CHAPTER 6: Incitement
69. Section 2 of the Religious Offences Bill
proposed the creation of a new criminal offence of incitement
to religious hatred. This was to be achieved by amending Part
III of the Public Order Act so as to extend the offence of incitement
to racial hatred to include incitement to religious hatred. This
proposal replicated a clause in the Anti-terrorism, Crime and
Security Bill 2001, which was subsequently dropped. One of the
objectives was to extend the protection provided to mono-ethnic
religions under race relations legislation (for example Jews and
Sikhs) to multi-ethnic religions like Christianity, Islam and
Hinduism. The main argument for rejecting the original proposal
was that it bore little or no relation to anti-terrorism legislation,
and that there should be separate legislation aimed at protecting
religious beliefs and their expression following a proper public
debate and a careful weighing of the options.
70. Incitement is, in origin, a common law offence.
However, it "is not widely used by prosecutors in England".
It is an offence to incite another person to commit a criminal
offence even though that other offence has not been committed
or even attempted.
At common law, for there to be incitement there has to be both
some form of communication with a person whom it is intended to
incite and, in that communication, some attempt to persuade or
encourage that person to commit a criminal offence.
However, for there to be incitement at common law it is not necessary
to prove that the person who it was attempted to incite was in
fact affected by the attempt, and incitement may exist even though
the attempt was unsuccessful.
Moreover the persuasion inherent in the incitement can be implicit.
The incitement does not have to be directed towards a specified
person or group of persons but, rather, may be general.
To be guilty of incitement one must normally intend that the offence
that is being incited will be committed, but sometimes recklessness
as to whether or not the offence is committed will suffice.
71. Incitement has on occasion been used in instances
where there has been an attempt to stir up hatred of a particular
person or groups of persons. However in such instances the hatred
incited has itself taken the form of a criminal offence. Thus
in R v Most, the accused (Most) published in London
in his German language newspaper, an article, "Die
Freiheit". In that article he was found to have incited
his readership "to the murder of the Emperor Alexander, or
the Emperor William, or, in the alternative, the crowned and uncrowned
from Constantinople to Washington" (p 252).
72. From time to time, specific forms of incitement
have been made statutory criminal offences, often as a reaction
to the perception that a novel social mischief has arisen or that
an existing mischief has become particularly damaging to society.
Thus, for example, following the mutinies at Spithead and Nore,
which resulted from harsh discipline and low pay, it was made
an offence, under the Incitement to Mutiny Act 1797, to seduce
any member of the armed forces "from his duty and allegiance
to His Majesty" or to incite them to commit an act of mutiny.
During the first prosecution under the Act counsel described this
statute as being "a temporary statute, and a measure of extraordinary
The history of this and other similar statutes demonstrates some
of the problems inherent in the creation of new statutory forms
73. Despite the fact that the 1797 Act was said
to be temporary in nature it remains in being to the present day.
Prosecutions have been relatively rare and the higher courts have
never had to consider the precise interpretation of the statute.
Nevertheless, the use that has been made of the statute has frequently
proved to be controversial and has often been accompanied by allegations
of political partiality both in relation to who has and who has
not been prosecuted under the Act. Thus, for example, in 1912
five people were prosecuted after they had been involved in the
publication of "An Open Letter to British Soldiers"
in "The Syndicalist". The letter, published at a time
when there was considerable industrial conflict, encouraged soldiers
not to kill civilians, reminding those soldiers of their working-class
roots. In the House of Commons in July 1912 Sir J D Rees commented
that if "there be any crime which is a great crime, a crime
against society, against the Constitution, against the country,
against every British subject, it is the crime of urging troops
not to shoot". As a consequence of the public outcry that
followed the convictions of the five who had been associated with
"The Syndicalist", the Home Secretary exercised the
prerogative of mercy and reduced the sentences on all those convicted.
There was, nevertheless, a persistent perception that prosecution
under the Act was as much a political as a legal matter.
74. In the following year Bonar Law indicated
his support for Ulster Protestants' opposition to Home Rule and
suggested that the Army should, if necessary, refuse to obey orders
if ordered to quell this opposition. Neither Bonar Law nor Sir
Edward Carson, who expressed similar sentiments, was prosecuted
under the 1797 Act.
75. In 1931 a mutiny in Invergordon resulted
from cuts in the pay to members of the Royal Navy. Prosecutions
under the 1797 Act followed. That Act had made it an offence to
seduce a serviceman from his "duty and allegiance
to His Majesty". The 1934 Incitement to Disaffection Act
made it an offence to seduce a servicemen from his "duty
or his allegiance", thus expanding the ambit of the
law. The Act was widely criticized as being an unnecessary restriction
on freedom of speech. This perception remains to this day, Bradley
and Ewing noting for example that the Act "does restrain
certain forms of political propaganda".
The 1934 Act eventually produced the only occasion on which the
higher courts have had to pronounce on this form of legislation.
