Kidnapping Consultation

The Law Commission
Consultation Paper No 200
SIMPLIFICATION OF CRIMINAL LAW:

KIDNAPPING
A Consultation Paper
ii
THE LAW COMMISSION – HOW WE CONSULT
About the Law Commission
The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting
the reform of the law.
The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, David
Hertzell, Professor David Ormerod and Frances Patterson QC. The Chief Executive is: Mark Ormerod CB.
Address for correspondence: Steel House, 11 Tothill Street, London SW1H 9LJ.
Topic of this consultation
This consultation paper deals with the offence of kidnapping. A summary of the main points can be found in
paras 1.6 to 1.16.
Scope of this consultation
The purpose of this consultation is to generate responses to our provisional proposals.
Geographical scope
The contents of this consultation paper refer to the law of England and Wales.
Impact assessment
An impact assessment is included.
Duration of the consultation
We invite responses from 27 September 2011 to 27 December 2011.
How to respond
Send your responses either –
By email to: kidnapping@lawcommission.gsi.gov.uk OR
By post to: Simon Tabbush at the address above

Tel: 020-3334-0273 / Fax: 020-3334-0201
If you send your comments by post, it would be helpful if, whenever possible, you could send them to us
electronically as well (for example, on CD or by email to the above address, in any commonly used format).
After the consultation

In the light of the responses we receive, we will decide our final recommendations and we will present them to
Parliament. We hope to publish our report in 2014. It will be for Parliament to decide whether to approve any
changes to the law.
Freedom of information: We will treat all responses as public documents. We may attribute comments and
publish a list of respondents’ names. If you wish to submit a confidential response, it is important to read our
Freedom of Information Statement on the next page.
Availability: You can download this consultation paper and the other documents free of charge from our
website at: http://www.lawcom.gov.uk.
iii
CODE OF PRACTICE ON CONSULTATION
THE SEVEN CONSULTATION CRITERIA
Criterion 1: When to consult

Formal consultation should take place at a stage when there is scope to influence the policy outcome.
Criterion 2: Duration of consultation exercise

Consultations should normally last for at least 12 weeks with consideration given to longer timescales
where feasible and sensible
Criterion 3: Clarity and scope of impact

Consultation documents should be clear about the consultation process, what is being proposed, the
scope to influence and the expected costs and benefits of the proposals.
Criterion 4: Accessibility of consultation exercises

Consultation exercises should be designed to be accessible to, and clearly targeted at, those people
the exercise is intended to reach.
Criterion 5: The burden of consultation

Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if
consultees’ buy-in to the process is to be obtained.
Criterion 6: Responsiveness of consultation exercises

Consultation responses should be analysed carefully and clear feedback should be provided to
participants following the consultation.
Criterion 7: Capacity to consult

Officials running consultations should seek guidance in how to run an effective consultation exercise
and share what they have learned from the experience.
CONSULTATION CO-ORDINATOR
The Law Commission’s Consultation Co-ordinator is Phil Hodgson.

 You are invited to send comments to the Consultation Co-ordinator about the extent to which the
criteria have been observed and any ways of improving the consultation process.
 Contact: Phil Hodgson, Consultation Co-ordinator, Law Commission, Steel House, 11 Tothill
Street, London SW1H 9LJ – Email: phil.hodgson@lawcommission.gsi.gov.uk
Full details of the Government’s Code of Practice on Consultation are available on the BIS
website at http://www.bis.gov.uk/policies/better-regulation/consultation-guidance.
Freedom of Information statement

Information provided in response to this consultation, including personal information, may be subject
to publication or disclosure in accordance with the access to information regimes (such as the
Freedom of Information Act 2000 and the Data Protection Act 1998 (DPA).
If you want information that you provide to be treated as confidential, please explain to us why you
regard the information as confidential. If we receive a request for disclosure of the information we
will take full account of your explanation, but we cannot give an assurance that confidentiality can
be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT
system will not, of itself, be regarded as binding on the Law Commission.
The Law Commission will process your personal data in accordance with the DPA and in most
circumstances this will mean that your personal data will not be disclosed to third parties.
iv
THE LAW COMMISSION
SIMPLIFICATION OF CRIMINAL LAW:

KIDNAPPING
CONTENTS
Paragraph Page
PART 1: INTRODUCTION 1
The general aim of the simplification project 1.3 1
Kidnapping 1.6 2
Structure of this paper 1.17 6
PART 2: CURRENT LAW OF KIDNAPPING 7

Introduction 2.1 7
Scale and context 2.1 7
The issues in brief 2.5 8
History 2.6 9
The principal modern cases 2.12 11
Ingredients of the offence 2.17 13
Taking or carrying away 2.18 13
Force or fraud 2.42 19
Without consent 2.59 22
Lawful excuse 2.103 34
Loss of liberty 2.113 37
Sending abroad 2.138 44
The fault element 2.141 44
Kidnapping and false imprisonment 2.151 48
False imprisonment 2.152 48
Relationship between kidnapping and false 2.166 53
imprisonment
PART 3: PROBLEMS IN THE LAW OF KIDNAPPING 56

Scheme of this Part 3.1 56
The question of timing: confinement following taking 3.3 56
When must the force or fraud be employed by D? 3.7 57
When must the loss of liberty occur? 3.13 58
Force or fraud and lack of consent 3.15 60
Children and the mentally incapacitated 3.17 60
The requirement of accompanying 3.25 62
v
Paragraph Page
Summary of the problems 3.33 64
Uncertainty 3.33 64
Over- and under-inclusiveness 3.35 65
PART 4: REFORMING THE OFFENCES 67

Introduction 4.1 67
Scheme of this Part 4.5 67
Elements of the offences 4.6 67
Detention and moving 4.7 68
The resulting harms 4.8 68
Issues common to all provisionally proposed models 4.18 70
Consent 4.18 70
Fault 4.33 73
Procedural issues 4.56 79
Models for the offence or offences 4.65 80
Model 1: one offence 4.66 81
Model 2: two offences, detention and abduction 4.77 83
Model 3: two offences, basic and aggravated 4.90 87
The choice 4.107 91
Model 1 4.107 91
Model 2 4.108 91
Model 3 4.109 92
PART 5: QUESTIONS FOR CONSULTATION 93

Consent, force and fraud 5.2 93
Fault 5.4 93
Triable either way 5.6 93
Models for the new offence or offences 5.7 93
APPENDIX A: PREVIOUS REFORM PROPOSALS 95
APPENDIX B: THE LAW IN OTHER COUNTRIES 98
APPENDIX C: OTHER ABDUCTION OFFENCES 118
APPENDIX D: IMPACT ASSESSMENT 125
vi
PART 1
INTRODUCTION
1.1 In its Tenth Programme the Law Commission embarked on a programme of
simplification of the criminal law, criminal evidence and procedure.1 Simplification
involves:
(1) giving the law a clearer structure;
(2) using more modern terminology;
(3) making the law in a given area more consistent with other closely allied
areas of law;
(4) making the law readily comprehensible to ordinary people by ensuring

that it embodies sound and sensible concepts of fairness.
1.2 The simplification project has now developed into a rolling scheme reviewing
several areas of the criminal law over successive Law Commission programmes.
The present review of kidnapping is the second instalment of the criminal law
simplification project, the first being the review of public nuisance and outraging
public decency.2 Both topics were proposed for review in our Tenth Programme
of Law Reform.3 The Eleventh Programme of Law Reform includes a project to
simplify misconduct in public office.4
The general aim of the simplification project

1.3 Our simplification project does not primarily aim at codification, although it may
involve codification of particular topics or make future codification easier. As
explained in the Tenth Programme:
The Commission continues to support the objective of codifying the

law, and will continue to codify where it can, but considers that it
needs to redefine its approach to make codification more achievable.
This project is an important component of that redefinition. We
believe that simplification of the criminal law is a necessary step in
furtherance of its codification.5
1
Tenth Programme of Law Reform (Law Com No 311), para 2.24 and following.
2
“Simplification of Criminal Law: Public Nuisance and Outraging Public Decency”, (2010)
Law Com Consultation Paper No 193.
3
Tenth Programme of Law Reform (Law Com No 311), para 2.32 (nuisance) and para 2.33
(kidnapping).
4
Eleventh Programme of Law Reform (Law Com No 330), paras 2.57 to 2.60.
5
Tenth Programme of Law Reform (Law Com No 311), para 2.24.
1
1.4 Simplification might commonly result in seemingly modest legal changes. It may
recommend that a common law offence be restated in statutory form, thus
achieving partial codification. Otherwise, it will be concerned with removing clear
injustices or anomalies. It may even involve recommending the abolition of an
offence if it has become redundant. The practical importance of the changes
made by simplification should not be underestimated.
1.5 In spite of the fact that a simplification project has quite modest aims, it would not
be undertaken unless there was a strong reason for changing the law in the way
recommended. We believe that there will almost always be such a reason to
introduce a simplified law if it is not only clearer and easier for judges to explain
and (where relevant) for juries to understand, but also fairer by targeting only
blameworthy behaviour.
Kidnapping
Background
1.6 In our Tenth Programme we stated:
The lack of a compendious offence to cover ransom kidnappings

means that the prosecution is obliged to include a number of separate
counts in the indictment, for example, false imprisonment, kidnapping,
blackmail and threats to kill. This means that, in summing up to a jury,
a judge has to give directions in relation to a range of different
offences. In addition, there are particular anomalies in the way that
the Firearms Act 1968 and the defence of duress apply to the
different substantive offences. Arguably, it would be far better if in
ransom kidnapping cases, which are not unusual, the prosecution
could proceed by way of a compendious offence. If so, this would be
an example of the law being simplified by the creation of a new
offence to replace, in a particular context, an array of common law
and statutory offences. However, those offences would not be
abolished or repealed because they have an important role to play in
other contexts.6
1.7 Kidnapping, in its widest sense, may involve any of the following offences.
(1) False imprisonment at common law.7
(2) Kidnapping at common law.8
(3) Child abduction under section 1 or 2 of the Child Abduction Act 1984.9
(4) Hostage taking under the Taking of Hostages Act 1982.10
6
Tenth Programme of Law Reform (Law Com No 311), para 2.33.
7
Paras 2.152 to 2.164 below.
8
Para 2.6 and following, below.
9
Paras C.1 to C.5, below.
10
Para C.6 to C.9, below.
2
(5) People trafficking under sections 57 to 60 of the Sexual Offences Act
2003 and section 4 of the Asylum and Immigration (Treatment of
Claimants etc) Act 2004.11
In the case of a kidnapping for ransom, there may also be:
(6) blackmail under section 21 of the Theft Act 1968;
(7) threats to kill under section 16 of the Offences Against the Person Act
1861.
1.8 We have rejected the need for a new offence of ransom kidnapping as tentatively
suggested in our Tenth Programme, as there is no distinct pressure for reform of
that aspect of the offence and such a reform would not significantly simplify
charging decisions. We do not consider that there is a strong case for reform
simply because the present kidnapping offence often overlaps with other
offences, such as blackmail. It is a fact of life that a given instance of seriously
criminal behaviour may involve several different harms or wrongs and therefore
justify charges for more than one offence. However, we remain convinced that
there are flaws and uncertainties in the common law offence of kidnapping which
justify reform.
Definition of the offence

1.9 Kidnapping is defined at common law as the taking or carrying away of one
person by another, by force or fraud, without the consent of the person taken or
carried away and without lawful excuse. It must involve an attack on or loss of
that person’s liberty.12
1.10 “Taking or carrying away” includes any means of causing one person to
accompany another from one place to another. On one view, kidnapping could be
conceived as false imprisonment in motion, though the relationship between the
two offences is not altogether clear.
Problems
1.11 The problems in definition and application of the offence of kidnapping, as
defined, include the following.
(1) The offence is over-inclusive in some respects. It is defined in extremely

wide terms with the potential to criminalise very trivial conduct. For
example, read literally, it would apply to a case in which D (the alleged
kidnapper) tricked V (the victim) into accompanying him on a journey by
some trivial deception and in which V was returned safely to their starting
point. To a large extent it overlaps with other offences, such as false
imprisonment and child abduction. The problems of over-inclusiveness
and overlap are only avoided by prosecutorial discretion.
11
Para C.10 and following, below.
12
D [1984] AC 778.
3
(2) In one respect, however, the offence is under-inclusive: the cumulative
requirements of force or fraud and lack of consent exclude some
instances that ought to be criminal. The most striking examples would be
where D, by some enticement falling short of a fraud, takes or carries
away V, who is a child or mentally incapacitated person. Although in such
a case there might be a lack of consent because of V’s lack of capacity,
there is no force or fraud, and the offence is not committed.
(3) The definition lacks precision and has fluctuated through a series of
recent cases in the Court of Appeal. In particular, it is not clear whether
the conduct of taking or carrying V away must simultaneously constitute
the deprivation of liberty of V, or whether it is sufficient that V is deprived
of liberty at the conclusion of the journey.13
1.12 The second and third problems may coincide, as for example in a case where a
young child or a person with a mental incapacity is invited to a house and then
detained while ransom demands are made.14 This is, on any normal view,
kidnapping. However, it may not amount to that offence as at present defined,
first because no force or fraud was used to take V away, and secondly (on one
view) because there was no loss of liberty until after the taking and carrying away
has come to an end.15 This, if correct, is a serious defect, calling into question the
usefulness of the offence for the very class of case one would most expect to be
covered. We recognise of course that if such a case were to arise the prosecution
authorities could meet the occasion by bringing charges of false imprisonment
and blackmail, but that is not a satisfactory position with such serious
wrongdoing.
1.13 As stated above, the scope of kidnapping includes some fairly minor forms of
misbehaviour. Taking kidnapping and false imprisonment together, some 20% of
sentences are for 6 months or less. These minor cases could be suitable for trial
in a magistrates’ court, but at present both offences are triable on indictment only.
The prosecution must therefore choose between full Crown Court trial and
dropping the case.
Possible reforms
1.14 It would be possible to effect piecemeal reforms to address the particular
problems identified and no more. However, these problems also raise wider
issues about the basis for the offence. For this reason, and for the sake of
possible future codification, we have undertaken a more principled review of the
offences of kidnapping and false imprisonment, with a view to replacing them by
statute.
1.15 Briefly, we provisionally conclude as follows.
13
Para 2.123 below.
14
15
A further restriction is that the offence is not committed unless D accompanies V on the
journey: para 2.26 and following.
4
(1) Kidnapping, and probably false imprisonment, should be replaced by
statutory offences. There are many forms such statutory offences might
take. We offer three possible models for consultation.
(a) A single offence of intentional or reckless deprivation of liberty

