Consultation Paper on Inchoate Offences - Law Reform Commission

wishes her husband would die. In these examples the mens rea may well besuch that the expression of desire is rendered criminal incitement.4.09 In addition, it can be noted that Capaldi 14 proceeds on the basisthat there is authority for the proposition that mere expression of desire is notincitement. The principal authority cited is the dicta of Le Blanc J in R vHiggins stating:“It is contended that the offence charged … is no misdemeanourbecause it amounts only to a bare wish or desire of the mind to doan illegal act. If that were so, I agree that it would not beindictable. But this is a charge of an act done, namely, an actualsolicitation of a servant to rob his masters, and not merely a wishor desire that he should do so.” 15It is crucial to note – as was not done in Capaldi – that this dictadistinguishes from incitement mere wish or desire, not the mere expressionof wish or desire. The central question for the Court of Criminal Appeal inCapaldi was really one of mens rea – whether the defendant really intendedto induce the doctor to perform an abortion. The defendant‟s appeal wouldhave been difficult to make out when centred on this issue. Hence, thedefence appeal centred on a claim that the jury was not properly instructedon the difference between mere expression of desire and incitement. As aresult of this defence strategy, the judgment disposes of the case by referenceto the difference between an expression of desire and an incitement, and anopportunity for a judicial statement of the mens rea of incitement wasmissed.(iv)Communication need not be direct4.10 Incitement can occur despite the incitor not having met, nor evencommunicated directly with, the incitee. For example, where a person paysa subscription fee to a child pornography website, they may be liable forinciting the distribution of child pornography despite the payment receivingprocess being automated. 16 The incitee in this case is the person operatingthe child pornography business, who is capable of being encouraged tocontinue their criminal enterprise by people paying subscription fees.141516(1949) 1 Frewen 95.R v Higgins (1801) 2 East 5, 22. Quoted in The People (Attorney General) v Capaldi(1949) 1 Frewen 95, 96-97.R (O) v Coventry Magistrates’ Court [2004] Crim LR 948.106