The offence of incitement, according to the text-book definition, consists of counselling, commanding or advising another to commit an indictable crime. Incitement is itself an indictable misdemeanour punishable by fine and/or imprisonment. As the punishment is not regulated by statute, there is theoretically no limit to the amount of fine or the length of imprisonment that may be imposed. It is immaterial whether or not the crime incited is actually committed. If it is committed, the person who incites is guilty also of participating in the completed crime by counselling or procuring its commission. One may under our law incite persons generally, as in a newspaper article, and the person incited need not be known. Moreover, since incitement relates to criminal conduct which has not—or has not necessarily—been completed, it is immaterial that the incitement had no effect on the person solicited.
According to the common law doctrine of common purpose, when several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, that is to say, guilty of aiding and abetting, in respect of every crime committed by any one of them in the execution of that purpose.
A person who counsels or procures the commission of a crime that is afterwards consummated is himself guilty of participating in that crime as an accessory before the fact in the case of felony and as a principal in the case of misdemeanour. Anything done intentionally by way of encouragement is sufficient to render a person guilty of participating in the crime in one or other of these capacities.
Notwithstanding the fact that at common law these parallel offences would exist in any event, the inclusion of subsection (1) of section 4 in the Bill is justified on the ground that there is a substantial deterrent effect to be derived from spelling out the law in clear terms in a modern statute, thereby putting those concerned on notice that they are leaving themselves open to heavy penalties if they encourage others to commit offences under section 2 or 3.
The amendment provides for the substitution of two new subsections for the existing subsections (2) and (3) of section 4. The existing provisions have been criticised by Deputies on the grounds, firstly, that they create a new category of so-called guilt by association, secondly, that they allegedly shift the burden of proof onto the accused person and, thirdly, that they seek to force an accused person to be disloyal to his comrades by providing him with a defence if he publicly disowns them. The first of these criticisms is doubly false in that the existing subsection (2) creates neither a new category of guilt nor guilt by association. The subsection is directly based on the position at common law in regard to the commission of an offence by a number of persons acting with a common purpose. Every person so acting has always been guilty of the offence committed even though the act constituting the offence may have been done by only one of the number. Indeed, at common law each such person is guilty of any other offences that may be committed by one of the group even if these are outside the scope of the original purpose, provided that they arise out of the probable consequence of that purpose. For example if A and B set upon C to beat him up and A kills C, B is also guilty of murder.
However, notwithstanding that there is no basis for the allegation of guilt by association, I have decided to meet the views of Deputies by providing in my amendment for a redraft of subsection (2) in which consent is expressed to be necessary to render a person guilty of an offence as a member of a group in relation to a statement in contravention of subsection (1) made by or on behalf of the group. This revised subsection will be much less severe on the members of a group than the existing common law offence, for which, as I have already explained, the mere existence of common purpose, without specific consent to a crime perpetrated by one of the group, may be sufficient to incriminate all. The new subsection also makes clear what, perhaps, was not so clear in the original version, namely, that the offence therein referred to is an offence under subsection (1) and not a separate offence created by subsection (2).
I am satisfied that there is no foundation for the suggestion that the section as introduced transfers the burden of proof to an accused person. It is a cardinal rule of law that the burden of proof in a criminal case is on the prosecution, and there is nothing in the existing subsections (2) or (3) that shifts this burden in any way. The fact that an accused person is provided with a defence if he shows that the statement was made without his consent or without his knowledge does not mean that the burden of proof is transferred. In actual fact, the defences provided in the existing subsection (3) are ones which—on the analogy of the common law position—would not otherwise be available to the accused. The defence provided at (a) of the subsection, which attracted particular criticism, is completely new and would not be available to a person charged with the common law offence.
Here again, notwithstanding that I am satisfied that there is no substance at all in the criticism offered on this score, I am prepared, in deference to the views of Deputies and to prevent further dishonest criticism by outside commentators which seeks only deliberately to mislead the public, to rewrite subsection (3) in the manner proposed in the amendment in an effort to clarify the position as to the burden of proof.
The proposed new subsection provides that, in a prosecution of a person as a member of a group for an offence in relation to a statement made by or on behalf of the group, it will be. open to the court, on the basis of the facts of the case as a whole, to regard proof of the defendant's membership of the group and of the making of the statement by or on behalf of the group as proof of consent on the defendant's part, in the absence of any adequate explanation by him. I invite particular attention to the fact that it will be open to the court to act in this way only if it thinks it reasonable to do so. In other words, the court will not allow consent to be deduced in that way if it considers that there will thereby be any element of unfairness to the defendant.
I envisage that in practice the provision will operate in the following way. The prosecution will first of all have to prove that the alleged statement was actually made and that it contravened subsection (1); that it was made by or on behalf of a group of persons; and that the accused person was one of the group on whose behalf the statement was made. At this point the new subsection (3) will come into play and if, having looked at all the circumstances of the case, including the constitution and rules, if any, of the group and the extent to which the defendant participated in the activities of the group, the court thinks it reasonable to do so, it will inform the defendant that the prosecution has done enough to establish a prima facie case and that, in the absence of any adequate explanation by him, it may feel constrained to infer from the facts already proved that the defendant consented to the making of the statement. This is not a shifting of the onus of proof of guilt, but a transferring, at the discretion of the court, in respect of one aspect of the case, of the evidential burden or the burden of introducing evidence. This evidential burden is generally—though not necessarily always—on the prosecution and it is clearly distinguished by all the leading authorities from the burden of proof, or risk of non-persuasion of the jury as it is sometimes called.
An example in existing law of the shifting of the evidential burden, as distinct from the burden of proof, onto the accused is the presumption arising from the possession of goods recently stolen. If a person is found in possession of such goods, there is a presumption of fact that he is either the thief or a receiver with guilty knowledge that the goods have been stolen. Thus, where the only evidence is that he was in possession of the goods, a court may infer guilty knowledge if (a) he offers no explanation to account for the possession or (b) it is satisfied that the explanation he does offer is untrue. If, however, the explanation offered is one which leaves the court in doubt, the accused is entitled to acquittal, the prosecution having failed to discharge the burden of proof of guilt.
Another example of the shifting of the evidential burden is to be found in section 28 of the Larceny Act, 1916, under which it is an offence for a person to be found by night in possession of housebreaking tools "without lawful excuse (the proof whereof shall lie on such person)". It has been judicially held that the statute here is referring to the burden of introducing evidence and not the burden of proof. Thus if the accused establishes prima facie that he had a lawful excuse for being in possession of the tools, it is incumbent on the prosecution to prove that he had no such excuse. The amendment represents a genuine attempt to meet the point of view of Deputies who objected to section 4 on Second Stage and I would ask them to accept it in that spirit. The new subsections put it beyond doubt that a member of a group cannot be guilty of an offence where he was unaware of or did not consent to the making of a statement in contravention of subsection (1); and the new subsection (3) makes it clear that the onus of proof in relation to all aspects of the offence is on the prosecution, subject to the proviso that, where the court thinks it reasonable to do so, it may decide that consent on the part of the defendant is to be inferred from proof of the other principal ingredients that constitute the offence, namely, his membership of the group and the fact that the statement was made by or on behalf of the group.
As I have explained, the effect of this is to place an obligation on the accused to offer an explanation of his position in the matter if a prima facie case has been established by the prosecution; and, on the basis of existing case law, it will be sufficient if he can establish a reasonable doubt in the mind of the court, since the overall burden of proof, that is to say, the burden of proving the accused guilty beyond reasonable doubt, will at all times remain on the prosecution.