without consent and without lawful excuse.
(b) Separate offences of unlawful detention and unlawful abduction.
(c) A basic offence of intentional or reckless abduction or detention

and an aggravated one of detention or abduction with intent to
perpetrate one of a number of specified additional harms (for
example inflicting harm, or making ransom demands).
These models are examined in full in Part 4 and set out again in Part 5.
Common to these models are the following points of definition:
(2) An absence of consent to the conduct (abduction or detention) should be

a core element of the offence. Force or fraud should not constitute
separate elements of the offence, but would be relevant as evidence of
lack of consent.
(3) Defences such as duress, self-defence, lawful arrest and parental rights
should apply as under the present law.
(4) For the required fault elements, we propose that the detention or
abduction must be either intentional or reckless, and that recklessness
should bear its current subjective definition, namely that the defendant
was aware of the risk of his or her actions and unreasonably proceeded
with them.
(5) There should be no need for the abductor to accompany the victim,
provided that the victim is imprisoned or confined at some stage of the
operation or otherwise suffers a loss of liberty.
1.16 The question in paragraph 1.15(1), concerning whether there should be one or
two offences and how they should be distinguished, is left open to consultation.
We also leave open the question whether an honest but mistaken belief in
consent should excuse the accused, or whether there should be a requirement
that the belief as to consent should be reasonable. Finally we raise the question
whether one or more of the offences created should be made triable either way
(at present both kidnapping and false imprisonment can be tried only in the
Crown Court).
5
Structure of this paper
1.17 Part 2 provides a detailed account of the current law of kidnapping and a brief
account of the offence of false imprisonment. Part 3 discusses the problems and
uncertainties with kidnapping, in particular the difficulties presented by the way
the different ingredients in the definition of the offence apply in combination. Part
4 considers the justification of the offences of false imprisonment and kidnapping
and discusses the possible solutions, including a reformed offence of kidnapping.
Part 5 summarises the proposed models of offence offered for consultation and
sets out the further questions for consultation. Appendix A describes previous law
reform proposals. Appendix B describes the law in some other countries.
Appendix C gives a brief account of the related statutory offences of child
abduction, hostage taking and people trafficking. Although a full codification
exercise would also involve examination of those offences, that option is not
within our narrow terms of reference, which are to simplify the common law
offence of kidnapping.
1.18 We are grateful to the members of the Advisory Group,16 who helped us refine
the options for reform and suggested many valuable arguments and examples for
this paper.
16
Peter Burt, Crown Prosecution Service; Antony Edwards, solicitor; Ian Kelsey, solicitor; Dr
Tim Moloney QC, Tooks Chambers; Jonathan Rogers, University College London;
Professor William Wilson, Queen Mary College London; HH Judge Martyn Zeidman QC,
Snaresbrook Crown Court.
6
PART 2
CURRENT LAW OF KIDNAPPING
INTRODUCTION
Scale and context

2.1 In the leading case on kidnapping, D,1 the House of Lords defined kidnapping as
an attack on and infringement of the personal liberty of an individual, consisting of
the taking or carrying away of one person by another by force or by fraud, without
the consent of the person so taken or carried away and without lawful excuse.2 It
is sometimes described as an aggravated form of false imprisonment.3 False
imprisonment is also a common law offence and includes every wrongful
deprivation of a person’s liberty. Kidnapping is considered the more serious
offence of the two, but both are common law offences carrying unlimited powers
of imprisonment, and both are triable only on indictment.
2.2 There are generally 600 to 750 cases per year in which a person charged with
kidnapping appears or is brought before a magistrates’ court,4 of which between
100 and 150 result in conviction in the Crown Court.5 Over the period from 2000
to 2010 inclusive, 10% of those sentenced were given a non-custodial sentence,
5% were given a suspended sentence, 2% were sentenced to immediate
imprisonment of 6 months or less, 37% were sentenced to more than 6 months
up to 3 years, another 19% were sentenced to over 3 up to 5 years, another 16%
to over 6 up to 10 years and the remaining 11% to over 10 years.6
2.3 For false imprisonment, the corresponding figures are as follows. 1,100 to 1,200
cases per year reach a magistrates’ court,7 of which between 200 and 250 result
in conviction in the Crown Court.8 Over the period from 2000 to 2010 inclusive,
24% of those sentenced were given a non-custodial sentence, 7% were given a
suspended sentence, 3% were sentenced to immediate imprisonment of 6
months or less, 41% were sentenced to more than 6 months up to 3 years, 12%
were sentenced to over 3 up to 5 years, 7% to over 6 up to 10 years and the
remaining 7% to 10 years or more.9
1
[1984] AC 778.
2
The passage is set out in full at para 2.12 below.
3
4
Figures supplied by Crown Prosecution Service. These figures represent the number of
charges brought, rather than the number of individuals charged.
5
Figures supplied by Sentencing Council. These figures represent the number of individuals
sentenced, and are therefore not directly comparable with the preceding ones.
6
Figures supplied by Sentencing Council.
7
Figures supplied by Crown Prosecution Service. These figures represent the number of
charges brought, rather than the number of individuals charged.
8
Figures supplied by Sentencing Council. These figures represent the number of individuals
sentenced, and are therefore not directly comparable with the preceding ones.
9
Figures supplied by Sentencing Council: in the case of false imprisonment there are
rounding errors.
7
2.4 Very roughly, then, sentences for kidnapping tend to be 30% to 40% higher than
those for false imprisonment. For the two offences taken together, 21% of all
sentences are either non-custodial or for immediate imprisonment of 6 months or
less, and would therefore have fallen within the sentencing powers of a
magistrates’ court if that court had jurisdiction.
The issues in brief

2.5 The scheme of this Part is as follows.
(1) First, we give a brief account of the history of the offence and of the
recent cases.
(2) Then we consider in turn each of the ingredients specified in the House
of Lords’ definition, namely
(a) taking/carrying away,
(b) force or fraud,
(c) lack of consent,
(d) lack of lawful excuse, and
(e) attack on liberty.
For each of these ingredients we consider two fundamental issues: its

place and function within the definition (context) and its meaning
(content).
(3) Then we consider the fault element of the offence.
(4) Finally we give an account of the offence of false imprisonment and

consider the relationship between it and kidnapping.
8
History
2.6 Kidnapping did not emerge as an offence separate from false imprisonment until
the 1680s, when a trio of cases was decided concerning the abduction and
shipping of young boys to the New World to work as servants.10 This appears to
have been a prevalent phenomenon at the time,11 and the offence seems to have
been created by the King’s Bench in response. One indication of the character of
the offence is the fact that two out of the three cases were prosecuted by way of
information rather than indictment: as informations were brought directly by the
Attorney General rather than by a local grand jury, they were especially suitable
for offences of a political or public order character. Selling people beyond the
seas was criminal as early as Anglo-Saxon times;12 but the earlier cases cited in
Dassigney concerned either false imprisonment or civil proceedings for the
liberation of the prisoner, and do not attest the existence of kidnapping as a
separate offence.
2.7 For a considerable time the legal definition of kidnapping seems to have been
restricted to sending people abroad as in the three cases mentioned.13 A
separate offence appears to have been recognised around the same time,
typically involving the abduction and detention of a female minor for sexual
purposes: this was also prosecuted by information. The leading case was Lord
Grey,14 concerning Lord Grey’s abduction of Lady Henrietta Berkeley, his wife’s
younger sister, who was under 18, by persuading her to leave her father’s house
and live with Lord Grey in a series of places. The wording of the indictment in that
case was very different from that used in false imprisonment cases, and read, as
to its essential words, “by force and arms ... without the leave and against the will
of [her father] … did take, lead and carry away”.
2.8 East, writing in 1803, appears to have been the first to suggest that there is a
single offence of “kidnapping” in a wider sense, covering all instances of taking
and carrying away or secreting, and that this single offence is an aggravated form
of false imprisonment. In his A Treatise of the Pleas of the Crown,15 he gives both
the wider and the narrower definition. First he says:
The most aggravated species of false imprisonment is the stealing

and carrying away, or secreting of any person, sometimes called
kidnapping, which is an offence at common law, punishable by fine,
imprisonment, and pillory.
10
Dassigney (1683) Raym 474, 83 ER 247 and 2 Show 221, 89 ER 902; Wilmore (1682)
Skinn 47, 90 ER 23, 8 St Tr 1347; Bailey (1685) Comb 10, 90 ER 312.
11
Hendy-Freegard [2007] EWCA Crim 1236, [2008] QB 57 at [32]; D Napier, “Detention
Offences at Common Law”, in P Glazebrook (ed), Reshaping the Criminal Law (1978), pp
194 to 195. See also Swimmer (1753) Sayer 103, 96 ER 818, where a parish officer who
bound three children to serve as apprentices in foreign parts was accused of kidnapping.
The prosecution was dropped on the defendant’s undertaking to return the children.
12
F Pollock and F W Maitland, The History of English Law before the Time of Edward I (2nd
ed 1898) vol 1, pp 35-36.
13
14
(1683) 2 Show KB 218, 89 ER 900, 9 St Tr 127.
15
East, A Treatise of the Pleas of the Crown (1st ed 1803) p 429; (2nd ed 1806) p 429.
9
This wide proposition is supported by a marginal note giving a citation for Lord
Grey’s case. Later in the same passage he says:
The forcible abduction or stealing away of any person is greatly

aggravated by sending them away from their own country into
another, properly called kidnapping, though the punishment at
common law is no more than fine, imprisonment, and pillory.
2.9 The wide definition is the basis of that given in later textbooks. Some of these,16
however, add the qualification that, in the case of a child, the taking must be
against the will of the parents and guardians rather than the child’s own will. This
qualification, which appears to be based on Lord Grey’s case,17 has been
removed by later cases and does not appear in current editions of those
textbooks.18
2.10 Writing before the House of Lords provided the definition in D, Glanville Williams,
in his Textbook of Criminal Law,19 defined the offence in the following terms:
What about kidnapping?

There is a common law offence going by this name, which is
committed by carrying a person away without his consent. It is
supposed to be a particularly serious form of false imprisonment, but
over the years the courts have, in familiar fashion, attenuated the
circumstances of aggravation, so that now the only distinguishing
feature is that the imprisonment, to amount to an aggravation, must
involve either the secreting of the victim or carrying him away from
the place where he wishes to be.20 It may be either by force or by the
threat of force. (As was said before,21 the courts may perhaps extend
it to a taking by deception.)
If an adult takes away a juvenile with his consent but without the
consent of his parents, is this kidnapping?
No, according to a ruling of Lawson J.22 But it can be one of a number
of statutory offences …
2.11 For Glanville Williams, kidnapping is false imprisonment, aggravated by secreting

or carrying away. The current definition, as given by Lord Brandon in D, reverses
the emphasis, as well as removing the mention of secreting. In D, as interpreted
16
See para 2.93 below.
17
See n 14 above.
18
The issue is discussed in full at para 2.89 and following.
19
G Williams, Textbook of Criminal Law (2nd ed 1983) p 219, cited in Hendy-Freegard [2007]
EWCA Crim 1236, [2008] QB 57 para 33 (which mistakenly gives the year as 1953,
presumably confusing Glanville Williams’ Textbook of Criminal Law with his General Part).
20
Italics in original.
21
G Williams, Textbook of Criminal Law (2nd ed 1983) p 218, see para 2.160 below.
22
Hale [1974] QB 819.
10
by Hendy-Freegard,23 kidnapping is taking or carrying away, in such a way as to
attack or infringe personal liberty.
The principal modern cases
D24
The defendant took the victim, his daughter, out of the custody of her
mother, once when she was aged 2 and once when she was aged 5:
in both cases the taking was by force, in the sense that the child was
physically carried away, in the second instance after being wrenched
from her mother’s arms.
2.12 The main issue in the case was how the offence of kidnapping applies to the
abduction of children, and this will be discussed in full below.25 In the course of
his judgment, however, Lord Brandon gave a full definition of the offence in
general, which forms the basis of much of the discussion in this part.
From this wide body of authority six matters relating to the offence of
kidnapping clearly emerge. First, the nature of the offence is an attack
on and infringement of the personal liberty of an individual. Secondly,
the offence contains four ingredients as follows: (1) the taking or
carrying away of one person by another; (2) by force or by fraud;
(3) without the consent of the person so taken or carried away;
and (4) without lawful excuse.26 Thirdly, until the comparatively
recent abolition by statute of the division of criminal offences into the
two categories of felonies and misdemeanours, the offence of
kidnapping was categorised by the common law as a misdemeanour
only. Fourthly, despite that, kidnapping was always regarded, by
reason of its nature, as a grave and (to use the language of an earlier
age) heinous offence. Fifthly, in earlier days, the offence contained a
further ingredient, namely, that the taking or carrying away should be
from a place within the jurisdiction to another place outside it; this
further ingredient has, however, long been obsolete, and forms no
necessary part of the offence to-day.27 Sixthly, the offence was in
former days described not merely as taking or carrying away a person
but further or alternatively as secreting him; this element of secretion
has, however, also become obsolete, so that, although it may be
present in a particular case, it adds nothing to the basic ingredient of
taking or carrying away. 28
23
Para 2.16 below.
24
[1984] AC 778.
25
Para 2.88 and following.
26
Emphasis ours.
27
This ingredient is discussed at para 2.138 and following, below.
28
[1984] AC 778, 800.
11
Wellard29
The defendant pretended to be a police officer searching for drugs,
and persuaded the victim to accompany him 100 yards and get in his
car so that he could take her home. In the event the victim’s friends
arrived and she was not taken anywhere in the car.
2.13 It was held that the element of “taking and carrying away” did not have to involve
physically moving the victim. It was enough if the defendant’s conduct caused the
victim to feel that she was compelled to submit to his instructions and move a
comparatively short distance from one place to another: the 100 yard walk,
procured by deception, was sufficient to amount to “carrying away” by fraud. This
was a kidnapping.
Greenhalgh30
The defendant broke into a cottage with a crossbow and threatened
to burn it down. The householder suggested, as the lesser of two
evils, that he should drive the defendant to another place. The
journey took place, with the defendant still threatening the
householder with the crossbow and telling him where to drive.31
2.14 The issue in the case was whether the defendant was guilty of kidnapping or
whether the fact that the householder had suggested the drive meant that the
“taking and carrying away” was voluntary (it was common ground that there was
at least false imprisonment). The Court of Appeal held that the jury had been
entitled to find that the householder’s cooperation did not amount to consent to
being taken and carried away.
In our judgment, although apparently the authorities do not yet

