful and therefore a summary offence D could not solicit them.

Not guilty.

Fitzmaurice, R v (1983) CA

^[Incitement - D may escape liability if offence is impossible]

D was asked by X to organise a robbery of a woman.

D, and others, did not know that X planned to obtain a reward for reporting the robbery of a security van, which would arrive at the same time as the fictional robbery.

Held: D was guilty of inciting a robbery because its commission ('robbing a woman at Bow') was not impossible at the time of the incitement, regardless that it ended up being a charade.

Where an offence is de facto impossible, D will not be liable for incitement to commit it.

Guilty

Higgins (1801)

^[Incitement - encouragement. persuasion or command of another to commit an offence]

D solicited a servant to steal his master's goods.

Held: Inciting another to commit any offence is an indictable offence at common law.

(1) 'is there is not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act.'

(2) D may incite by words as well as by acts.

Guilty

Invicta Plastics Ltd v Clare (1976) QBD

^[Incitement = encouragement, urge, spur on, persuasion or command of another to commit an offence]

D advertised for sale a police radar-alerting device that was unlawful to operate without a licence, although it was not unlawful to own one.

Held: D was guilty of inciting an unlawful act, by persuading and inciting the use of the device. The actus reus may be implied rather than express, incitement being determined by looking at the acts taken 'as a whole'.

Guilty

James and Ashford, R v (1985) CA

^[Incitement - acts that are not]

D manufactured devices used to reverse electricity meters. He intended to sell them to a third party retailer, who in turn was to sell the boxes to customers who would employ the device unlawfully.

Held: D did not incite the 'middleman' to use the boxes, nor was there evidence that D incited the middleman to incite the ultimate users.

Not guilty

Race Relations Board v Applin [1973] HL

^[Incitement - encouragement, urge, spur on, persuasion or command of another to commit an offence]

D distributed a circular complaining of a neighbour's adoption of non-white foster children. D wanted the neighbour (Mr and Mrs Watson) to adopt white foster children only.

Held: D incited others to do an unlawful act contrary to the Race Relations Act 1968.

Lord Denning:

'to "incite" means to urge or spur on by advice, encouragement or persuasions, and not otherwise ... A person may "incite" another to do an act by threatening or by pressure, as well as by persuasion.'

Guilty

Shaw, R v (1994) CA

^[Incitement - intention regarding the surrounding circumstances and the result of the actus reus]

D persuaded E to accept bogus invoices and to issue cheques in the normal manner. D knew that E would be acting dishonestly.

Held: D's motive was to reveal the company's poor accounting systems not to obtain money by deception.

Not guilty.

Whitehouse, R v (1977)

^[Incitement - formally not possible to incite a lawful act - intention regarding the surrounding circumstances and the result of the actus reus]

D urged his daughter to commit incest with him; she was legally incapable, by her age, of being either a principal or accessory to incest.

Held: D was not guilty of incitement for persuading his daughter to commit an act, which was not an offence.

Scarman LJ:

"at common law the crime of incitement consists of inciting another person to commit a crime ... An inciter is one who reaches and seeks to influence the mind of another to the commission of a crime"

Criminal Law Act 1977 s 54, it is an offence for a man to incite a female whom he knows to be his granddaughter, daughter or sister, to have sexual intercourse.

Not guilty