Since it was a necessary element of incitement that the person incited had to be capable of committing the primary crime, it was not an offence, in the instant case, where the appellant incited a boy victim under the age of 14 to commit a buggery, a crime that the victim could not commit because of an irrefutable presumption of law that existed at the time, namely that a boy under the age of 14 was incapable of sexual intercourse.

[2005] EWCA Crim 2827

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