expressly say so, where the issue for consideration in a kidnapping
case is whether the victim consented, consistently with the general
pattern in the criminal law consent induced by fear or force does not
amount to true consent. This ingredient of the offence of kidnapping is
established if what may loosely be described as consent amounts in
reality to no more than submission.32
Cort33
The defendant was convicted of kidnapping because he had induced
a number of women to accept lifts in his car by falsely representing
that there was no bus service on the desired route.
29
[1978] 1 WLR 921.
30
[2001] EWCA Crim 1367.
31
There was in fact a conflict of evidence about who suggested the drive first. The judgment
assumed the account more favourable to the defendant in order to hold that, even on that
version of events, kidnapping had been committed.
32
[2001] EWCA Crim 1367 at [34].
33
[2003] EWCA Crim 2149, [2004] QB 388.
12
2.15 It was held that the deception he practised on the women itself negated their
consent, as they would not have consented to the taking and carrying away but
for the deception. The decision was controversial for two reasons. First, this
conduct was held to be sufficient to constitute kidnapping even though there was
no element of imprisonment: it was accepted that one woman who asked to get
out was allowed to, and none of them were taken anywhere except their intended
destinations. Secondly, Cort held that for kidnapping consent is negated by any
deception on any subject, provided that the victim would not have allowed the
taking away but for the deception. In contrast, in cases of rape (as then defined),
deception only negated consent if it concerned the identity of the perpetrator or
the nature of the act.34 In other words, according to Cort, the “consent” in
kidnapping has to be to the “taking-away-by-force-or-fraud”, not just to the
“taking-away”; which is of course a virtual logical impossibility.35
Hendy-Freegard36
The defendant pretended to be a secret service agent and induced
various people to travel round the country in his absence and stay in
places of his choosing.
2.16 It was held that this was not kidnapping, as there was no deprivation of liberty,
and the defendant was not with the victims at the time. Cort was held to have
been wrongly decided because, although in that case the women were induced to
enter the car by fraud and without their (informed and valid) consent, they did not
feel physically or legally compelled to enter the car, and were not deprived of
their liberty once there. The uncertainty of the scope of the offence, as shown by
the radical contrast between Cort and Hendy-Freegard, is in itself a reason for
statutory reform. Take the following example, as mentioned in Hendy-Freegard:
D induces V to enter his car by pretending to be a licensed mini-cab driver. V
enters the car and is taken to the destination of her choice and is charged an
appropriate fare. According to Cort this is kidnapping; according to Hendy-
Freegard there is no kidnapping.
INGREDIENTS OF THE OFFENCE

2.17 Lord Brandon’s definition isolates five ingredients in the offence: taking or
carrying away; force or fraud; absence of consent; absence of lawful excuse;
attack on or infringement of liberty. A further ingredient, that of sending a person
abroad, was relevant to earlier forms of the offence but is now of no special
significance.
Taking or carrying away
Role in the offence

2.18 Lord Brandon describes the offence as consisting of “the taking or carrying away
of one person by another”. The taking or carrying away is the principal conduct
element of the offence.
34
On the then state of the law: the test has since been altered by Sexual Offences Act 2003
ss 74 to 76.
35
[2003] EWCA Crim 2149, [2004] QB 388 at [19].
36
[2007] EWCA Crim 1236, [2008] QB 57; discussed [2007] Criminal Law Review 986.
13
Meaning
2.19 The formulation “taking or carrying away” raises two questions of scope.
(1) Is it always necessary that V (the victim) be made to go from one place to
another, and if so how far? Or is a stationary “taking” (capture) ever
sufficient to constitute kidnapping?
(2) Is every method of causing V to go from one place to another included,

or must D (the defendant) “take” V in the sense of compelling V to
accompany D there?
IS MOVING NECESSARY?
2.20 This first question arises from Lord Brandon’s apparently novel formulation in D37
where his lordship spoke of “taking or carrying away”. Previous authorities,
including the Court of Appeal in D38 and the arguments of counsel in the House of
Lords, always spoke of “taking and carrying away” or “stealing and carrying
away”. This formula, as used in the older kidnapping cases, appears to use “take”
in its old sense of capturing or reducing to possession.39
2.21 If we continue to understand “take” in this sense, Lord Brandon’s formula

represents a radical extension of the offence because it becomes sufficient that
there is a stationary “taking”. This goes wider even than the old “secreting” form
of kidnapping, and becomes hard to distinguish from false imprisonment.
2.22 Despite the language used in D, the consensus appears to be, and we agree,
that some degree of movement remains necessary for the offence of
kidnapping. This was Glanville Williams’ view in an article written well after D.40
It is also the position taken in the Canadian cases of Oakley41 and Karpenko,
Mayo, George and Mayo;42 and while the issue is not raised specifically in the
English cases, the facts of every reported case that we have found involved the
moving of V.
37
[1984] AC 778.
38
[1984] 2 WLR 112.
39
The description of the offence as taking and carrying away appears to be derived from the
form of the offence which concerned the abduction of a minor: it is uncertain whether it was
used for the sending abroad form. The same phrase was used in the old common law
offence of larceny. In both offences “take” represented Latin cepit, which had the
unambiguous sense of seize or capture.
40
G Williams, “Can babies be kidnapped?” [1989] Criminal Law Review 472, n 9.
41
Appendix B para B.26.
42
14
2.23 The requirement for some movement of V can be reconciled with Lord Brandon’s
formulation in D if it is accepted that his lordship was using “take” in its current
sense, in which one speaks of taking a person to a place or taking them away.
“Take” and “carry” could then be seen as near-synonyms, with the “or” being
used only by way of explanation; or one could interpret “carrying” to mean
physically transporting V and “taking” to mean inducing V to move him or
herself.43
2.24 Accepting that movement is required as part of the offence, the supplementary
question arises whether there is any minimum distance through which V must be
moved. Glanville Williams, in his Textbook of Criminal Law,44 says:
Wellard shows that carrying the victim away for 100 yards is enough.
Lawton LJ seems to have regarded it as for the jury to decide whether
the transporting of the victim went sufficiently far to be accounted a
carrying away. But surely there must be some rule of law on the
subject. In the old law of larceny, the least movement of an article
constituted a carrying away, but that can hardly apply to kidnapping.
2.25 We have found no English authority setting a quantitative minimum distance

through which V must have moved for the requirement of “carrying away” to be
satisfied. In principle there could be a “de minimis” rule excluding the most trivial
cases, for example simply carrying V across a room. Such cases will often be
excluded for other reasons, for example because V was not deprived of liberty.
The de minimis issue has certainly arisen in the United States, where criticisms
have been made of the use of kidnapping charges based on V being “moved” a
very short distance as part of a fundamentally different crime such as rape or
burglary.45 For this reason, the Model Criminal Code now requires the victim to
be moved “from his place of residence or business, or a substantial distance from
the vicinity where he is found”.46
IS UNACCOMPANIED MOVEMENT BY THE VICTIM SUFFICIENT?

2.26 The use of the words “take” (even in its broader modern sense) and “carry”, as
opposed to other possibilities such as “move” or “send”, appears to carry the
implication that D accompanies V; or rather, compels47 V to accompany D.
2.27 Hendy-Freegard48 provides clear recent authority that “taking or carrying away”
includes a requirement that the kidnapper accompany the victim. This was one of
the grounds on which the court in Hendy-Freegard disagreed with Cort.49
43
A further possibility is that, though the offence properly requires both taking and carrying
away, Lord Brandon’s use of “or” is an indication that it is sufficient for either the taking or
the carrying to be by force or fraud.
44
G Williams, Textbook of Criminal Law (2nd ed 1983) p 219, footnote.
45
46
47
The issue of compulsion is addressed under the requirements of force or fraud and of lack
of consent below. In describing the existing law, there is therefore no need to consider
whether, even were it not for these requirements, compulsion would be implied in the word
“take”. Such a question may become relevant in the formulation of a new offence.
15
The fact that it is difficult on the facts of Cort to identify the deprivation
of liberty that, on previous authorities, was an essential ingredient of
kidnapping does not justify the further extension of the law for which
Mr Carey [counsel for the Crown] has contended. He persuaded the
judge and sought to persuade us that the offence of kidnapping will
be committed if a defendant, by a fraudulent misrepresentation,
induces a person to go from one place to another, even if that person
is unaccompanied. In such circumstances there is nothing that is
capable of constituting a “taking and carrying away”. Even less is it
possible to identify any deprivation of liberty. Mr Carey accepted that,
if his submission was correct, the bigamist who induces a woman to
travel to the church for a wedding ceremony might be guilty not
merely of bigamy but also of kidnapping. Such a submission
transforms the offence of kidnapping in a manner that cannot be
justified, even on the basis of the decision in Cort.
For these reasons the judge was wrong to rule and to direct the jury
that causing a person by a fraudulent misrepresentation, to move
from one place to another, unaccompanied by the defendant, of itself
sufficed to constitute the element of “taking and carrying away” in the
offence of kidnapping. Such a movement cannot of itself constitute
either taking and carrying away or deprivation of liberty.50
2.28 Smith and Hogan51 restates the requirement that D (the kidnapper) must
accompany V (the victim), and defends it on the ground that, otherwise, sending
a person on a fool’s errand as a practical joke would be kidnapping.52
2.29 The requirement that D accompanies V does not appear to have formed part of
the original kidnapping offence, of sending people abroad. In Swimmer,53 for
example, D simply bound V as an apprentice to serve in the Americas: there is no
mention in the report of D or an agent of D accompanying V on any part of the
journey to the port, let alone to the Americas. Nor was the loss of liberty during
the journey mentioned as the gist of the offence. One should not however attach
too much weight to these omissions, as the report is extremely short. The modern
cases do not distinguish the sending abroad form of the offence from other forms,
and it is doubtful if it now forms an exception to the requirement of
accompanying.
48
[2007] EWCA Crim 1236, [2008] QB 57.
49
[2003] EWCA Crim 2149, [2004] QB 388.
50
Hendy-Freegard [2007] EWCA Crim 1236, [2008] QB 57 at [57] and [58].
51
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011).
52
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011) para 17.12.2, second paragraph
from bottom of page. This argument is discussed below at para 3.25 and following.
53
(1753) Sayer 103, 96 ER 818.
16
2.30 In conclusion, a requirement of accompanying clearly forms part of the “carrying
away” element of kidnapping in existing law. Whether it serves a useful purpose
is discussed below.54
Secreting and detaining

2.31 Having established that there must be movement of V accompanied by D, a
further question arises because, according to some older authorities, one form of
kidnapping existed for cases of “secreting.” This meant more than simple
detention, as otherwise kidnapping would have been indistinguishable from false
imprisonment: the distinguishing factor was that of keeping V in concealment.
2.32 It is clear that this imposes no requirement that the taking or carrying away must
be clandestine. Nor is it necessary for the offence of kidnapping for D to secrete
and detain V at the conclusion of their travel. In Reid55 it was held that there is no
necessary element of concealment or secreting of the person kidnapped, as the
offence consists of stealing and carrying away, or secreting.
2.33 The converse question is whether it is sufficient to constitute kidnapping that D

has detained V without consent provided that the detention takes the form of
“secreting”. In D,56 Lord Brandon rejected that interpretation, holding that
secreting, even as one form of the offence among others, adds nothing to the
definition:
… the offence was in former days described not merely as taking or

carrying away a person but further or alternatively as secreting him;
this element of secretion has, however, also become obsolete, so
that, although it may be present in a particular case, it adds nothing to
the basic ingredient of taking or carrying away.
This gives further support for the view, already argued for,57 that every
kidnapping must involve the moving of V.
2.34 In brief, Reid58 holds that kidnapping is complete as soon as V is moved: there is
no necessary requirement to prove moving AND secreting. As we have seen,
kidnapping necessarily involves moving V; so it is clear that the offence is not
defined in terms of moving OR secreting. It would appear to follow that secreting
is simply irrelevant as a definitional element of the offence, although it may, of
course, be of evidential significance.
54
For our views on accompanying, see para 3.25 and following, below.
55
[1973] QB 299.
56
[1984] AC 778, 800 (para 2.12 above).
57
Para 2.55 above.
58
[1973] 1 QB 299.
17
2.35 One effect of this is that, in a case where V is taken away to a destination and
detained there, the kidnapping ends when the destination is reached. The
detention of V, which could formerly have constituted secreting, forms no part of
the conduct element of the offence, though, as argued below,59 it may be relevant
as a consequence element.
2.36 Defining kidnapping without reference to secreting produces a much simpler

offence, but the courts’ justifications for rejecting such an element are not
persuasive. Moreover, the result is that the legal definition of kidnapping does not
accord with popular understanding.
2.37 The argument for disregarding secreting is that the offence is “complete” as soon
as there is taking or carrying away: later confinement (in secret or not) is
therefore irrelevant. This however confuses two senses in which an offence can
be said to be complete. In one sense, an offence is “complete” as soon as
sufficient conduct has occurred for the offence to have been committed so that a
prosecution could successfully ensue: in battery, the first touch; in kidnapping,
the first step of the journey. Some offences, however, involve a continuing
process: battery is committed with the first touch but goes on being committed
until the assailant desists. In this sense, then, the offence is not “complete” until it
has stopped being committed.
2.38 Following the cases of Cort60 and Wellard,61 the “taking or carrying away”
includes the whole continuing process of V moving or being moved from one
place to another, and the offence goes on being committed throughout. It would
be perfectly coherent to hold that, while every kidnapping must involve (and need
only involve) taking or carrying away, it also goes on being committed throughout
any period of detention or secreting that follows the taking, even though detention
or secreting on their own would not suffice.
2.39 This, as we believe, was the law before D,62 and is in accordance with the
popular meaning of the term “kidnapping”. If a child is abducted and held at a
secret destination for weeks or months while ransom demands are made, we
would anticipate that most members of the general public would regard the whole
operation as kidnapping: they would be very surprised to learn that the kidnap is
over as soon as the destination is reached. Lord Brandon’s dismissal of the
element of “secreting” may therefore have been over-hasty.
2.40 Nevertheless, since D kidnapping is clearly restricted in this way. The offence
goes on being committed throughout the taking or carrying of V: it may also
include any period of stationary confinement during pauses on the way, but ends
as soon as the final destination is reached.
59
60
[2003] EWCA Crim 2149, [2004] QB 388. Cort was overruled in Hendy-Freegard, but on
other grounds.
61
[1978] 1 WLR 921.
62
[1984] AC 778.
18
2.41 The practical significance is that the remaining elements of the offence (force or
fraud, loss of liberty, lack of consent or lawful excuse) are attached to the conduct
element, either as ways or circumstances in which it is carried out or as
consequences. It seems artificial to require all these elements to relate only to
that part of the process during which V is in motion. We explore the implications
of this in Part 3.63
Force or fraud
Role in the offence

