c) Public instigation to commit an offence

punishment is equal to or higher than the latter punishments, the former punishment shall be applied with an increase of one degree.

(c) Public instigation to commit an offence

Public instigation to commit an offence is a crime in itself even though the incitement has no effect. Prior to 1909, there was no such general provision in our Code. There was of course the special provision of Section 59, namely incitement to commit offences against the safety of the Government, and there was a provision in Ordinance XIV of 1889 when the incitement was made by means of printed matter. The general provision of Section 69 was added by Ordinance VIII of 1909 and it was drawn from the similar provisions of article 246 of the Italian Penal Code of 1889. It was considered very rightly that the incitement to commit an offence should be punishable not only when it is done by means of the Press but also when it is done publicly by other means. Any such incitement is a threat to public peace because this requires not only that actual injury to the rights of others should be repressed, but also so far as possible that such harm be prevented and obviated. And such prevention is secured by punishing even the mere solicitation or incitement independently from the effect thereof.

In dealing with the doctrine of complicity we saw that the instigation or incitement to commit an offence cannot constitute a form of complicity and be punished as such unless the offence instigated or incited is in fact committed or at least attempted: there cannot be complicity in an offence which has not been in fact committed or attempted. But we also saw that apart from any effect produced, such instigation or incitement is, in view of the special danger arising there from, made punishable as an offence "sui generis" in some cases.

We are now dealing precisely with one of such cases. The elements of this crime are:

i. Publicly instigating

ii. to commit an offence

Let us first examine what the law means by the word “publicly”. As this provision was modelled, as we have said, on the corresponding provision of the Italian Code, recourse may usefully be made to the commentatore of that Code. In proposing the

addition of this provision to our Code in the Council of Government, the Crown Advocate said: "By giving a literal reproduction of the article of the Italian Code, the provision which, if this amendment is passed, will be subject to the same interpretation which has been put on the corresponding provision of the Italian Code35 . "Con la parola pubblicamente - so says the Relazione Ministeriale on the project of 188736 , viene espressa come estremo essenziale comune a tali delitti, la circostanza della pubblicità da cui soltanto deriva un vero pericolo di disordine sociale. Sarebbe infatti contrario ad ogni principio di liberta stabilire sanzioni penali contro quelle manifestazioni che, avvenendo in privato, rimangono quasi nei limiti del pensiero”. In deciding whether this requirement of publicity is fulfilled, regard must be had not only to the nature of the place where the incitement takes place but also to the number of persons attending at the time. To incite to the commission of an offence even in a public square but at a time when there is only one person or a very few persons present, does not, according to the more commonly quoted text writers, constitute the crime under discussion. Conversely, if the incitement takes place in a private place, though there is a substantial number of persons present, the requirement of publicity likewise fails. To the public character of the place there must therefore be added the presence of such a crowd of people as can give rise to the apprehension and danger which the legislator intended to prevent in creating this crime. "La provocazione commessa in luogo privato non e punibile […] quella commessa in luogo pubblico e punibile a condizione che con la pubblicità del luogo si accompagni tale moltitudine da corrispondere al timore e al pericolo a cui il legislatore intese di ovviare creando il resto di pubblica provocazione a delinquere"37 .

The law does not specify the means with which the instigation may be committed. Such means are therefore all those which are calculated to affect the intended purpose and are consistent with the notion of publicity, such as for example speeches delivered at public meetings etc. If the instigation is made by means of printed matter then the special provisions of the Press Ordinance, in the appropriate cases, apply.

35 Debates Volume XXXIII, pg. 320 36 N.0X.W 37 Maino “Commento al Codice Penale Italiano”, art. 135, para. 746

The second element of this crime is that the instigation should have for its object the commission of a criminal offence. That is to say it must be referable to a determinate offence and be made with the intention that this should be committed. The instigation, therefore, must consist not in the mere propaganda of ideas or in the rousing of mere feelings or passions, however blameworthy, as for instance of hatred or hostility, but in urging the commission of an action or a material fact which constitutes a criminal offence38. “It is not sufficient, in order to constitute the crime in question, for a person to publicly suggest to another to do something without saying what it is, or for a person to incite another to commit an offence he may choose to commit: in that case the offence provided for by this provision would not arise. The offence will not arise unless the incitement is to commit a determinate offence"39 .

The law speaks of instigation to commit an offence; therefore, the crime subsists whether the offence instigated is a crime or contravention, the difference being in the "quantum" of the punishment. According to law:

i. If the offence instigated is a crime liable to a punishment higher than three years' imprisonment or hard labour, the punishment for the instigation is hard labour from two to five years.

ii. If the offence instigated is a crime liable to imprisonment or hard labour for a term not exceeding three years, the punishment for the instigation is hard labour or imprisonment up to two years.

iii. In the case of any other offence the punishment for the instigation is a fine (multa) or detention.

If the offence instigated is in fact committed or attempted, the instigation will not be punishable under the provision we are now discussing; it would fall under the general provisions relating to complicity. The object of this provision is to punish the public instigation "per se" independently of the effect which it may have on the audience to which it is addressed. If the instigation is followed by the commission or attempt of the

38 Maino, op. cit., art. 246, para. 1225; Pincherle “Manuale di Diritto Penale”, pg. 320, No. 625 39 Crown Advocate, Debated, loc. cit., pg. 322