Examining the incitement charges

While I argue elsewhere that the incitement to distribute charge is ill-founded, let us entertain the idea, take the charge seriously and examine a sequence of such an incitement......

Offences committed by the person subscribing Offences committed by Landslide

1   

 Pete has a great idea for a book... No offence No offence

2   

 He goes googling for material. No offence No offence

3   

 and finds Landslide No offence
  • Landslide has committed the offence of advertising that indecent photographs will be distributed or shown
  • It has also committed the offence of possessing with intent

4   

 Pete presumably sees some perviews that convince him that this is the site that will allow him to.. do his research... Does this constitute making? Landslide commits an offence of inciting Townshend... to do what though?

5   

 He completes - and submits - their subscription form... Townshend commits an offence of inciting Landslide to distribute child porn

Do Landslide and Townshend enter into a conspiracy at this point?

6   

 Pete enters the sites linked to by Landslide and does his research... If he actually downloaded any images, Townshend would commit an offence of making indecent photographs of children No offence

7   

 If he had downloaded any images.... Would he have committed an offence of possessing, over and above the making offence? No offence

The offences committed by Landslide at stage 4 are all incitement offences. The arise becuase they have placed the advert and the advert comes to the attention of a person it is hoped will be persuaded to sign up to Landslide. See Invicta Plastics Ltd v Clare [1976] Crim LR 131.

If the incitement to distribute offence is applicable here, then Landslide is inciting Townshend to:

In the case of Dr Paul Grout at Hull Crown Court on 21 April 2004, Judge David Bentley QC attempted to illustrate the incitement offence as follows:
If a drug user said to a drug dealer, "Sell me a bag of heroin", regardless of the reply he has immediately committed the crime of inciting the dealer to supply a class A drug. If the dealer says, "Yes", then they are both guilty of conspiracy and when the drug is handed over the dealer is then guilty of supplying the drug. It does not matter whether the dealer replies or what he says if he does, the incitement offence does not alter.
If Judge Bentley is correct and the drug user and the drug dealer enter into a conspiracy to supply heroin when the dealer says "OK", then both are liable to imprisonment for a term related to the gravity of the relevant offence.

If the dealer subsequently supplies heroin to the user, then

If we apply this to the Landslide incident we sketched above:

Offence Subscriber's sentence Landslide's sentence
Publishing an advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs or intends to do so. 0 10
Thereby inciting the reader of the advertisement.......
...... to incite Landslide to distribute indecent photographs of children 0 10*
...... to make indecent photographs of children 0 10*
...... to possess indecent photographs of children 0 5*
The reader replies to the advertisement and subcribes to Landslide thereby inciting Landslide to distribute indecent photographs of children 10* 0
Landslide processes the subscription and emails the reader a password, thereby the reader and Landslide enter into a conspiracy to distribute indecent photographs of children. 10 10
If Landslide were to distribute, it would be liable for punishment for distribution and the reader would be an accomplice 10 10
30 55
*The maximum sentence for these offences is actually at the court's discretion

However, Landslide never distribute.....













18 June 2004