2.42 D’s use of force or fraud could form part of the offence of kidnapping in three
ways:
(1) it could constitute the means by which D takes or carries V away;
(2) it could represent the means by which V is deprived of liberty;
(3) it could be the reason for V’s lack of consent: either V was overborne and
therefore did not consent at all, or V’s apparent consent was given
because of a threat or deception and therefore should not be treated as
genuinely given.64
2.43 In Lord Brandon’s definition, only the first of these ways is a formal ingredient of
the offence of kidnapping. Kidnapping is defined as the taking or carrying away of
a person by force or fraud.65 This means, not only that force or fraud must be
present in every case, but also that one or both of these forms of conduct must
be the means by which D effects the taking or carrying away of V.
2.44 According to Cort66 the requirement that the taking away be “by force or fraud” is
satisfied by any deception sufficient to cause V to accompany D on a journey.
This may be referred to as a “but-for” test: V would not have accompanied D but
for the deception. Presumably the same “but-for” test applies where the allegation
is that D has caused V to accompany D by force. Any degree of force is sufficient
to satisfy this element of the offence if V would not have accompanied D but for
that force. As we have seen, taking or carrying away can be a continuing
process, and the offence goes on being committed throughout. It is not necessary
that D actively applied force or fraud throughout the process, as long as one or
more forms of conduct remains a causative factor for V’s continued presence.
This can be illustrated by two contrasting examples.
63
64
65
Para 2.12 above.
66
[2003] EWCA Crim 2149, [2004] QB 388. This aspect of the decision was not disputed in
Hendy-Freegard.
19
Example 1. As on the facts of Cort, V enters D’s car and undertakes
to travel with D because of D’s false statement to V that the bus
service is cancelled and that D will give V a lift. D uses no subsequent
fraud or force. The entire journey constitutes a “taking or carrying
away by fraud”, as the fraudulent representation causes V to go on
the journey with D and continues to operate on V’s mind throughout.
Example 2. On similar facts to Cort, V enters D’s car because of D’s

false representation about the bus, but part way through the journey,
D’s car is overtaken by a bus. V realises that D was lying. If on those
facts D offers to let V out of the car, but V decides to let D take V to
V’s destination anyway, there would be no kidnapping from that point
on. The reason for V being in the car is no longer D’s fraud but the
renewed consent V gives freely and in knowledge of the facts.
2.45 As explained above, since D it appears that the offence ends when V reaches the
destination, however long V is confined there afterwards. For this reason, if D
used no force or fraud to “take or carry away” V, that is to say transport V to the
destination, he does not commit the offence of kidnapping by subsequent use of
force or fraud to detain V at the destination. D’s use of force or fraud to deprive V
of liberty (otherwise than by carrying or taking V away) does not satisfy the “by
force or fraud” requirement of the offence.
Example. D, who is V’s father but is in the process of divorce from V’s
mother, invites V to his flat for tea. V follows him docilely, but given
V’s age the court considers that V has not got the capacity to consent
to being taken away. He then forcibly detains V there, and as a
condition for letting her go demands that V’s mother should
discontinue her application for a residence order in her favour. This is
a taking or carrying away without consent, but is not by force or fraud,
as there is no fraud and the force is not used until after their arrival.
2.46 Force or fraud could also be relevant to the question of consent (aspect (3)
above), and this will be discussed in full below.67 However, it is important to
emphasise that D’s use of force or fraud and V’s lack of consent remain separate
requirements of the offence. The question whether D’s force or fraud caused V to
be taken or carried must be kept separate from the question of whether D’s
conduct was sufficient to negate V’s consent.68
Meaning: force
2.47 “Force” in this context could be interpreted as meaning either “violence” or
“compulsion” (as when we speak of being forced to do something). The first is its
normal meaning in law: Jowitt’s Dictionary of English Law69 defines force simply
as “such violence as was unlawful”.
67
68
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011) para 17.12.2.1, first paragraph
(page 690).
69
3rd ed (2009).
20
2.48 The modern cases on kidnapping give little guidance on the meaning of force: the
main examples of forcible kidnapping concern the abduction of family members,
for example D70 and Rahman,71 both of which involved some degree of pushing
or pulling, and therefore amounted to battery.
2.49 The requirement of “force” appears to be derived from the old formula “by force
and arms”, which was used both in false imprisonment and in the early
kidnapping cases, but this appears to have been largely a formality of pleading.
In the older kidnapping cases there was no suggestion that either the apprentices
sent abroad, as in Swimmer,72 or the abducted female minors, as in Lord Grey,73
were subjected to violent treatment or the threat of it.
2.50 The modern case law on false imprisonment makes clear that that offence need
not involve an assault or battery.74 Any means D employs which makes it
physically impossible, difficult or dangerous for V to leave a circumscribed area is
sufficient. This need not involve physical violence or touching against V’s person,
as with the obvious example of D locking the door to confine V.75 So far as there
is an implicit requirement of force in false imprisonment it is satisfied by proof of
compulsion.
2.51 The question, then, is whether in the current offence of kidnapping “force” is to be
interpreted as requiring only compulsion as in false imprisonment, or whether it
requires violence in the sense of physical touching or a threat of physical
touching.
2.52 We consider that, in the definition of kidnapping, “force” must mean more than
simply compulsion. Otherwise, it would only mean that the journey was
involuntary and add nothing to the requirement of lack of consent.
2.53 Another argument for interpreting force as violence or the threat of it would be to
distinguish kidnapping as a more serious offence than false imprisonment and
one properly classified as a crime of violence. Adopting such an interpretation
might also be thought to maintain consistency with other offences against the
person such as assault and battery. Moreover, that narrower interpretation might
be thought not to limit the offence too much since “force” in offences against the
person is widely construed. In assault and battery, for example, the slightest
unwanted physical contact or threat of it can amount to force.
2.54 However, we consider that a requirement that D uses physical violence or the
threat of violence on V would be too restrictive and create anomaly. For example,
on this narrow interpretation, it would be sufficient (all other elements aside) if D
put out a restraining hand when V appeared to be about to leave D’s car, without
actually touching V. But it would not be sufficient if D used the central locking to
prevent V from getting out.
70
[1984] AC 778.
71
(1985) 81 Cr App R 349.
72
(1753) Sayer 103, 96 ER 818.
73
(1683) 2 Show KB 218, 89 ER 900, 9 St Tr 127.
74
Para 2.153 below.
75
Para 2.162 below.
21
2.55 We believe that the answer lies between the two. The element of force is, in
our submission, satisfied if there is coercion of V by physical means or the
threat of them.
Example. V chooses D’s car as a place to sleep. Once V is asleep, D

drives the car home with the doors locked and shuts it in a garage.76
There is compulsion by physical means without touching or the threat of it and,

subject to any question of fault, we believe that this is capable of amounting to
kidnapping.
Meaning: fraud
2.56 Equivalent questions arise in connection with fraud. Does the requirement that
the taking or carrying away be by “fraud” mean that D must tell a positive lie, or is
it sufficient that D breaches a promise or fails to disclose relevant information?
This has particular significance because it raises the question whether the
offence can be committed, all other elements aside, if D entices a child to
accompany D without telling any lies, for example by making a genuine promise
of sweets.
2.57 We have found no English authority on this point in the context of kidnapping, but
analogous questions arise in connection with sexual offences. However, the
cases on sexual offences77 are not particularly helpful since they relate to the
question whether D’s fraud is sufficient to vitiate V’s consent to the relevant
sexual act. In the present context, the question is a quite different one: is D’s
fraud a “but-for” cause of V accompanying D on a journey. (The question of
whether fraud vitiates consent can also arise in kidnapping, and is discussed
below.78)
2.58 We suggest, under the present law, there is no precise rule prescribing in
what circumstances D’s mere non-disclosure satisfies the requirement of
taking “by fraud”. This is a question of fact depending on the relevant
circumstances of the case including, crucially, whether V has an expectation that,
if a circumstance exists, it will be disclosed. This will often be the case where the
circumstance is relevant to a choice that V is being asked to make.
Without consent
2.59 Lord Brandon’s definition includes the requirement that D acts “without the
consent of the person so taken or carried away.” This element is in addition to the
requirement that D causes V to be taken or carried away by “by force or fraud”.
Role in the offence

2.60 Two questions arise here.
(1) To what must V not consent?
76
A fictional instance occurs in P G Wodehouse, Joy in the Morning (1st ed 1946).
77
Linekar [1995] QB 250; Dica [2004] EWCA Crim 1103, [2004] QB 1257.
78
22
(2) What is the relation between the requirement of lack of consent and the
requirement of force or fraud?
CONSENT TO WHAT?
2.61 Since the offence of kidnap comprises more than one possible wrong against or
harm to V (being taken or carried away, being subjected to force or fraud, loss of
liberty) the question arises whether the offence occurs only when V is not
consenting to all of these, or whether it is sufficient that V is not consenting to
specific elements. This question is not unique to kidnapping; analogous questions
arise in connection with burglary,79 robbery80 and aggravated vehicle taking.81
2.62 In kidnapping, the offence could be construed so as to require:
(1) an absence of consent to being taken or carried away;
(2) an absence of consent to being taken or carried away by force or fraud;82
(3) an absence of consent only to loss of liberty;83 or
(4) some combination of the above, cumulatively or in the alternative.
2.63 For simplicity, our approach is to address whether it is necessary to prove an

absence of consent in relation to each conduct element.
Taking or carrying away?

2.64 Does the office of kidnapping require proof that V has not consented to being
taken or carried away? It is clear from the terms of Lord Brandon’s definition that
it is sufficient that V has not consented to that conduct. His lordship’s judgment
leaves open the question whether it is necessary to prove an absence of consent
in relation to the taking or carrying away. The answer to this will emerge as we
consider the other elements. For example, if we conclude that lack of consent to
loss of liberty is sufficient, it will follow that lack of consent to taking or carrying
away is not necessary.
79
Crummack, Stell and Campbell [2007] EWCA Crim 1692, [2008] 1 Cr App R (S) 56.
80
Macro [1969] Criminal Law Review 205.
81
McGill [1970] RTR 209, CA; Peart [1970] 2 QB 672; Singh v Rathour [1988] 1 WLR 422,
429.
82
Suggested in Cort [2003] EWCA Crim 2149, [2004] QB 3 at [19].
83
Suggested in case comment on Hendy-Freegard [2007] Criminal Law Review 988.
23
Force or fraud
2.65 Does the offence require proof that V was not consenting to the use of force or
fraud? There are some logical difficulties in the notion of consenting to the use of
force or fraud. Clearly, a person can consent to being subjected to force in the
sense of violent activity, for example in masochistic games. But in this situation,
the question is significantly different: it is whether V has consented to being taken
away by force.84 Consent to being taken by force can exist, but only in unusual
and unlikely circumstances. One example is where the force was directed against
someone else, such as V’s parent or carer; another is where a person, such as a
compulsive alcoholic in a lucid interval, consents at one time to be forcibly held at
another.85 (Consent to being taken by force must of course be distinguished from
apparent consent that is itself extorted by force.)
2.66 Fraud, to be successful, must operate by deceiving a person into allowing

themselves to be taken away. It is illogical however to suggest that the
agreement to being taken or carried away can include agreement to the very
fraud by which the consent was obtained.86
2.67 In Cort,87 it was suggested that the offence required proof that V was not
consenting to being carried away by force or fraud. Lord Justice Buxton, giving
the judgment of the court, said:
But in our case what is it that the complainants are said to have
consented to? On one level they have consented to taking a ride in a
motor car. As Mr Gibbs said, that is what they wanted all along; or, at
least, what they wanted all along was transport to their ultimate
destination. But that is not what the offence consists of and is not in
law the offence, or the basic act, with which Mr Cort is discharged.
The offence is taking away by fraud. The complainant simply has not
consented to that. Indeed, it is difficult to see how one could ever
consent to that once fraud was indeed established. The ‘nature’ of the
act here is therefore taking the complainant away by fraud. The
complainant did not consent to that event. All that she consented to is
a ride in the car, which in itself is irrelevant to the offence and a
different thing from that with which Mr Cort is charged.88
84
As mentioned in the case comment to Hendy-Freegard, [2007] Criminal Law Review 985,
989.
85
Para 2.102 below.
86
For detailed discussion see para 2.82 and following, below.
87
[2003] EWCA Crim 2149, [2004] QB 388.
88
[2003] EWCA Crim 2149 at [19].
24
2.68 The Criminal Law Review case comment on Cort89 agrees that the taking away
was “by fraud” in the causal sense that, had it not been for the lie, the offer of a
lift would not have been accepted. However, it rejects as absurd the suggestion
in Cort that consent must be to “taking-away-by-force-or-fraud”,90 in our view
rightly.91
2.69 We conclude therefore that there is no requirement to prove that V was not
consenting to the force or fraud being used to cause V to be taken away.
Loss of liberty
2.70 Does the offence require proof of a lack of consent to the deprivation of liberty?
This raises more complicated issues. If loss of liberty refers not to the bare fact of
physical restraint, but to the overall effect of the offence, namely being confined
without one’s consent,92 then consent to loss of liberty is a contradiction in terms.
Even if loss of liberty is interpreted more narrowly, to mean physical restraint, it is
doubtful if consent to this can be treated altogether separately from consent to
being moved.
Example. V asks D if V may sleep in D’s caravan, and asks D to lock

the caravan while V is there, as there are some dubious characters in
the neighbourhood. While V is asleep, D drives the caravan to
another site.
If consent to being taken or carried away is the sole test, this consent was
lacking. If consent to loss of liberty is the test, V’s consent was only to being
confined at the original position of the caravan, and does not extend to being
confined elsewhere.
2.71 We conclude that a lack of consent to loss of liberty is not a necessary element of
kidnapping: if V consents to being restrained but not to being taken away,
kidnapping is nevertheless committed. Nor is it sufficient to prove that V did not
consent to the loss of liberty: if V consents to being taken away but not to being
restrained, D may be guilty not of kidnapping but only of false imprisonment.
Example. V has agreed to go on a voyage in D’s yacht. While V is

there, D locks V in V’s cabin.
As the locking in does not alter the nature of the taking, it would seem that in this
case D is not guilty of kidnapping but is guilty of false imprisonment. D becomes
guilty of kidnapping if V demands to be put ashore and D refuses, or if D sails the
yacht to a place other than that to which V has agreed to go.
89
[2004] Criminal Law Review 64; partly incorporated into Smith and Hogan (11th ed 2005) p
575 and following, which appeared after Cort but before Hendy-Freegard.
90
Cort, and the case comment thereon, were both mentioned in Nnamdi [2005] EWCA Crim
74; but, as the appeal was allowed on the ground that the deception was not in fact
causative of the journey, the question whether Cort was correct did not need to be
decided.
91
Para 2.66.
92
Paras 2.135 and following, below.
25
2.72 The correct view appears to be that, as concerns consent, the offence
requires proof only that V was not consenting to being taken or carried
away. However, this means not consent to being taken or carried away in
principle, but consent to the taking or carrying away that actually happened. It is a
jury question whether particular features of the taking that happened, such as the
use of force or the consequent loss of liberty, mean that the taking that happened
was not the taking to which V consented.
Example. V has agreed to be taken away by a gang as part of a

ransom fraud. However, some of the gang members, being unaware
of V’s consent and believing that V would resist, knock V unconscious
and drag V to their vehicle. In this case V has consented to be taken
away, but has not consented to the use of force.
We suggest that the correct analysis is that, while V consented to being taken in
principle, V did not consent to the taking that actually happened.
2.73 Consent must last throughout the period of taking or carrying away to be a
defence. Lewis93 establishes that even if V initially consents, the offence is
committed if V later withdraws that consent and force is used to continue to
detain V.
CONSENT AND ITS RELATION TO FORCE OR FRAUD

