Friends, There are people who should know better suggesting Inspector Gadget should be criminally liable for “Incitement” for the tweet, “Now that a member of the public has shot a policeman dead, shall WE riot?”.
Take a deep breath with me and consider the following:
1. The common law offence of incitement was abolished by the Serious Crime Act 2007. “Incitement” is kaput.
2. The new offences under the SCA are found at ss 44, 45 & 46 and are called “Encouraging or Assisting an Offence”.
3. To understand criminal law, one must be able to distinguish actus reus (the act) and mens rea (the intention or mental element). Unless a crime is one of the no intent crimes of strict liability (speeding, etc), one must not only do an act, he must have the requisite mental element to be liable for an offence.
Let’s start with s44: INTENTIONALLY ENCOURAGING OR ASSISTING AN OFFENCE
The actus reus of this offence is, “doing an act capable of encouraging or assisting in the commission of an offence”.
While a tweet could be “doing an act”, the issue here is whether the tweet was capable of encouraging or assisting the commission of an offence.
Is “shall we riot?” capable of encouraging a riot?
In this case, I would suggest “shall we riot?” was, by any reasonable analysis, a rhetorical question, and not capable of encouraging anything other than a mature consideration of the point he was attempting to make.
Even if you do think that “shall we riot?” is capable of encouraging a riot, one must next consider whether InspGadget’s tweet meets the test for mens rea.
The mens rea for s44 is, “he intends to encourage or assist its commission”. s44 goes on to state at 44(2), “But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.
In this case, I’ve yet to see any evidence that InspGadget intended to encourage others to riot.
I have however seen a great deal of evidence that he was attempting to demonstrate the know-nothingness of justifications for last year’s riots.
Accordingly, I’m just not seeing criminal liability under s44. But let’s see if we can get him under s45!
s45: ENCOURAGING OR ASSISTING AN OFFENCE BELIEVING IT WILL BE COMMITTED
s45 provides an even higher test. The actus reus here is the same as s44 – but the mens rea is, “He believes (i) that the offence will be committed; and (ii) his act will encourage or assist its commission”.
Does InspGadget believe that a police riot will happen? I have yet to see any evidence in support of such a suggestion. Does InspGadget believe his act will encourage or assist a police riot? Again, really?
s46: ENCOURAGING OR ASSISTING OFFENCES BELIEVING ONE OR MORE WILL BE COMMITTED
The actus reus here is doing an act capable of encouraging or assisting the commission of one or more of a number of offences.
As above, I don’t see the words, “shall we riot?” as capable of encouraging anything other than consideration of a rhetorical question.
As for s46 mens rea, the test is, “he believes – (i) that one or more of those offences will be committed (but has no belief as to which); and (ii) that his act will encourage or assist the commission of one or both of them”.
I have yet to see any evidence whatsoever that InspGadget has a belief that any police riot will be committed or that his tweet will encourage anybody to riot.
1. We all know what people’s opinions are like; and
2. I obviously spend too much time on Twitter.