in the behaviour constituting the offence, including any consequences which may result, and must know or believe (or possibly suspect) that those others will have the relevant mens rea. In R v Curr, the defendant allegedly incited women to commit offences under the Family Allowances Act 1945 but, because the prosecution did not prove that the women had the mens rea to constitute the offence, the conviction was quashed. Fenton Atkinson J explained that: In R v Whitehouse, a father was charged with inciting his fifteen-year-old daughter to have sexual intercourse with him. At this age, she would have been excused from liability for committing the offence of incest with her father. The conviction was quashed on appeal and Scarman LJ explained that: He continued: The Court of Appeal in R v Claydon (2005) EWCA Crim 2817 has repeated this criticism. Claydon had sexually abused the thirteen-year-old son of his partner in the 1980s, and was tried twenty years later on an indictment containing counts of sexual offences, including two counts of incitement to commit buggery. At that time, there was an irrebuttable presumption that a boy under the age of fourteen years was incapable of sexual intercourse (applying R v Waite (1892) 2 QBD 600–601 and R v Williams [1893] 1 QB 320–321). It was argued by the Crown that, although the boy could not in law have committed the act incited, it was nevertheless quite possible for the defendant to incite him. Having considered R v Whitehouse and R v Pickford, the Court of Appeal felt obliged to reject that argument. As Laws J said in Pickford, "it is a necessary element of the element of incitement that the person incited must be capable [by which he meant capable as a matter of law] of committing the primary crime." The Court agreed because the focus of the offence of inciting is solely on the acts and intention of the inciter while the intention of the person incited are not relevant when considering whether the offence of incitement has been committed. It further endorsed the views of Smith and Hogan (10th Edition at p 295) who criticised the decision in Curr on the basis that "...the real question should not have been not whether the women actually had the knowledge, but whether D believed they had." Furthermore, Smith (1994) said that "the court has confused the mens rea of