2.74 In Lord Brandon’s definition, it is necessary to prove both that D used force or
fraud as the means of taking V away and that V was not consenting to being
taken away. The elements are separate and cumulative; they are not different
ways of saying the same thing. The relationship between the two elements is
confusing. It is possible for force or fraud to be present, but not in a degree
sufficient to negate consent. It is also possible for a taking to be without consent,
but for reasons unconnected with force or fraud. There are four possible
interrelationships to consider.
2.75 First, there may be a case where D has used force or fraud, and the effect of the
force or fraud is to negate V’s consent to being taken away. In this case both
requirements are met and kidnapping has been committed: this is in fact the
archetypal case.
Example. D forces V to enter D’s car at knife-point and drives V to D’s

house. This is a taking by force; the force is sufficient to overbear V’s
freedom of choice, and V’s apparent consent is no more than
submission.
Example. D, posing as a police officer, orders V, a prostitute, to enter

D’s car and drives V away. This is a taking by fraud; and as V does
not believe V has the option of resistance, the fraud has the effect
that there is no consent to being taken.
2.76 Secondly there may be a case where:
93
Unreported (22 March 1993); cited in Blackstone’s Criminal Practice (2010) para B2.84.
26
(1) D has used force or fraud, sufficient to bring about the taking or carrying
away (the “but-for” test);
(2) the force or fraud is not of a kind or degree sufficient to negate consent to
being taken away: for example, mild manhandling, or deception on a
peripheral matter; or the force or fraud may be against someone other
than V (for example, V’s carer); but
(3) consent is lacking for an unrelated reason, such as that V is a young

child or mentally impaired person who lacks the capacity to consent.
In this case both requirements are met, though for different reasons, and there is
kidnapping.
2.77 Thirdly there may be force or fraud, of a kind or degree insufficient to negate
consent to being taken away, and V does consent. In this case there is no
kidnapping.
Example. D and V are pupils at the same school. D invites V to come

and see D’s artwork, V at first refuses, and D tussles with V playfully
until V says “Oh all right”.
Example. D invites V to travel in D’s car for a picnic. V seems unsure,

and D promises V champagne if V comes. V agrees to come, but
there is no champagne and D never intended to provide any. In this
case the deception was sufficient to procure V’s participation, on a
“but-for” test, but is not of a serious enough nature to mean that V did
not genuinely consent to come.
2.78 Finally there may be a case where V does not consent to being taken away, but
no force or fraud is used at any stage. This may be because the case involves
the enticement of a young child or mentally impaired person, who lacks the
capacity to consent. Another possibility is that V is labouring under a mistake so
fundamental as to negate consent, but the mistake was not brought about or
perpetuated by D. In these cases there is no kidnapping.
Example. V is expecting a minicab to take V to the station. As D is

passing by in D’s car, V hails D in the belief that D is the minicab
driver. D stops, lets V in and drives off in the opposite direction. D is
exploiting V’s mistaken belief, but has played no part in bringing it
about: the taking is therefore not “by fraud”. (It may become forcible if
V later asks to be let out and D refuses.)
Meaning of consent
2.79 It having been established that the question of consent is relevant solely to V
being taken or carried away, it becomes necessary to define what consent means
in that context. Consent may be vitiated by force, fraud, lack of capacity, or
mistake not induced by D. The questions arising are:
(1) Is consent automatically vitiated if it was obtained by force or fraud?
27
(2) Does the consent need to be an informed and intelligent consent; in
particular, can a child consent?
(3) Is the consent of a person other than the abductee, for example a parent
or carer, ever relevant?
VITIATION OF CONSENT BY FORCE OR FRAUD

2.80 Does the fact that a taking was by force or fraud automatically mean that it was
without valid consent, or are there circumstances in which consent and force or
fraud can coexist?
2.81 For a taking to be by force can mean two things.
(1) One is that V is physically overpowered. This will usually mean that V
was taken without consent: one exception might be the case where V
gave consent in advance to the use of force.
V, a compulsive alcoholic, in a lucid interval asks D to sit with

V during the following evening, and to lock V in V’s bedroom
if V starts asking for drink. D does so, despite V’s protests.94
(2) The other meaning is that apparent consent was obtained by force,
usually in the form of threats. Whether such consent is genuine is a jury
question: Greenhalgh95 holds that it is open to a jury to hold that consent
induced by fear or force does not amount to true consent but only to
submission. The approach is the same as that used in sexual offences.96
In short therefore, it is possible, but unlikely, for D to use force to cause V to be

taken away, but for V to be validly consenting to being taken.
2.82 The case of fraud is more complicated. Unlike force, fraud always operates by
obtaining apparent consent: the question is whether the very fact that the consent
was obtained by fraud means that it was not genuine because V had no true
choice. There are at least three possible approaches to this question.97
(1) One could hold that fraud or mistake invalidates any consent that would
not have been given if the fraud or mistake had not been present, what
we have described as the “but-for” test.98
(2) On a stricter test, consent would only be invalidated by fraud or mistake

as to the identity of D or as to the nature of the act to which V consents.99
94
Para 2.102 below.
95
[2001] EWCA Crim 1367.
96
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011), para 18.2.1.1, pages 719, 727
and 728 and cases cited.
97
Rebecca Williams, “Deception, mistake and vitiation of the victim’s consent” [2008] Law
Quarterly Review 131.
98
Para 2.56 above.
99
Rebecca Williams refers to this as the non est factum test, on the analogy for the test for
the invalidity of deeds.
28
(3) A third possibility is to hold that fraud only invalidates consent when it
amounts to compulsion, in other words V is led to believe that V has no
choice but to do what D asks.
2.83 We believe that test (1) is too wide. It is the appropriate test for determining
whether the taking was “by” fraud, but as mentioned above100 and argued in
Smith and Hogan101 that is a separate question. D’s deception on some
peripheral matter may be sufficient to tip the scale in persuading V to accompany
D, without preventing V’s decision from being a voluntary one amounting to
consent.102
2.84 Test (2) was mentioned in Cort103 as being the one that then applied to rape. The
test for consent in sexual offences has since been widened, by sections 74 to 76
of the Sexual Offences Act 2003, to include deception as to the purpose of the
act and to allow (but not require) lack of consent to be inferred from other
deceptions.
2.85 Test (3) is consistent with the facts of Wellard,104 where V believed that she was
legally obliged to follow the orders of a police officer. However it does not cover
the facts of Cort, where the fraud was only the reason for V entering the car; and
while Cort was disapproved in Hendy-Freegard105 this was on other grounds.
2.86 We consider that consent obtained by fraud must be invalidated if either test (2)
or test (3) is satisfied. In short: consent will be invalidated by fraud or
mistake as to the identity of D or as to the nature of the act to which V
consents or when it amounts to compulsion, in other words V is led to
believe that V has no choice but to do what D asks.
2.87 Outside these limited circumstances it is a jury question whether the deception
was important enough to undermine V’s power of autonomous decision.
THE POSITION OF CHILDREN

2.88 On the question of whether a child can consent, Lord Brandon in D stated:
100
Para 2.46.
101
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011) para 17.12.2.1.
102
As in the case of the champagne, para 2.77 above.
103
[2003] EWCA Crim 2149, [2004] QB 388.
104
[1978] 1 WLR 921.
105
[2007] EWCA Crim 1236, [2008] QB 57.
29
That third ingredient, as I formulated it earlier, consists of the absence
of consent on the part of the person taken or carried away. I see no
good reason why, in relation to the kidnapping of a child, it should not
in all cases be the absence of the child’s consent which is material,
whatever its age may be. In the case of a very young child, it would
not have the understanding or the intelligence to give its consent, so
that absence of consent would be a necessary inference from its age.
In the case of an older child, however, it must, I think be a question of
fact for a jury whether the child concerned has sufficient
understanding and intelligence to give its consent; if, but only if, the
jury considers that a child has these qualities, it must then go on to
consider whether it has been proved that the child did not give its
consent. While the matter will always be for the jury alone to decide, I
should not expect a jury to find at all frequently that a child under 14
had sufficient understanding and intelligence to give its consent.106
2.89 What is meant, then, is an informed and intelligent consent. It is not sufficient that
a young child accompanied the abductor without putting up any apparent
resistance. The law in this area is clearly far less well developed than in relation
to consent and capacity in sexual offences.107 Accordingly the position of minors
is as follows.
(1) A child mature enough to give an informed and intelligent consent108 is

treated exactly like an adult: if there is genuine consent, there is no
kidnapping; if not (for example because of force or fraud sufficient to
overbear V’s power or decision) there is.
(2) At the opposite extreme, where V is a baby or very young child, who can
exercise no choice in the matter at all, there is no consent to the taking
away and this will, subject to the other elements of the offence, always
amount to kidnapping.
(3) However, there is an unresolved middle area, where a child is old

enough to accompany the abductor with apparent willingness but not
mature enough to understand the implications of what is happening. If a
child in this category is enticed to accompany D, it is reasonably certain
that the child is not validly consenting to being taken, but it may be hard
to establish either force or fraud or loss of liberty.
2.90 The same problem arises in connection with mental illness and learning disability
in individuals of any age. Cooper109 established that, in the context of sexual
offences, consent brought about by an irrational belief or other disordered mental
state that made it impossible for V to resist D’s conduct must be treated as
invalid. We suggest that this must apply equally to kidnapping.
106
[1984] AC 778, 806.
107
For the relationship between consent and capacity in sexual offences, see D Ormerod,
Smith and Hogan Criminal Law (13th ed 2011) para 18.2.1.1 pp 722 and 723; P Rook and
R Ward, Sexual Offences: Law and Practice (4th ed 2010), para 1.105.
108
Within Lord Brandon’s test, para 2.88 above.
109
[2009] UKHL 42, [2009] 4 All ER 1033.
30
2.91 It is worth emphasising that both in the case of children and in the case of the
mentally ill and the learning disabled there is a mismatch between the
requirements of force or fraud and of lack of consent. Where a person in any of
these categories is enticed to accompany D, there is a lack of consent because
of lack of capacity to consent. However, there is not necessarily any force or
fraud; so in the absence of identifiable coercion or deception it would appear that
kidnapping has not been committed. This is one of the problems with the offence
as discussed in Part 3.110
2.92 The third question in defining consent is whether the consent of a person other
than V can be relevant. This largely concerns the position of children and mental
patients. In the oldest relevant case, Lord Grey,111 the taking and carrying away
was stated to be without the consent of the father, and this was assumed to be
the test in cases involving minors in textbooks until well into the twentieth century.
Since then, through a series of three cases, namely People v Edge,112 Hale113
and D,114 it has become clear that only the consent of the abductee, however
young, and not that of the parent or guardian, is relevant for kidnapping
purposes.
2.93 The two original forms of the offence were the sending of people abroad and the
abduction of minors. The first recorded use of the offence for the abduction of
minors was Lord Grey: in that case the taking and carrying away was stated to be
performed unlawfully and without the consent of the abductee’s father.115 The
information was not worded as a form of false imprisonment; nor would this have
been possible, given that she came willingly.
2.94 There are two possible explanations for the abduction offence in Lord Grey. On
one view, the offence could have been conceived as committed against the
abductee, but she was under a legal incapacity to consent to it, so that her father
must consent, or not, on her behalf. On the other view, the offence could have
been conceived as being in the nature of a theft committed against the father,
whose consent would alone be relevant. The wording of the information suggests
the second view, which would make the offence one of child-stealing rather than
of kidnapping in the modern sense. This also explains the existence of lack of
consent as a requirement additional to force or fraud in the current offence: the
reference was originally to the consent of the father.
110
Paras 3.15 to 3.24.
111
(1683) 2 Show KB 218, 89 ER 900, 9 St Tr 127.
112
[1943] IR 115.
113
[1974] QB 819.
114
[1984] AC 778.
115
Lord Grey (1683) 2 Show KB 218, 89 ER 900, 9 St Tr 127.
31
2.95 By the time of East (1803)116 sending abroad and child abduction were subsumed
in a general offence of taking and carrying away (“kidnapping” in the broader
sense), and East does not discuss the specific problems arising from the
abduction of children. It is perhaps significant that, as early as 1828, a statutory
offence was created of unlawfully taking an unmarried girl under 16 out of the
possession and against the will of her parents or guardians.117
2.96 In the Irish case of People v Edge118 it was held that, in the case of a child who
has reached 14 (16 in the case of a girl), it is the child’s will and not the will of the
parents that is relevant. That is to say, the apparent rule in Lord Grey’s case
about minors was varied by substituting a defined “age of discretion” for the age
of majority. This was in accordance with the view in Russell on Crimes and
Misdemeanours,119 and was followed in Russell on Crime120 and early editions of
Archbold121 and Smith and Hogan.122 The court also expressed the view that,
while kidnapping proper (sending beyond the seas) is a discrete offence, the
wider offence is not truly distinct from false imprisonment.123 For this reason, loss
of liberty and lack of consent by the victim, rather than the removal of the victim
from guardianship, are the essence of the offence. The lower age of consent
follows from this.
2.97 Hale124 accepted the conclusion of Edge as concerns a boy over 14, but held that
there was no reason to distinguish according to age or sex. Accordingly, even
where the kidnapped person is a minor under 14, the indictment must specify
either that it is by force or fraud or that it is against the minor’s will; a reference to
the will of the child’s parents or guardians is not sufficient. (There was a separate
offence of child stealing under section 56 of the Offences against the Person Act
1861.) This is to rely on the result, and the underlying reasoning, of Edge while
denying the actual rule it states.125 Further, the judge in Hale observed that, while
the statements in the textbooks are based on East, there is nothing in East about
the position of minor children or the will of parents or guardians.126 This is correct
as concerns the body of the text, but East does cite Lord Grey in the margin.
116
East, A Treatise of the Pleas of the Crown (1st ed 1803).
117
Offences Against the Person Act 1828 s 20.
118
[1943] IR 115.
119
7th ed (1909) vol 1 p 902.
120
12th ed (1964) vol 1 p 692.
121
Eg 38th ed (1973) p 1036, para 2796.
122
Eg 3rd ed (1975) p 312.
123
For the relation between kidnapping and false imprisonment, see para 2.166 and following.
124
[1974] QB 819.
125
Lambert, “Kidnapping and False Imprisonment at Common Law”, (1979) 10 Cambrian Law
Review 20.
126
[1974] QB 819, 820.
32
2.98 A comprehensive statement of the law was made in D.127 In that case, as
previously mentioned,128 the defendant took the victim, his daughter, out of the
custody of her mother, once when she was aged 2 and once when she was aged
5: in both cases the taking was by force, in the sense that the child was physically
carried away, in the second instance after being wrenched from her mother’s
arms. It was common ground that the child did not, and could not in any
meaningful sense, exercise any choice as to whether to be taken away or not.
The difficulty was the legal effect of this.
2.99 The Court of Appeal interpreted the previous cases of Edge129 and Hale130 as
implying that a child under 14 cannot be kidnapped at all.
2.100 In the House of Lords, the main speech in the case was by Lord Brandon131 who,
disagreeing with the Court of Appeal, answered the certified question, namely
whether a child under 14 can be kidnapped, in the affirmative. His lordship
rejected the two alternative interpretations132 and observed as follows.133
My Lords, having reached that conclusion about the disposition of the

