What is incitement? And how is it a criminal offence?

by The FindLaw Team

Throughout our daily interactions most of us probably don’t dwell too much on the words we use during our normal course of dealings, because why would we? However, law is dependent on accuracy – even in regards to legal terms which may not on the surface seem to have a definitive legal meaning, such as incitement. Because the law for the most part deals in absolutes, offences such as ‘incitement’ require an outline in respect to what elements are necessary to constitute an offence, which is addressed both within the common law and in statute.

What is incitement?

Typing the term, ‘incitement’ into Google, came up with the following web definition from Princeton University:

incitement(n):  an act of urging on or spurring on or rousing to action or instigating…”

The obvious question would be; is how incitement is legally defined? Starting off with the common law definition of incitement, which is derived from R v Eade, Smart AJ said the following in regards to the offence:

“In Young v Cassells… Stout CJ, in an oft quoted passage said: “The word ‘incite’ means to rouse; to stimulate; to urge or spur on; to stir up; to animate.” In R v Massie… Brooking J A, with whom Winneke P and Batt JA agreed said of “incite”, common forms of behaviour covered by the word are ‘command’, ‘request’, ‘propose’, ‘advise’, ‘encourage’ or ‘authorise’”. Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.”

Essentially, the common law definition of incitement aligns quite neatly with the general dictionary definition, however, we should probably add that incitement can also include a person who incites “… another to do an act by threatening or by pressure, as well as by persuasion…” as stated by Lord Denning in Race Relations Board v Applin.

However, it should be emphasised that under the common law – incitement  is not in itself a crime, unless what was incited was a criminal offence.

Incitement and legislation

Incitement is also defined in legislation in many states, and using s 321G of Victoria’s Crimes Act as our statutory example, incitement is:

“(1) Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by-

(a)  the person incited;

(b)  the inciter; or

(c)  both the inciter and the person incited-

if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement.

(2) For a person to be guilty under subsection (1) of incitement the person-

(a)  must intend that the offence the subject of the incitement be committed; and

(b)  must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place.

(3) A person may be guilty under subsection (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible.”

A person does not have to act on the incitement

One of the interesting aspects of incitement, is that the substantive offence does not require a person to act upon the incitement, but rather, an attempt to incite is sufficient, as was noted in the Victorian Court of Appeal in R v Dimozantis, with the Court approving the ruling of the trial judge:

“The learned trial judge ruled that it was not necessary, as an element of the offence, to prove that the person incited acted upon the incitement, although it was necessary to prove that the course of conduct urged would, if it had been acted upon as the inciter intended it to be, amount to the commission of the offence.”

Generally speaking, there is no requirement that a person incited to commit an act, but rather, the inciting behaviour must be within the knowledge of the other person.

How is the offence proven?

In order for incitement to be proven, the onus is on the prosecution to show that there was incitement to commit an offence as stated by Isaacs J in Walsh v Sainsbury:

“The mere fact that A “incites to” or “urges” the commission of an offence or offences against a Commonwealth law is enough to constitute A an offender. He may “incite” or “urge” a particular person or generally, but, the “incitement” or the “urging” once proved, the offence is complete. Withdrawal does not obliterate it, though no doubt it may affect the measure of punishment. But to be itself an offence the “incitement” or the “urging” must be to the commission of some ‘offence’.”

This piece is only a general outline of the offence of incitement. Anyone who is experiencing an issue with a criminal matter should seek the help of a lawyer who will be able to assist.


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