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64. He noted that the editors of Archbold asserted ‘to solicit another to commit a crime is indictable at common law, even though the solicitation or incitement is of no effect.’
65. Tuckey LJ went on to say:
‘The nature of the offence of incitement is accurately defined in the draft Criminal Code produced by the Law Commission in their paper No 177 at clause 47 which says:
A person is guilty of incitement to commit an offence or offences if
- (a) he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and
- (b) he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences.’
66. Then, Tuckey LJ said:
‘On this analysis of the law there is no principle of parity of mens rea of the kind contended for by the respondent and accepted by the magistrate. Were that to be the law, then all the cases about agent provocateur would have been wrongly decided because in each such case (where often the agent provocateur is a policemen (sic)) if it were a defence to the defendant to say: “Well, the officer never intended to commit the offence which I asked him to commit”, there would be no offence of
‘On this analysis of the law there is no principle of parity of mens rea of the kind contended for by the respondent and accepted by the magistrate. Were that to be the law, then all the cases about agent provocateur would have been wrongly decided because in each such case (where often the agent provocateur is a policemen (sic)) if it were a defence to the defendant to say: “Well, the officer never intended to commit the offence which I asked him to commit”, there would be no offence of