appeal, I must now deal with two matters to which I said that I would
return later. One of those matters is whether the doctrine laid down by
the Irish Supreme Court in Edge’s case134 that the person the
absence of whose consent is an essential ingredient of the common
law offence of kidnapping is that of the child if it has reached an age
of discretion fixed by law, but that of its father or other guardian if it
has not, applies also under English law.
In my opinion, to accept that doctrine as applicable under English law

would not be consistent with the formulation of the third ingredient of
the common law offence of kidnapping which I made earlier on the
basis of the wide body of authority to which your Lordships were
referred. That third ingredient, as I formulated it earlier, consists of the
absence of consent on the part of the person taken or carried away. I
see no good reason why, in relation to the kidnapping of a child, it
should not in all cases be the absence of the child’s consent which is
material, whatever its age may be.
127
[1984] AC 778.
128
Para 2.12.
129
[1943] IR 115.
130
[1974] QB 819.
131
The others simply concurred, subject to one reservation by Lord Bridge to be discussed
below (para 2.108).
132
Namely (1) that the taking cannot be said to be with the child’s consent: there is therefore
necessarily an act of kidnapping. (2) Given that the child could not consent for herself, her
will must be taken to be that of her lawful guardian: there was therefore kidnapping if and
only if the taking was against the will of the mother.
133
[1984] AC 778, 806.
134
[1943] IR 115.
33
2.101 In conclusion, kidnapping is an offence against the person kidnapped and
no one else, and the consent of the parent or guardian can never be
substituted for that of the person kidnapped. When V is a young child who
lacks the capacity to consent, it follows that there is no consent. Whether a child
has the capacity to consent is to be found on the facts about the actual child, and
not by reference to a supposed “age of discretion” to be fixed by law. It should be
noted that many cases where the child is taken with the consent of the parent or
guardian will be covered by the defence of lawful excuse.
Consent at what time?

2.102 Having established that there must be consent to being taken away, and what
consent means, a final difficulty is to determine at what point in time the consent
must be given to be valid. A problem arises where V consents to be taken or
confined for a period and later changes his or her mind and demands to be
released. We believe that it is an appropriate question for the jury whether the
original consent extends to the denial of her later demand. This can be illustrated
by two examples.
Example. V, a compulsive alcoholic, asks in a lucid interval to be

taken away and locked in for the evening to prevent access to liquor.
Later in the evening, when withdrawal symptoms have set in, V
demands to be released. A jury could take the view that at the earlier
time V was in V’s right mind, that V’s consent contained an implied
condition “even if I change my mind later”, and that V’s state of mind
later in the evening was within the predictable scope of that condition
and is not V’s “right mind” compared to earlier, and therefore say
there is genuine consent to the later confinement and to any force
used.
Example. V agrees to be manacled as part of a bondage game. Later

on V decides to stop the game and demands to be released. Here
any jury would probably take the view that V genuinely thought better
of it and that if D does not agree to release V then V’s confinement
from the time of the demand, and any force used, is without consent.
Lawful excuse
2.103 The fourth of Lord Brandon’s ingredients is “without lawful excuse”. This
presumably applies to the whole act comprising the use of force or fraud, the
taking or carrying away and the deprivation of liberty, since unless they are all
present the taking or carrying away is not so apparently unlawful as to need an
excuse.
34
2.104 There are several circumstances in which there is lawful authority for detaining a
person or transporting her from one place to another without her consent. The
obvious examples are arrest by the police and the performance of their duties by
prison officers. Another is the exercise of reasonable parental discipline;135 or
discipline in schools, whether justified by the Education Acts or by parental
permission. A further example is orders for deprivation of liberty under the Mental
Capacity Act 2005.136 The emergency services and private individuals may
sometimes need to transport a person who is ill or unconscious from one place to
another. Their actions may be covered by a defence of necessity even if there is
no specific statutory authority.
2.105 Other defences, applicable to offences against the person or offences generally,
include self defence, lawful defence of property, defence of another, duress and
duress of circumstances.
2.106 Finally there are the cases of mistake, where D believes that circumstances exist
which would constitute one of the defences: these may conveniently be referred
to as putative defences. In the case of false imprisonment, it is a defence that D
had an honest but mistaken belief that D was acting in self-defence or in defence
of D’s family or property. The test is whether the defence of self-defence etc.
would be available if the facts were as D believed them to be.137 We believe that
the same would apply to kidnapping.
2.107 A further question is whether, to establish a defence, D’s relevant belief in the
facts needs to be held on reasonable grounds. In Faraj138 V was an engineer who
called on D to repair a time switch, and D, believing V to be a burglar, forced him
into a corner at knifepoint. The court held that the test was whether D held an
honest belief rather than reasonable belief. We agree, as the same is true in
other offences against the person where the mistake concerns the need for self-
defence or defence of others.139 This will not however always apply to other
defences. In the case of duress, and that of necessity, the test generally is
whether D reasonably believed that the threat or other danger existed.140 While
there have been no reported cases concerning this issue in relation to kidnapping
or false imprisonment, the rule must be the same as in other offences against the
person.
135
Discussed in para 2.108 and following.
136
As amended by the Mental Health Act 2007.
137
Faraj [2007] EWCA Crim 1033, [2007] 2 Cr App R 25.
138
Above, and see para 2.164 below.
139
The question is now governed by Criminal Justice and Immigration Act 2008 s 76: the test
is still genuine belief rather than reasonable belief, but the reasonableness of the belief can
be relevant to how likely it is that D held it. D Ormerod, Smith and Hogan Criminal Law
(13th ed 2011) para 12.6.1.1; A P Simester, J R Spencer, G R Sullivan and G J Virgo,
Simester and Sullivan’s Criminal Law: Theory and Doctrine (4th ed 2010) pp 674 to 675.
For the same test in the older law, see Beckford v R [1988] AC 130.
140
Smith and Hogan (above) para 12.2.1.3; Simester and Sullivan pp 735-6.
35
Parental authority
2.108 The Court of Appeal in D141 held that a parent cannot kidnap his or her own child,
if the child is under 18 and unmarried. On appeal to the House of Lords, Lord
Brandon held that there was no blanket exemption for abduction by the victim’s
father:142 while earlier authorities might appear to presuppose such an exemption,
this was because it was then thought that a father had the paramount right to
custody. Lord Bridge143 concurred, basing his decision on the fact that the father
had no right of custody and was contravening a court order, and expressed no
view on whether it was possible for a father to kidnap his own child in other
circumstances.
2.109 In Rahman,144 discussed below,145 the father was charged with kidnapping as
well as false imprisonment. The kidnapping charge was dropped in accordance
with the decision of the Court of Appeal in D146 that a parent could not kidnap an
unmarried minor child. The trial judge held that the same principle did not apply to
false imprisonment, and allowed the trial to proceed: the defendant was
convicted. Following the House of Lord’s decision in D,147 the defendant
appealed, arguing that he could not commit false imprisonment if there was no
order restricting his parental rights and he was not infringing the rights of the
other parent, and relying on Lord Bridge’s partial dissent in D. As we saw, the
Lord Chief Justice held that, whatever the position might be in kidnapping, it was
established law that a parent could commit false imprisonment if he or she
exceeded the bounds of reasonable parental discipline.
2.110 The court did not need to answer, and did not answer, the questions:
(1) whether any defence of parental rights must be the same in kidnapping
and in false imprisonment;
(2) whether Lord Bridge’s partial dissent in D was right or wrong, or

(assuming it to be right) what were the “other circumstances” in which a
parent could kidnap a child.
141
[1984] 2 WLR 112.
142
[1984] AC 778, 804.
143
Above, at 797.
144
(1985) 81 Cr App R 349.
145
Para 2.163.
146
[1984] 2 WLR 112.
147
[1984] AC 778.
36
2.111 On the first question, we argue that, though the two offences are different, they
share the ingredients of force, lack of consent and deprivation of liberty.148 It
would accordingly seem that the test of reasonable parental discipline should
apply in the same way to both offences. On the second question, the defence of
parental authority is one form of lawful excuse within Lord Brandon’s definition,
and therefore cannot apply to an act that is beyond the lawful powers of the
parent for whatever reason. Taking by a parent will therefore amount to
kidnapping either if there is no right of custody (for example because of a court
order) or if there is such a right but the exercise of it exceeds the bounds of
reasonable parental discipline.
2.112 Prosecutions against parents for kidnapping are strongly discouraged where
other offences or mechanisms are available.149 In C (kidnapping: abduction)150 a
father took his son out of the jurisdiction, intending to keep him permanently
without the mother’s consent. He was charged with kidnapping and abduction
under section 1 of the Child Abduction Act 1984. The case established that
kidnapping should not be charged where the charge under section 1(1)
encompasses all the elements of the allegation. Lord Justice Watkins151
reiterated the point made by Lord Brandon in D that the actions of parents who
take their own children should usually be dealt with as contempt of court and that
kidnapping should only be charged in the most serious cases.
Loss of liberty
Role in the offence

2.113 Lord Brandon, in D,152 describes kidnapping as an attack on and infringement of
the personal liberty of an individual. There are three possible ways of interpreting
this description.
(1) Infringement of liberty refers to D’s act of confining V, and is part of the
conduct element of the offence.
(2) Infringement of liberty is a consequence element: the taking or carrying

away by D must cause V’s loss of liberty to occur.
(3) Infringement of personal liberty is not one of the ingredients of the

offence at all, but a description of the rationale of the offence, explaining
what public interest it exists to protect.
148
Para 2.173.
149
The consent of the Director of Public Prosecutions is needed for such a prosecution: Child
Abduction Act 1984 s 5, para C.4 below.
150
[1991] 2 FLR 252.
151
Above, p 256.
152
[1984] AC 778.
37
2.114 Glanville Williams appears to favour the first interpretation, taking loss of liberty
as a conduct element. He describes kidnapping as an aggravated form of false
imprisonment. This is consistent with the state of the law before D, in which
secreting could form part of the conduct element of the offence.153 (Even then,
though, perhaps the correct analysis was that, whether the conduct element took
the form of taking and carrying away or of secreting, it must have loss of liberty
as a consequence.) More importantly, the relevant passage in Lord Brandon’s
judgment does not provide explicit support for this interpretation. His lordship
clearly specifies taking or carrying away by force or fraud as the conduct element
of the offence. One could reconcile the wording of that passage with Glanville
Williams’ view by defining the offence as depriving V of liberty by taking/carrying
V away, rather than as taking/carrying V away and depriving V of liberty. This
however would be to treat loss of liberty as a consequence element, as in the
second interpretation.
2.115 Lord Brandon’s definition in D154 most naturally suggests that the third
interpretation is correct - that the deprivation of liberty is not an element of the
offence at all. His lordship does not list deprivation of liberty among the specific
ingredients of the offence but instead describes it as the “nature” of the offence:
the apparent implication is that, once the four listed ingredients are present,
infringement of liberty automatically results. However, later cases suggest that
this is too broad a view.
2.116 In Hendy-Freegard155 the Court of Appeal appears to prefer the second

interpretation: that deprivation of liberty is a consequence element of the offence.
The Court in Hendy-Freegard distinguished Cort156 from Wellard157 on the ground
that, in Wellard, the victim was led to believe that she was complying with the
instructions of the police, and in that sense genuinely deprived of liberty (at least
psychologically), whereas in Cort the victims were both physically and
psychologically free to get out of the car at any time. This decision in effect adds
a rider to D by showing that loss of liberty does not automatically follow from the
four requirements listed by Lord Brandon. It should be treated either as a fifth
requirement or as a gloss showing how the four listed requirements should be
interpreted.158 Either way, the decision in Hendy-Freegard most naturally
suggests that the taking or carrying must be shown to result in infringement of
liberty, or the offence is not made out.
2.117 We conclude that it is an essential ingredient of the offence of kidnapping

that the taking or carrying away has the effect that V undergoes a loss of
liberty.
153
Para 2.31 and following, above.
154
[1984] AC 778.
155
[2007] EWCA Crim 1236, [2008] QB 57; discussed [2007] Criminal Law Review 986.
156
[2003] EWCA Crim 2149, [2004] QB 388.
157
[1978] 1 WLR 921.
158
See case comment [2007] Criminal Law Review 985, 989.
38
HOW IS LOSS OF LIBERTY BROUGHT ABOUT?
2.118 Loss of liberty may be brought about by either physical or psychological means.
In Wellard,159 for example, V’s loss of liberty lay entirely in her belief that she was
required to accompany D: she was not physically restrained at any point. As
mentioned in Hendy-Freegard,160 it remains debatable whether the loss of liberty
occurred during the walk to the car or when V got into it; but on either
interpretation, it was sufficient in Wellard that V was led to believe that she could
not legally leave D’s custody.
2.119 It is less clear whether the offence includes a case where V is led to believe that
it is physically impossible (or difficult or dangerous) to leave D’s company, or the
relevant place of subsequent confinement (if any), as the case may be. This
would seem to be as effective and as blameworthy a form of imprisonment as
physical restraint or purported arrest, and we believe that the offence should
cover such a case, but we have found no authority on the point.
2.120 In short, the cases show that loss of liberty may be brought about either by
physical restraint or by deception to the effect that it is legally impossible to leave
D’s company or the place of confinement. There is a possible (and as we believe
likely) extension to a third situation, of deception to the effect that it is physically
impossible, difficult or dangerous to leave. However, we believe that it cannot be
extended further than that, to other forms of deception. Inducing a belief that it is
a good idea to stay, rather than impossible to leave, does not contain the
necessary flavour of compulsion for an offence as serious as kidnapping.
Example. D entices V to accompany D to a house by falsely telling V

