Consultation Paper on Inchoate Offences - Law Reform Commission

direction. The analysis of criminal attempt in Chapter 2 above, 49 whichsuggested attempt have its ordinary meaning and therefore be consideredintentional activity, applies to incitement. As with attempt the notion ofintention for incitement should encompass both direct and oblique intention.4.30 The Commission provisionally recommends that the mens rea ofincitement should remain as intention that the incited act be carried out.(3) The conduct incited(a)Requirement for potential criminal liability of incitee4.31 A specific crime must be incited for common law incitement.Significantly, the person incited, the incitee, must be capable of being guiltyof the crime they have been incited to do. In R v Whitehouse 50 the EnglishCourt of Appeal held that the defendant could not be convicted of incitinghis 15 year old daughter to commit incest (by having sex with him) because,in the event she complied with the request, she would not be liable for incest;such offences exist to protect rather than criminalise girls of her age.Incitement was not made out in Whitehouse because in the circumstances(the incitee being exempted from liability for incest) what was incited wasnot really criminal. After Whitehouse in England a specific crime wasenacted of inciting a girl under 16 to commit incest, which in turn wasreplaced with an offence that protected boys also. The holding inWhitehouse still stands, however, as a general common law rule forincitement.4.32 Whitehouse can be viewed as a case where the definition ofincitement was not fully made out because what was encouraged was notcriminal in the circumstances. The case of R v Curr 51 can be understood onthis basis too. The decision has been criticised for distorting the mens rea ofincitement 52 in that it confuses the mens rea of the incitee for the mens rea ofthe incitor. The defendant in Curr operated a lending scheme where he gaveadvance cash for family allowance vouchers, which he then had somewomen cash in at a later date. At issue was whether the women heemployed to cash in the vouchers knew what they were doing wasimpermissible, it being criminal to obtain payment for vouchers that did notbelong to the claimant (outside certain circumstances) knowing that it wasimpermissible to do this. The Court of Appeal held that the defendant wasentitled to an acquittal of the incitement charge if indeed the women did notknow what they were doing was impermissible. This decision might be49505152See above at paragraphs 2.93-2.95.[1977] 3 All ER 737.[1968] 2 QB 944.Heaton Criminal Law Textbook (Oxford University Press 2006) at 514.113