Inchoate Liability

 In Higgins it was held that to solicit a servant to steal his master’s goods was a misdemeanor and the inciter will be guilty of incitement regardless of whether the act incited was committed.

At common law it is recognized that the actus reus can be committed by non-hostile encouragement, therefore an inciter includes:

‘One who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the others mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity’

Merely making suggestions is not enough and there must be actual communication, the reason for this is so the other person can agree. Nevertheless whether the incitement actually persuades another to commit an offence the actus reus is still complete. In Marlow the offence of incitement was committed as soon as the book was published and read by anyone regardless of whether it influenced them or not. It is sufficient that D knew, he didn’t have to realize that his advice would be followed but that it would have some impact and it would be the commission of the crime committed. As soon as D has incited E to commit a crime, the act of incitement is complete even if it hasn’t made a difference to E’s mind.

The offence will be committed when and where the communication occurs. Therefore if a person incites someone and the person incited did not understand what they are talking about, the inciter will still be guilty of incitement even though it did not influence the other person.

If there is communication with an intended incitee, the offence can be committed regardless of whether D’s incitement succeeds in persuading E to commit or to attempt to commit the offence.  Lord Kenyon stated:

‘but it is argued, that a mere intent to commit evil is not indictable, without an act done, but is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act: and the answer given at the bar is decisive, that it would be sufficient to constitute ac overt act of high treason’

The mens rea is really important in this offence and consists of the following elements:

• D must intend the consequences which are specified in the actus reus. The essence of incitement seems to be an intention to bring about the criminal conduct in another.
• In the case of counseling and abetting, the prosecution must prove that D knew of the circumstances of the conduct incited which are the elements of the crime in question.

The main principle in these offences is that D knows the mens rea of the person incited. There is no incitement if the person incited does not know he is committing an offence, but D may still be guilty of incitement.

Even if D did not know that the actions that he intends for E to perform will commit a crime he will still be guilty, ignorance of the criminal law is no defence.

If D believes that E will do the act without the mens rea for the crime in question then D will intend to commit that crime through an innocent agent, if it is capable to be committed, and may become guilty as the principal or an abettor If the actus reus is completed by E,.

Sections 44-60 of the serious crime act 2007 replace the common law of incitement and in its place they have three offences of encouraging and assisting crime. The new form of inchoate liability is wider and shows a big change in criminal law.

        The serious crime act 2007 part 2 creates offences where:

• D does an act that is capable of encouraging or assisting another, P and intending to encourage or to assist P to commit a crime – S44.
• D does an act that is capable of encouraging or assisting believing that the offence by P will be committed and D is under the impression that his act will or has encouraged its commission S45.
• D does an act that is capable of encouraging or assisting the commission of one or more of a number of offences and he believes that * one of more of those offences will be committed and * that his act will encourage or assist the commission of one or more of them S46.

Part two also fails to deal with the issue of impossibility and at common law a defendant cannot be found guilty if the crime he was going to commit was impossible.

         The new sections introduced go beyond the common law of incitement because they include the defendant doing an act which is capable of assisting even if it isn’t encouraging, where the full offence is not committed. The act done must be one which when done must involve the full commission of the full offence by the person incited or his innocent agent. In Whitehouseit was stated that it was not an offence at common law for a man to incite a girl of 15 to permit him to have incestuous sexual intercourse and therefore he could not be committed of incitement. D cannot be guilty of inciting an offence that E is not incapable of committing.

Incitement of a person to commit an offence is not the offence of attempting to commit that offence but the incitement of an innocent agent might be.

The offences are seen as being complex because it seems to be unnecessary to further criminalize people when they would already be guilty of an offence such as theft.

        The commission has addressed the pros and cons of offences of assisting and encouraging. There are supporting arguments such as the inchoate offences:

• Allow enforcement agencies to prevent crime at an earlier stage.
• Eliminate the element of risk which is inherent in making D’s liability turn on whether P will act or not.
• Reflect D’s culpability for the actions he ahs taken
• Provide appropriate labels for the criminal conduct.

However against the offences there are arguments such that:

• The offences are too broad and criminalize the defendants conduct on the basis of his mens rea alone.
• Too premature and may saddle D with unfair liability.
• Create a disparity between the criminality of the assister who will be liable in every case and the principal who will only be liable if he performs the full offence.
• The offences created are likely to be in vague form, a lot of the dependence of if the defendant is guilty or not will be on his mens rea.

However the arguments that were against the offences were rebutted on the basis of moral principle, in that D is deserving of punishment because of his acts of assisting and encouraging regardless of whether the other has actually performed the conducted of the substantive offence or not.

David Omerod was correct in stating that the common law offence of incitement was straightforward and uncomplicated, either you were guilty of incitement or you weren’t. Nevertheless according to the law commission the common law of incitement suffered from many defects which included:

• Uncertainty as to whether it must be D’s purpose that P should commit the offence that D is inciting.

• the fault element of the offence has been distorted by decisions by the Court of Appeal, and the decisions made by them have wrongly focused on P’s state of mind rather than D’s state of mind
• there is uncertainty as to what extent it is a defence to act in order to prevent the commission of an offence or to prevent or limit the occurrence of harm
• There is uncertainty as to the circumstances in which D is liable for inciting P to do an act which if done by P would not involve P committing an offence – this could be because P is under the age of criminal liability or lacks the mental element of a guilty mind.
• The rules governing D’s liability in cases where D incites P to commit an inchoate offence have resulted in absurd distinctions.
• D may have a defence if the offence that he incites is impossible to commit, but impossibility is not a defence to other inchoate offences apart from cases of common law conspiracies and hence the common law is in need of clarification.

There are gaps where a facilitation offence would have sufficed instead of abolishing the common law of incitement and replacing it with more complex offences. The gap in the previous law that had been identified was the fact that whereas criminal liability existed for incitement at the inchoate level but there was no inchoate liability for facilitation.

John Spencer is of the view that the simple solution for the gap in the offence would have been to leave the offence as it is and to create a new offence of facilitation and the new offences are complicated and unnecessary. He states that having three offences where only one would do creates complications not just in theory but in practice too because it enables defendants to argue that they have been charged with the wrong one.

        

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