that V’s brother is expected there and, once V is in the house, D locks
the door on V. This is kidnapping on the Hendy-Freegard test.161
Example. D entices V into a house by falsely telling V that V’s brother

is expected there and, once V is in the house, tells V, falsely, that D is
a policeman and has the right to detain V. This is kidnapping. In our
view it would equally be kidnapping if D told V that there were
gunmen outside,162 or rattled the lock so that V believed V was locked
in.
Example. D entices V into a house by falsely telling V that V’s brother

is expected there and, once V is in the house, keeps V there for the
next hour or two by continuing to assure V that the brother is
expected any minute. This deception does not amount to compulsion,
as it does not cause V to believe that it is necessary to stay or
impossible to leave, and it would appear that kidnapping has not been
committed.
159
[1978] 1 WLR 921.
160
[2007] EWCA Crim 1236, [2008] QB 57.
161
Subject to the timing question discussed in para 2.121 and following.
162
Falsely, or indeed truly if D has arranged for them to be there or knew in advance that they
would be there.
39
AT WHAT STAGE DOES THE LOSS OF LIBERTY NEED TO OCCUR?
2.121 We have seen above163 that since D164 the conduct element of kidnapping is
confined to the taking and carrying away of V, and does not extend to the act of
confining V at the final destination. The taking or carrying away must however
result in a deprivation of V’s liberty. A question arises whether the loss of liberty
must occur simultaneously with and as part of D’s conduct in taking or carrying V
(the narrower test), or whether it is sufficient that D’s conduct only results in a
loss of liberty once the destination is reached (the broader test).165
2.122 One situation can be dealt with immediately as it is not contentious. Taking and
carrying away constitute a continuing process,166 and it is clearly sufficient for the
loss of liberty to exist during any part of the taking and carrying away. This view is
supported by the Court of Appeal’s acceptance in Hendy-Freegard167 that, had
Cort refused to let a passenger out of his car there would have been a sufficient
loss of liberty to make the overall process amount to kidnapping, even though the
initial “taking” was consensual (subject to the question of fraud).
2.123 The more difficult question is whether it is sufficient that the deprivation of liberty
occurs only at the conclusion of the travel process.
Example. D fraudulently induces V to accompany D to a destination,

but V is free to leave D’s company at any time during the journey. D
then imprisons V at the destination.
No loss of liberty occurs until the destination is reached. On the narrower test,
this case will not amount to kidnapping. On the broader test, it will.
2.124 A more complex example is the case where D simply asks V to accompany D,
without using force or fraud at any point of the journey, but V is incapable of
giving valid consent because V is a small child or mentally impaired; once more,
D imprisons V at the destination. This case is in any case excluded from liability
by the requirement that the taking be “by force or fraud”, and we identify this as
one of the problems with the offence.168 But were that requirement modified or
removed, the same issue would arise as in the previous paragraph.
2.125 The case law provides no clear answer to whether the loss of liberty must be
simultaneous with the taking or carrying away.
163
Para 2.35 above.
164
[1984] AC 778.
165
The case comment on Hendy-Freegard [2007] Criminal Law Review 985 observes:
“Wellard raises the additional issues of whether the deprivation of liberty must be by the
taking or carrying away, or more specifically, whether the deprivation of liberty must be
during the taking or carrying away”.
166
Para 2.24 above.
167
[2007] EWCA Crim 1236, [2008] QB 57.
168
40
2.126 Several arguments favour the broad view, that the offence of kidnap can and
should include a case where loss of liberty occurs only at the conclusion of the
taking or carrying process. First, Lord Brandon in D169 did not specify loss of
liberty as a formal ingredient of the offence: rather, it is the rationale for the
existence of the offence. This broad approach implies that it should be sufficient
that the sequence of events, taken as a whole, is such as to amount to or involve
an attack on the personal liberty of an individual.
2.127 The broad view also derives some slender support from the discussion of
Wellard170 in the judgment in Hendy-Freegard.171 In Wellard, V was induced by
deception to walk 100 yards to a car and get into it, but was released without the
car having been driven. The court in Hendy-Freegard left open the question
whether the true explanation of Wellard was that the loss of liberty followed the
“carrying” (the walk to the car) and occurred when V got into the car or that it
occurred during the walk to the car, given that V believed she was under
compulsion; it cited the report of the Criminal Law Revision Committee172 as
favouring the second theory. The better view would seem to be that the offence
can be committed in either way, and therefore includes a case in which V is
carried away to a stationary place of confinement.
2.128 Thirdly, the broad view also makes better sense in policy terms, as it accords with
the popular understanding of kidnapping. In the archetypal form of ransom
kidnapping, especially of a child, V is enticed (usually by deception) to a
destination and is then imprisoned there while the ransom demand is made.
Assuming that there is no loss of liberty during the journey, it would be odd if the
characterisation of the offence depended on whether the destination to which V
was enticed, and in which loss of liberty occurred, was a house or a moving
vehicle.
2.129 Fourthly, there is no inconsistency with adopting the broader view and regarding
the loss of liberty as a consequence element as we conclude above. A
subsequent confinement does not form part of the conduct element, but is part of
the consequence element: the taking and carrying away must result in loss of
liberty, whether during or after the carrying.
2.130 Adopting the broader view does not create difficulties in terms of identifying when
the offence is complete. It is necessary that the taking and the confinement form
part of a single scheme and that there is no break in the chain of events. On this
view, the conduct element begins and finishes with the process of taking or
carrying away, but D’s conduct does not acquire the character of kidnapping until
the loss of liberty occurs. In some cases that will be with the act of taking or
carrying away, in others, it will be with the subsequent deprivation of liberty. This
is not unusual in offences against the person. For example, in murder the
conduct element may consist of stabbing or administering poison, but does not
acquire the character of murder until the victim dies.
169
[1984] AC 778.
170
[1978] 1 WLR 921.
171
[2007] EWCA Crim 1236, [2008] QB 57 at [47] to [48].
172
Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976),
see Appendix A, para A.2.
41
2.131 While we regard this as the better view, in terms of interpretation of the present
law, we acknowledge that it is arguable, following D173 and Hendy-Freegard,174
that the deprivation of liberty must occur simultaneously with the conduct element
of the offence. Adopting the narrower view does have further consequences
which may be undesirable. For example, the fraud requirement will be stricter
because it will be necessary for D’s fraud to cause V to be taken or carried away
and to deprive V of liberty. On the narrow view, only the type of fraud that
persuades V that it is legally or physically impossible (or difficult or dangerous) to
escape will be relevant.175 Fraud will, in other words, only be relevant on facts
closely similar to Wellard.176 In contrast, on facts similar to those in Cort,177 if D
had deceived V into entering the car and then (unlike Cort) refused to stop and let
V out, fraud will be present but would not have caused the deprivation of liberty.
The offence would, however, still be committed as the refusal to let V out while V
is still being “carried away” will amount to force (as we have interpreted it above).
2.132 The uncertainty as to the time at which the deprivation of liberty must occur is in
itself a good reason for statutory reform, and is one of the practical problems with
the offence discussed in Part 3.178 We would also argue that, if the narrower view
is correct there would be no kidnapping if D has used enticement to cause V to
accompany him, there is no loss of liberty during the journey but only at the
destination. Arguably, that construction of the offence would omit too many
instances of ransom kidnapping to be fit for its purpose although, admittedly, all
could be charged as false imprisonment.
Meaning
2.133 The meaning of “deprivation of liberty” has been considered in several cases,
mostly in connection with article 5 of the European Convention on Human Rights.
Examples are the cases concerning “kettling”;179 others concern the care of
children and vulnerable adults.180 The meaning of liberty given in the human
rights jurisprudence is not necessarily decisive of its meaning in domestic law.
2.134 As a matter of ordinary language, liberty is notoriously difficult to define.181

Broadly speaking, it is the opposite of restraint: the ambiguity is in whether this
refers to every kind of restraint, or only to a restraint preventing one from doing
something one wants. This may be tested through a series of examples.
173
[1984] AC 778.
174
[2007] EWCA Crim 1236, [2008] QB 57.
175
Para 2.120 above.
176
[1978] 1 WLR 921.
177
[2003] EWCA Crim 2149, [2004] QB 388.
178
179
Eg Austin v Metropolitan Police Commissioner [2007] EWCA Civ 989, [2008] QB 660, see
para 2.155 below.
180
Eg P v Surrey County Council [2011] EWCA Civ 190, [2011] 1 FCR 559; MH v Secretary of
State for the Department of Health [2005] UKHL 60; R (H) v Secretary of State for Health
[2005] UKHL 60; R (Munjaz) v Ashworth Hospital Authority [2005] UKHL 58.
181
See for example Isaiah Berlin, “Two Concepts of Liberty”, in Four Essays on Liberty
(1969).
42
(1) V is in prison. Since there is no help for it, and for the sake of an easier
life, V philosophically adapts V’s will to the circumstances and decides
that that is where V wants to be; after a while V becomes acclimatised
and even regards V’s impending release with some anxiety. On a certain
definition (“freedom is the power to do what you want”), that means that
V is “free”; but this is scarcely in accordance with the normal use of that
word, as V would not have the option of leaving if V’s state of mind were
to change.
(2) V is asleep and D locks the door of V’s room. V is not conscious of the
frustration of a wish to leave the room; but again on any normal use of
words V has been deprived of liberty, as V would not be able to leave the
room if V did wish to.182
(3) V is handcuffed to a piece of furniture, with V’s consent, as part of a

game. Here there is a stronger argument for saying that V has not in any
real sense been deprived of liberty, as V can at any time decide to stop
the game and demand to be released.
2.135 This last example is the most relevant from the point of view of kidnapping. The
central question is whether within the offence of kidnapping the requirement that
D’s conduct caused V’s “loss of liberty” refers to:
(1) the bare fact of physical restraint, so that the proper analysis is that V
has been deprived of liberty, but has consented to that deprivation; or
(2) the frustration of the right to liberty, meaning that V loses the power to
choose: on this view it is logically impossible to consent to loss of liberty,
as loss of liberty means being subjected to a physical constraint without
consent.
2.136 There is no “right” or “wrong” answer to this question as a matter of language.

The question is which is meant in the definition of kidnapping. The question is
whether kidnapping comprises a deprivation of liberty by taking or carrying away,
to which V does not consent? Or is it a taking or carrying away without consent,
amounting to a deprivation of liberty?
2.137 The second interpretation seems more consistent with Lord Brandon’s language
in D.183 Deprivation of liberty is not one ingredient of the offence among others. It
is the overall effect of the offence with all its ingredients, including lack of
consent.
182
For the same question in relation to false imprisonment, see para 2.162 below.
183
[1984] AC 778.
43
Sending abroad
2.138 The sending abroad form of the offence was the only one known to Blackstone,184
who mentions neither the abduction offence in Lord Grey’s case nor any
generalised offence of stealing persons. East, as we have seen,185 gives both the
specific and the general definitions, and this is followed in the eighth edition of
Hawkins.186
2.139 The unreported case of Nodder187 is generally taken as the deathblow of the
theory that sending abroad is a necessary part of the offence. Nevertheless, in
Edge188 the Irish Supreme Court still entertained the theory that sending abroad
is the proper meaning of kidnapping as a separate offence and that the wider
meaning is simply an instance of false imprisonment.
2.140 The present law is clear. There is no requirement for V to be sent abroad. Lord
Brandon, in D, stated that:
… in earlier days, the offence contained a further ingredient, namely,

that the taking or carrying away should be from a place within the
jurisdiction to another place outside it; this further ingredient has,
however, long been obsolete, and forms no necessary part of the
offence to-day. 189
The fault element

2.141 Kidnapping, like false imprisonment, requires proof that D’s conduct was
performed with a state of mind of intention or recklessness.190 Both kidnapping
and false imprisonment are discussed in Hutchins.191 The defendant in that case
took drugs at a party and then took a girl together with a neighbour as hostages.
It was held that:
(1) false imprisonment is the unlawful and intentional or reckless restraint of

a victim’s freedom of movement from a particular place;
(2) an analogy can be drawn between false imprisonment and kidnapping;
(3) the intent required for kidnapping is intent to take away a person without
that person’s consent, and can be committed either knowing that the
victim does not consent or being reckless as to whether or not the victim
consents;
184
Commentaries on the Laws of England (1st ed 1765) iv 219.
185
East, A Treatise of the Pleas of the Crown (1st ed 1803) p 429; 2nd ed (1806) p 429; see
para 2.8 above.
186
A Treatise of the Pleas of the Crown, (8th ed 1824), p 119. None of the previous editions,
from the first edition (1716) to the seventh edition (1795), mention kidnapping.
187
1937: mentioned in Archbold (39th ed 1976) s 2796 (not in current edition) and in later
cases. See also W Duke (ed) Trials of Frederick Nodder (1950) Notable British Trial
Series, Hodge.
188
[1943] IR 115.
189
[1984] AC 778, 800 to 801.
190
For false imprisonment, see para 2.164 below.
191
[1988] Criminal Law Review 379 (CA).
44
(4) kidnapping, like other offences of recklessness, is a crime of basic intent:
that is, a failure to foresee the possible consequences of one’s act does
not negative liability for the offence if that failure is brought about by
voluntary intoxication.192
2.142 Once more the elements of intention and recklessness can be considered under
the heads of context (what must D intend or be reckless about) and content (what
does intention or recklessness mean). Intention or recklessness could in principle
relate to any of the external elements of the offence.
Taking or carrying away

