The Article 20 of the International Covenant on Civil and Political Rights requires that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
[1] That few journalists have been prosecuted for incitement to genocide and war crimes despite their recruitment by governments as propagandists is explained by the relatively privileged social status of journalists and privileged institutional position of news organizations in liberal societies, which assign a high value to a free press.
[6] The rationale of incitement matches the general justification underpinning the other inchoate offences of conspiracy and attempt by allowing the police to intervene before a criminal act is completed and the harm or injury is actually caused.
The plan to commit crime may exist only in the mind of one person until others are incited to join in, at which point the social danger becomes more real.
We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take.
Thus, the offence of incitement has been preserved to allow the police to intervene at an earlier time and so avert the threatened harm.The inciter must intend the others to engage in the behaviour constituting the offence, including any consequences which may result, and must know or believe (or possibly suspect) that those others will have the relevant mens rea.
At that time, there was an irrebuttable presumption that a boy under the age of fourteen years was incapable of sexual intercourse (applying R v Waite (1892) 2 QBD 600–601 and R v Williams [1893] 1 QB 320–321).
It further endorsed the views of Smith and Hogan (10th Edition at p 295) who criticised the decision in Curr on the basis that "...the real question should not have been not whether the women actually had the knowledge, but whether D believed they had."
In R v Goldman [2001] Crim LR 822 the defendant wrote to a Dutch firm (ESV) which had advertised pornography for sale, requesting pornographic material.
In R v Fitzmaurice,[13] it was held that the necessary element of persuasion was satisfied by a "suggestion, proposal or request [that] was accompanied by an implied promise of reward".
In Race Relations Board v Applin,[14] Lord Denning stated that a person may incite another to do an act by threatening or by pressure, as well as by persuasion.
In R v Marlow [1997] Crim LR 897 the defendant wrote and published a book on the cultivation of cannabis, which he advertised, selling about 500 copies.
The defence claimed the book as a genuine contribution to the debate on the legalisation of cannabis and said that it only contained general advice which was freely available elsewhere.
The Court of Appeal held that the test was to decide what sort of conduct was incited, attempted or the subject of a conspiracy.
If the evidence shows incitement in general terms, e.g. to rob a security van, this is always possible, whereas if the subsequent agreement relates to a specific but fictitious crime, there might be an acquittal.
In DPP v Armstrong [2000] Crim LR 379, 1999 EWHC 270 (QB) it was held that impossibility of the commission of the offence incited was irrelevant to guilt.
This "view reflects longstanding law and is shared by the Federalist Society, the American Civil Liberties Union, the Foundation for Individual Rights and Expression.
"[22] In 2021, U.S. President Donald Trump was impeached for "incitement of insurrection" for allegedly provoking the January 6 Capitol attack; he was later acquitted by a minority of the U.S. Senate.