In 1973 Pat Arrowsmith, a pacifist campaigner, and others distributed
leaflets to the married quarters of soldiers living in the Warminister
area. The leaflets, which were put out in the context of British
involvement in Northern Ireland, contained quotations from soldiers
who had deserted and gave advice about how to desert to either
Sweden or the Republic of Ireland. The leaflets also contained
information on Army regulations regarding discharge and argued
that soldiers should refuse to serve in Northern Ireland. In judgement,
the court described the leaflet as being "not only mischievous
wicked" (p 684). Ms. Arrowsmith was convicted and
the Court of Appeal subsequently upheld the conviction although
it reduced her sentence because the Director of Public Prosecutions
had on a previous occasion refused to prosecute her for distributing
the same literature, arguably leading her to believe that she
would never be prosecuted (p 691). However, an attempt to prosecute
14 pacifists who had distributed similar leaflets failed when
the jury, seemingly on the basis of a perverse verdict, refused
It is necessary to obtain the consent of the Director of Public
Prosecutions before there can be a prosecution under the 1934
Actthis necessity being specifically introduced because
of the "uncertain scope of the Act" which had created
an offence of "a political or possibly political flavour".
Nevertheless, some have seen prosecutions under the 1934 Act,
as in the case of the 1797 Act (which does not have this requirement),
as being motivated as much by political considerations as because
of legal reasons. Thus, for example, Roberston has commented that:
"[the] most powerful incitement to disaffection
was made in the 1987 election campaign by the Prime Minister,
Mrs Thatcher, who announced that service chiefs should consider
resigning in protest if the Labour party were elected and sought
to implement its non-nuclear policy."
76. Some but probably not all of the behaviour
above would, irrespective of the provisions of the 1797 and 1934
Acts, be caught by more general public order legislation. In 1968,
people handing out anti-Vietnam leaflets, which amongst other
things called for American soldiers to desert, were convicted
of conduct likely to cause a breach of the peace contrary to the
then s 5(b) of the Public Order Act 1936.
77. Incitement to racial hatred was first made
a criminal offence under the Race Relations Act 1965. The relevant
legislation is now found in Part III of the Public Order Act 1986.
The legislation extends beyond the realm of that which ordinarily
would be called public in that it is an offence, under sections
18(1) and 18(2), to use threatening, abusive or insulting words
or behaviour or display written material which is threatening,
abusive or insulting and which is intended to or is likely to
stir up racial hatred in private premises as much as in public.
The only exception to this is that, under section 18(2), no offence
is committed if the words or behaviour are used or the written
material is displayed in a dwelling and are not seen or heard
by others than those in the dwelling. Under section 27(1), proceedings
for a prosecution can only be instituted with the consent of the
Attorney-General. Prosecutions under the Act, as in the case of
incitement at common law and the statutory forms of incitement
in the 1797 and 1934 Acts, have been relatively rare. Unsuccessful
prosecutions can be counter-productive:
"When members of the Racial Preservation Society
were acquitted for publishing a newspaper claimed to be 'innocently
informative' rather than 'intentionally inflammatory' they derived
benefit from the publicity surrounding the trial and reissued
the edition, overprinted 'Souvenir Editionthe paper the
Government tried to suppress".
78. As a consequence, it has been argued that
laws against inciting racial hatred create more expectations than
can be fulfilled by prosecuting authorities anxious to avoid giving
racist utterances the publicity of a trial and the endorsement
of an acquittal.
69 e.g. Lord Dholakia "We on these benches find
it difficult to accept that the Bill is the right place for such
legislation" November 28, col 211; Lord Campbell of Alloway
what was agreed by the House was
that there was
no or no sufficient connection with terrorism and that Part 5
should not be included in the Bill" November 28, 2001 col
421; Lord Dixon-Smith "I cannot find any linkage between
this part of the Bill and anything to do with anti-terrorism"
November 28, 2001 Col 430. Back
HL Hansard 27 November 2001, Cols 140-289 Back
A Ashworth "Principles of Criminal Law" (1999) p 482. Back
R v Higgin (1801) 2 East 5. Back
R v Fitzmaurice  2 WLR 227 at p 231. Back
R v Krause (1902) 18 LTR 238 at p 243 Back
Invicta Plastics Ltd v Clare  Crim LR 131. Back
R v Most (1881) 7 QBD 244 at p 252. Back
D Williams "Keeping the Peace", Hutchinson (1967) p
180. The Committee is grateful to Professor Sir David Williams
QC for arranging a seminar for it at the University of Cambridge,
when he outlined for it the history of statutory incitement offences.
The Committee has relied heavily on this and other papers delivered
at the seminar. Back
A Bradley and K Ewing "Constitutional and Administrative
Law", Longman (1997, 12th ed) p 586. Back
R v Arrowsmith  QB 678. Back
G Robertson "Freedom, the Individual and the Law", Penguin
Books (1993, 7th ed) p 209. Back
S 3(2) Incitement to Disaffection Act 1934; Williams op cit p
Robertson op cit p 210. Back
Williams v Director of Public Prosecutions (1968) 112 Solicitors
Journal 599 Back
Robertson op cit pp 98-99. Back