The actus Reus
The inciter is one who reaches out and seeks to influence the mind of another to commit a crime, although where, for example, a letter conveying the incitement is intercepted, there is only an attempt to incite (see R v Banks (1873) 12 Cox CC 393). So merely making suggestions is not enough. There must be actual communication so that the other person has the opportunity to agree, but the actus reus is complete whether or not the incitement actually persuades another to commit an offence. In R v Goldman Crim LR 822 the defendant wrote to a Dutch firm (ESV) which had advertised pornography for sale, requesting pornographic material. He was convicted of an attempt to incite another (ESV) to distribute indecent photographs because the offer to buy amounted to an inducement to ESV to commit a crime.
In R v Fitzmaurice, it was held that the necessary element of persuasion was satisfied by a "suggestion, proposal or request was accompanied by an implied promise of reward". In Race Relations Board v Applin, Lord Denning stated that a person may incite another to do an act by threatening or by pressure, as well as by persuasion. The incitement can take any form (words or deeds). It may be addressed to a particular person or group or to the public at large. In R v Marlow Crim LR 897 the defendant wrote and published a book on the cultivation of cannabis, which he advertised, selling about 500 copies. It was alleged that the book was not a bona fide textbook, but was an incitement to those who bought it to cultivate cannabis. 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 judge directed the jury that they had to be sure that the book could "encourage or persuade or is capable of encouraging or persuading other people to produce the drug". The Court of Appeal held that there was no misdirection and the conviction was not unsafe.
Thus, the incitement may be implied as well as express and may be directed to persons generally. So manufacturing and distributing devices that will facilitate the breaking of the law will be taken to encourage those who buy it to break the law (see Invicta Plastics Ltd v Clare). The test is whether there is a lawful use for the device. For example, a recording or transcribing device may be used lawfully without breaching copyright, but a device to detect radar signals so as to avoid speed camera/red light infringement systems would have no other purpose than assisting drivers to evade detection. But note that the act incited must be a crime by the person incited so any alleged breach of copyright would have to be criminal, and the defendant would have to know all the material facts that would make the incited person's behaviour criminal, but not that the behaviour was a crime (see the public policy ignorantia juris non excusat which prevents ignorance of the law from being an excuse). In R v Whitehouse an uncle did not incite his 15-year-old niece to incest because, if the incitement had succeeded and she had submitted to intercourse, she would not have committed an offence. This applied R v Tyrell which stated that where a statutory offence is designed to protect a particular class of individuals against themselves, they cannot, as the victims, commit such offences against themselves. In Tyrell, the girl was not guilty of inciting the man to have under-age sex with her, since the girl could not herself be guilty of the full offence.
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