Smith, R v

Incitement requires conduct intended to urge, encourage or otherwise influence another to commit an offence. The ordinary meaning of incite may be conveyed by appropriate synonyms, including “stimulate”, when read in context.

Where correspondence contains fictional characters or events, the jury must decide whether it was wholly fantasy or was intended to encourage real offending. An actual or identified victim need not exist at the time of the incitement. The Crown must nevertheless prove both incitement and the requisite intention so that the jury is sure.

For sentence, the absence of completed substantive offending is irrelevant to liability but material to proportionality. Potential harm may justify protective sentencing, but terms must reflect that no rape, assault or attempt was committed.

Smith and Turner were convicted at the Crown Court at Newcastle on 13 March 2003 of incitement to rape and incitement to indecently assault a female. The Crown relied wholly on their correspondence, which described sexual offending against young girls. Their defence was that the correspondence was fantasy and did not amount to criminal incitement.

Smith appealed against conviction and sentence. Turner appealed against sentence only. Smith challenged the directions on incitement, the treatment of fantasy evidence, and the burden of proof. Both appellants challenged the length of their longer-than-commensurate and extended sentences.

1. Conviction appeal dismissed. The judge’s definition of incitement as urging, spurring on, stimulating, encouraging or pressuring another person was adequate in this context. Although fewer synonyms may generally be preferable, the inclusion of “stimulate” neither misstated the law nor rendered the convictions unsafe.
2. Fantasy and intention. The judge fairly identified the extensive material capable of being fantasy. No further specialised direction was required. The jury had to decide whether the correspondence was, or might have been, pure fantasy, or whether they were sure that Smith intended to incite Turner to commit real sexual offences against real, though as yet unidentified, children. The absence of an identified victim at the time of incitement did not prevent liability.
3. Burden of proof. Read as a whole, the summing-up repeatedly made clear that the Crown bore the burden throughout and had to make the jury sure of each defendant’s incitement and intention. The reference to the possibility of acquittal if a defendant was engaged in fantasy did not reverse or dilute that burden.
4. Sentence appeals allowed in part. The offences and the appellants’ risk of future harm justified both longer-than-commensurate custodial terms under the Powers of Criminal Courts (Sentencing) Act 2000 and, on the rape counts, extended sentences. However, completed rape, indecent assault or attempted offending had not been proved. That absence was irrelevant to guilt but material to sentence. The sentencing judge had taken too high a starting point by treating the rape incitement as if it warranted the starting point for completed aggravated rape.
5. The custodial term on the rape counts was reduced to nine years, comprising six commensurate years and three additional years, with an extended licence period of five years. The sentence on the indecent-assault counts was reduced to seven years, comprising five commensurate years and two additional years. No extended licence period was imposed for those counts.

• Court of Appeal (Criminal Division). In [2004] EWCA Crim 2187, Smith’s conviction appeal was dismissed. Smith’s and Turner’s sentence appeals were allowed in part.
• Crown Court at Newcastle. On 13 March 2003, both defendants were convicted of incitement to rape and incitement to indecently assault a female, and received longer-than-commensurate and, for the rape counts, extended sentences.