Can you be charged with inciting someone to commit an offence even if they don’t act on it?

The short answer is: generally, yes, but it depends on the circumstances of the case.

In the eyes of the law, inciting a person to commit an offence that, if committed would be of a criminal nature, is sufficient regardless of whether the person carries out the act relating to the incitement.

However, the courts have determined that it will consider the circumstances surrounding the words or actions used to ‘incite’ a person on a case by case basis when determining whether it amounts to incitement.

The dictionary defines incitement as “an act or urging on or spurring on or rousing to action or instigating…”

The court defines incitement similarly, as “to rouse; to stimulate; to urge or spur on; to stir up; to animate” (Young v Cassells).

In R v Chonka, a case about whether someone had incited an act of indecency, the counsel for the accused made an important distinction in determining whether a person was guilty of an incitement offence: “you must… draw a distinction between simply talking about something and encouraging someone else to go and do it.”

Counsel was referring to ‘dirty phone calls’ and argued that unless there was a suggestion in the phone calls to actually do something and that something was an act of indecency, then it cannot be an incitement.

In this case, the actions of the accused were found to amount to incitement, however, it was an important distinction that was made by the accused’s counsel.

To summarise, the courts view when it comes to incitement is that it does not matter if the person who was incited actually committed the offence. Instead, when considered in the circumstances, the act that was incited would have amounted to a criminal act if had been committed.

 

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