Incitement

Incitement

Incitement to commit an offence is itself an offence. There is a specific offence of incitement to murder under section 4 of the Offences against the Person Act. There are also several other instances of statutory offences of incitement or counselling of something, which is also an offence.

There must be communication and intent for the offence to be committed. Incitement usually involves encouragement and persuasion. It may involve pressure, threats, or duress.

An attempt to incite is an offence. An incitement to attempt an offence is an offence.

Acts Required

The relevant guilty act for the purpose of incitement is the act of influence and encouragement of another to commit the requisite offence. Incitement may involve duress, threat, a reward, other pressure or encouragement.

Any element of persuasion, exhortation, suggestion or inducement may constitute incitement. Any working on the mind of another to have the requisite effect suffices.

The mere desire that an offence be committed is not sufficient. There must be something more than a mere desire to commit the offence.

Some steps must be taken towards engaging and procuring another to do it. An act of solicitation or encouragement is required. There must be actual encouragement or incentivisation.

There is no requirement that the incitement leads to the offence. The incitement of itself is the offence and the offence is committed at that point.It does not matter if what is are solicited or procured it in fact impossible.

Communication

The incitement or incentive must be actually communicated to the persons intended to be incited or encouraged. A person may be convicted of an attempted incitement.

The communication need not be to a particular person. It may be included in the media generally.

If the person offering the incitement and the incited person agree, they may become conspirators.

Intent

It must be intended that  the solicitation or incitement is acted on. It is essential that the person intended a person whom he incited to commit the offence. It does not matter whether or not this happens.

If the person incited is not able to commit the offence, and the defendant is so aware, there is no incitement. A person who incites may himself be convicted of the principal offence on the basis that the person incited acted on his behalf in implementing the offence.

As with the other incomplete offences, there may be a distinction between incitement to commit an offence generally and a specific offence. Where the incitement is of a general nature, the fact that it is impossible is irrelevant. If, however, there is a specific incitement and objective that is impossible, this may not be sufficient for incitement.

Incitement to Hatred

The Prohibition of Incitement to Hatred Act makes it an offence to utter threatening, abusive or insulting words or publish, display, or broadcast such material where it is intended or likely to incite hatred.
“hatred” means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation;

It is an offence is  for a person—

• to publish or distribute written material, to use words, behave or display written material in any place other than inside a private residence, or
•  inside a private residence so that the words, behaviour or material are heard or seen by persons outside the residence,or
•  to distribute, show or play a recording of visual images or sounds,

if the written material, words, behaviour, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.

Procurement

A person may counsel or procure a crime, although absent when it is physically committed. A person who procures the crime may be the principal in the case of an innocent agent. The person concerned causes the crime to be committed.

Procurement implies an attempt to secure an outcome or result. It implies a causal link. If, for example, an order is revoked, a person may not procure the offence, but he or she may be liable as having counselled it.

The Criminal Law Act 1997 provides that any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender.

Counselling refers to encouragement and advice and is wider than procurement. It often involves arranging and soliciting the crime itself. In each case, it is necessary that the crime is committed and that the person who counselled or procured it played some role in its causation.

The link between the offence and the procurement or counselling need not be direct. An offence is required to have happened,  but it need not necessarily have been caused by the procurement or counselling. It is sufficient if another crime is committed, which is such that it is likely to flow follow from the counselling.