Incitement - The mens Rea

The mens Rea

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. In R v Curr, the defendant incited women to commit offences under the Family Allowances Act 1945 but, because the prosecution did not prove that the women had the mens rea to constitute the offence, the conviction was quashed. Fenton Atkinson J. explained that:

In our view, the argument for the prosecution here gives no effect to the word "knowing" in, and in our view could only be guilty.. if the woman solicited that, that is, the woman agent sent to collect the allowance, knew that the action she was asked to carry out amounted to an offence.

This is not a satisfactory decision. In R v Whitehouse, a father was charged with inciting his fifteen year-old daughter to have sexual intercourse with him. At this age, she would have been excused from liability for committing the offence of incest with her father. The conviction was quashed on appeal and Scarman LJ. explained that:

... we have therefore come to the conclusion, with regret, that the indictment does not disclose an offence known to the law because it cannot be a crime on the part of this girl aged 15 to have sexual intercourse with her father, though it is of course a crime and a very serious crime, on the part of the father. There is here incitement to a course of conduct, but that course of conduct cannot be treated as a crime by the girl.

He continued:

It is regrettable indeed that a man who importunes his daughter under the age of 16 to have sexual intercourse with him but does not go beyond incitement cannot be guilty of a crime.

The Court of Appeal in R v Claydon (2005) EWCA Crim 2817 has repeated this criticism. Claydon had sexually abused the thirteen year-old son of his partner in the 1980s, and was tried twenty years later on an indictment containing counts of sexual offences, including two counts of incitement to commit buggery. 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 1 QB 320-321). It was argued by the Crown that, although the boy could not in law have committed the act incited, it was nevertheless quite possible for the defendant to incite him. Having considered R v Whitehouse and R v Pickford, the Court of Appeal felt obliged to reject that argument. As Laws J. said in Pickford, "it is a necessary element of the element of incitement that the person incited must be capable of committing the primary crime." The Court agreed because the focus of the offence of inciting is solely on the acts and intention of the inciter while the intention of the person incited are not relevant when considering whether the offence of incitement has been committed. 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." Furthermore, Smith (1994) said that "the court has confused the mens rea of incitement with the mens rea of the offence incited".