The defendant had asked another man to supply him with pornography of 'girls not younger than 12 years'.
Unknown to him the man he had asked to supply the pornography was a police officer, and the defendant was charged with inciting a person to distribute indecent photographs of children.
At first instance the magistrates found that the police officer had no intention of supplying the respondent with child pornography and, following R v Curr, concluded that the defendant was not guilty of incitement.
On appeal by way of case stated, the Divisional Court ruled that for the purposes of the offence of incitement the intention of the person incited was irrelevant.
R. v. Curr (1968) 2 QB 944, where the Court of Appeal held that the trial judge had erred in not directing the jury to consider whether the people incited had known that what they were being asked to do was unlawful.
In DPP v Andrew Armstrong (2000) Crim. LR 379 the defendant was charged with inciting X to distribute indecent photographs of children contrary to common law. A police informer had been contacted by A asking to be supplied with pornography, but the informer told A that he did not deal in such material. Instead, the informer gave A the mobile telephone number of X, a police officer. Subsequently A telephoned X and asked for pornography. The Magistrate found no case to answer because, before a person could be convicted of inciting, it is necessary for "...the person to whom the incitement is made [to] have a parity of mens rea to the inciter". The Divisional Court considered that approach to be wrong because in their view, it was not necessary for the prosecutor to show that X intended to supply child pornography to Armstrong. Tuckey LJ. explained:
"the offence of incitement was committed when [X] was asked to commit the offence of supplying child pornography with the intention on the part of the respondent that in doing so he would be committing a criminal offence."
Commenting on Curr, Tuckey LJ. said of Fenton Atkinson's statement that:
"...it seems to me all the court is saying in that case is that what the appellant was doing was something short of asking the woman concerned to commit a criminal offence. He was not inciting her to commit an offence because the offence required her knowledge that she was committing an offence. There is nothing in the judgment to suggest that the court was making any general pronouncement about whether for the offence of incitement it is necessary to prove that not only the inciter but also the person incited had the mens rea to commit the full offence."