2.143 Most cases will involve intentional taking or carrying away. There could in
principle be a case of reckless but unintentional abduction, though the facts
would be unlikely and unusual.
Example. D, while drunk, commandeers a bus to drive home in

regardless of the presence of V on the upper deck.
In this case, D is also reckless as to the danger of loss of liberty resulting from
D’s action.
Force or fraud
2.144 In most cases, the requirement of force or fraud more or less ensures that the
abduction will be intentional. However, the example already given shows that it is
possible for “force” (in the sense of compulsion rather than of violence) to be
used recklessly rather than intentionally.
192
For the effect of intoxication on criminal liability, see “Intoxication and Criminal Liability”
(2009) Law Commission No 314, in particular paras 1.15 to 1.20 and Part 2. The leading
cases are DPP v Majewski [1977] AC 443 and Richardson and Irwin [1999] 1 Cr App R
392: see also Heard [2007] EWCA Crim 125.
45
Lack of consent
2.145 In practice, it will be in relation to the element of the victim’s consent that
recklessness commonly arises. As noted,193 in Hutchins194 it was accepted that
recklessness was a sufficient fault element for kidnapping. One case that might
seem to go against this analysis is Harris (Timothy Gavin),195 in which a taxi
driver drove his female passenger to a secluded area and had sexual intercourse
with her. It was held that the jury was entitled to convict him of kidnapping and
acquit him of rape, as rape involves an extra element, namely D’s state of belief
as to whether V consented, whereas kidnapping was committed as soon as the
taxi departed from the route to her home without her consent. This might seem to
indicate that, as concerns V’s consent, kidnapping is an offence of strict liability.
In the context, however, we read the case as saying no more than that, on the
facts, the possibility that D had an honest but mistaken belief that V consented to
be abducted did not arise, while the issue of D’s belief in V’s consent to sex arose
in relation to a later time in the order of events and was therefore independent of
it. In conclusion the case could be read either way, and is not sufficient to amount
to an unambiguous repudiation of Hutchins.
Lawful excuse
2.146 D may honestly but mistakenly believe that circumstances exist that constitute a
defence; for example, D may believe that V is a burglar, as in Faraj.196 These
cases, however, are customarily treated as branches of the particular defence in
question, rather than as showing that D was not at fault because D was not
aware of a circumstance that would make the act an offence.197
The meaning of intention or recklessness

2.147 The cases on kidnapping raise no issue on the meaning of intention, and in
general law the meaning of “reckless” is now reasonably well established. In
Cunningham,198 where the offence was “maliciously administering a noxious
thing”,199 the Court of Criminal Appeal approved the definition in Kenny’s Outlines
of Criminal Law:200
193
Para 2.141.
194
195
[2007] EWCA Crim 3472.
196
[2007] EWCA Crim 1033, [2007] 2 Cr App R 25; see para 2.164 below and para 2.107
above.
197
A Ashworth, Principles of Criminal Law (6th ed 2009), para 6.5 concerning putative
defences in general. See also Simester, “Mistakes in Defence” (1992) 12 Oxford Journal of
Legal Studies 295.
198
[1957] 2 QB 396.
199
Offences Against the Person Act 1861 s 23.
200
J W Cecil Turner (ed), Kenny’s Outlines of Criminal Law (16th ed 1952) p 186.
46
in any statutory definition of a crime, ‘malice’ must be taken not in the
old vague sense of ‘wickedness’ in general, but as requiring either (i)
an actual intention to do the particular kind of harm that in fact was
done or (ii) recklessness as to whether such harm should occur or not
(i.e. the accused has foreseen that the particular kind of harm might
be done, and yet has gone on to take the risk of it).
2.148 This test was modified by the House of Lords in Caldwell v MPC,201 which held
that recklessness also exists when the defendant has not given any thought to a
risk which should have been obvious to a reasonable person. However, in G,202
concerning a definition of criminal damage containing the word “reckless”, the
House of Lords overruled Caldwell and reinstated the Cunningham test in more
or less its original form. The House explicitly approved the definition of
recklessness in the 1989 draft Criminal Code203 which stated that a person is
reckless as to a circumstance or a result if he is aware of the risk and
unreasonably (in the circumstances known to him) goes on to take it. (This last
requirement, of unreasonableness, was not mentioned in Cunningham.)
2.149 The discussion in G only set out to define recklessness in the context of the
offences of criminal damage and arson,204 though it did set itself in the context of
a general tendency to ‘subjectivism’ in the interpretation of the fault element of
offences, as exemplified by the 1989 draft Code. It is therefore not decisive of the
meaning of “reckless” in other statutes, still less of that of any recklessness test
existing at common law. Nevertheless G has been taken in later cases205 as
representing the current law in other offences where the fault element is
described by statute as either malice or recklessness.206
2.150 Hutchins itself was not fully reported, and the summary in the Criminal Law
Review did not address the meaning of recklessness.207 The case commentary
assumed that either the Cunningham or the Caldwell type or recklessness would
be sufficient. This however was written well before G.208 We therefore believe that
the subjective test, as in G, is the one that would prevail today.
201
[1982] AC 341.
202
[2004] 1 AC 1034.
203
Criminal Law: a Criminal Code for England and Wales (1989) Law Com No 177.
204
[2004] 1 AC 1034 at [28] by Lord Bingham.
205
Barnes [2005] 1 WLR 910, Salisu [2009] EWCA Crim 2702.
206
For a full discussion, see D Ormerod, Smith and Hogan Criminal Law (13th ed 2011) para
5.2.2 (pp 118 to 127) and A P Simester, J R Spencer, G R Sullivan and G J Virgo,
Simester and Sullivan’s Criminal Law: Theory and Doctrine (4th ed 2010) para 5.2 (pp 140
to 147).
207
208
[2004] 1 AC 1034.
47
KIDNAPPING AND FALSE IMPRISONMENT
2.151 One final question that arises on the scope of the present law is the relation of
kidnapping to the older offence of false imprisonment. We conclude that, in
substance and historically, the two offences are independent of each other,
though they have some common elements. However attempts have been made
to explain kidnapping as a form of false imprisonment, and it is possible that the
loss of liberty requirement in kidnapping is a relic of these attempts.
False imprisonment
2.152 False imprisonment, like assault and battery,209 is both a crime and a tort: as
torts, all three are instances of trespass against the person. This dual character
goes back at least as far as the thirteenth century. Bracton210 specifies that
imprisonment, like all breaches of the peace, may be proceeded against either
criminally by way of appeal (an archaic form of private prosecution), so as to
incur punishment, or civilly by way of an action for trespass, so as to incur
damages.
2.153 The original form of pleading for false imprisonment was to allege assault,
battery, wounding and ill treatment, with the fact of imprisonment added as an
aggravation.211 For this reason false imprisonment was treated by the older
authorities as a form of assault.212 However, the mention of assault, battery and
so on was a formality of pleading rather than an indication that all these acts are
a necessary ingredient of the offence or the tort: it is well established that an act
of false imprisonment need not involve an actual assault.213 Still less need it
involve battery or wounding. It has however been held in a civil case214 that it
must involve a positive act: simply omitting to let a prisoner out for an exercise
period is not false imprisonment.
209
Battery literally means “beating” but extends to any application of physical force; assault
includes any attack or act putting a person in apprehension of a battery, whether there is
physical contact or not.
210
Bracton, On the Laws and Customs of England ed Thorne (1968), vol 2 pp 410-411.
211
Para 2.171 and n 252 in Part 2 below.
212
Hawkins, Pleas of the Crown (8th ed 1824) ch 60; Pocock v Moore (1825) Ry & M 321.
213
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011), para 17.11.1.1 (p 680) and
authorities there cited.
214
Iqbal v Prison Officers Association [2009] EWCA Civ 1312, [2010] 2 WLR 1054.
48
What amounts to a false imprisonment?
2.154 The definition of false imprisonment (leaving aside the fault element for the
moment) is identical in tort and in crime, and tort cases may be cited in
proceedings for the crime and vice versa. Imprisonment must involve
confinement to a limited area: mere restriction on freedom of movement, such as
blocking one exit from a house while allowing another, does not qualify.215 In
other words the boundary must be a closed loop of 360°, but there is little if any
authority on how large or small the area of confinement need be.216 Imprisonment
exists if it is either impossible to leave the area of confinement, or difficult or
dangerous, for example if the only means of escape is by climbing down a
drainpipe.217
2.155 In Austin v Metropolitan Police Commissioner the Court of Appeal218 held that the
police practice of “kettling” demonstrators within a police cordon amounted to
imprisonment, though justifiable in the circumstances.219 (However, it was also
held, both by the Court of Appeal and by the House of Lords, that it was a
restriction rather than a deprivation of liberty for the purposes of the European
Convention on Human Rights.)220
2.156 Many cases, both in tort and in crime, involve arrest or imprisonment in purported
exercise of a legal duty, for example a police officer arresting a suspect by the
wrong procedure or without power to do so or a prison governor detaining a
prisoner too long on a mistaken view of the way the sentence should be
calculated.221 The meaning of imprisonment, for the purposes of false
imprisonment, is therefore influenced by the meaning of arrest, in the context of
police powers.
A need for force or fraud?

2.157 False imprisonment, unlike kidnapping, does not have an explicit requirement of
“force or fraud”. In one sense, however, some element of force or fraud is implicit
in the very fact of imprisonment, but only if one interprets both widely, so that
“force” means any act making it impossible, difficult or dangerous to escape and
“fraud” means any act bringing about or exploiting a false belief that this is the
case. This however is different from the requirement of taking by force or fraud as
found in kidnapping.
215
Bird v Jones (1845) 7 QB 742; Clerk and Lindsell on Torts (20th ed 2010) para 15-23; D
Ormerod, Smith and Hogan Criminal Law (13th ed 2011), para 17.11.1.1 (p 680).
216
Carter & Harrison on Offences of Violence (2nd ed 1997), para 9-006. But see Smith and
Hogan (above) para 17.11.1.1 n 531, citing Winfield and Jolowicz on Torts (15th ed 1998) p
71: “Napoleon was certainly imprisoned on St Helena”.
217
Smith and Hogan (above) para 17.11.1.1 (p 680); Carter & Harrison para 9-006.
218
[2007] EWCA Civ 989, [2008] QB 660 at [12].
219
The appeal to the House of Lords, [2009] UKHL 5, [2009] 1 AC 564, was on the human
rights aspect of the defence of justification, and did not seek to argue that there was no
imprisonment.
220
For a case in which “kettling” was held to be unjustifiable, though without specific
discussion of the nature of false imprisonment, see R (Moos and McClure) v Metropolitan
Police Commissioner [2011] EWHC 957 (Admin).
221
R v Governor of Brockhill Prison ex parte Evans (No 1) [1997] QB 443.
49
2.158 In Sandon v Jervis,222 it was held that it was sufficient to tap a person on the
shoulder and say “You are my prisoner”, provided that this conveys conviction to
that person that he or she is actually under arrest. On the facts of the case, the
conclusion drawn was that, as this was sufficient to effect a valid arrest, false
imprisonment had not been committed. However, it would seem to follow that,
where no power to arrest exists, the same actions would amount to false
imprisonment,223 at any rate if V believes D and submits to the “arrest”. Another
case supporting this test is Simpson v Hill,224 in which the defendant gave the
plaintiff in charge to a police officer, though on the facts false imprisonment was
not committed as no arrest was actually carried out.
2.159 This suggests that there can be imprisonment by non-physical means: in Bird v
Jones225 Mr Justice Coleridge said:
A prison may have its boundary large or narrow, visible and tangible,
or, though real, still in the conception only.
This is not decisive of the question whether false imprisonment can be committed
by fraud as well as by force. The prison “in the conception only” may refer, not to
a case where V is deceived into believing that he or she cannot leave a place, but
to a case where D draws a line and threatens to shoot V if he or she steps over it.
2.160 Today it is clear that kidnapping can be committed by fraud, but there is no clear
authority on the position in false imprisonment. Glanville Williams226 wrote:
There is no clear authority for saying that it is a false imprisonment (or

kidnapping – see below) to cause a person by deception to remain in
a place or to go to a place. The person who is deceived is caused to
behave in a certain way but is not deprived of his liberty. However, it
is quite possible that the courts will make this extension if the point
arises. There are precedents for saying that an offence of doing
something ‘against the will’ of someone covers the getting of consent
by fraud.
222
(1859) EB & E 942.
223
D Ormerod, Smith and Hogan Criminal Law (13th ed 2010) para 17.11.1.1 (p 679).
224
(1795) 1 Esp 431.
225
(1845) 7 QB 742.
226
G Williams, Textbook of Criminal Law, (2nd ed 1983), p 218, cited in Hendy-Freegard
[2008] QB 57 at [34].
50
2.161 It is a likely though not conclusive deduction from Sandon v Jervis227 and
Simpson v Hill228 that false imprisonment is committed if D impersonates a police
officer and purports to arrest V. It would seem, then, that a state of imprisonment
can be constituted by V’s belief that he or she cannot legally leave a place, or a
person’s custody. A further question that arises is whether false imprisonment
can also be committed by leading V to believe that it is physically impossible (or
difficult or dangerous) to leave. We have found no authority on this point, either
for false imprisonment or for kidnapping, but we believe that in principle the two
forms of deception are equally culpable and equally capable of amounting to
imprisonment by psychological means.229
Deprivation of liberty?
2.162 In false imprisonment, to establish the fact of imprisonment, physical or
psychological restraint is sufficient, in the sense that V could not leave if he or
she wanted to. There is no need to show in addition that V did want to. If V is
locked in a room, V is imprisoned there even if V has no wish to go out.230 There
is a defence if V specifically consents to the room being locked: the point being
made is that, if V is asleep or otherwise forms no wish one way or the other, it is
no excuse that V did not form a specific intention to leave or even that V was not
aware of the imprisonment.
Lawful excuse
2.163 A question arose about the potential liability of parents for false imprisonment. In
Rahman231 a father forced his 15-year-old daughter, who had been informally
fostered out to a local authority, into a car with the intention of taking her with him
to Bangladesh. He appealed against his conviction for false imprisonment, relying
on an analogy with the offence of kidnapping as it was then understood. He
argued that he could not commit false imprisonment if there was no order
restricting his parental rights and he was not infringing the rights of the other
parent. The judgment of the court, given by the Lord Chief Justice, was that,
whatever the position might be in kidnapping,232 it was established law that false
imprisonment, like assault, could be committed by a parent if he or she exceeded
the bounds of reasonable parental discipline.
227
(1859) EB & E 942.
228
(1795) 1 Esp 431.
229
For a discussion of this question in relation to kidnapping, see para 2.118 and following,
above.
230
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011) para 17.11.1 (pp 680 and 681),
citing Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 and other cases.
231
(1985) 81 Cr App R 349.
232
For the position in kidnapping, see para 2.109 and following.
51
2.164 In Faraj233 V was an engineer who called on D to repair a time switch, and D,
believing V to be a burglar, forced him into a corner at knifepoint. The main issue
in the case was whether unreasonable belief was capable of amounting to an
excuse; but it is also authority for saying that, if V had genuinely been a burglar,
D would have been justified in detaining him. In other words, all the normal
defences such as self-defence and defence of property apply to false
imprisonment as they do to kidnapping and assault.
Fault elements?
2.165 The tort of false imprisonment is one of strict liability.234 The crime, however,
“consists in the unlawful and intentional or reckless (our italics) restraint of a
victim’s freedom of movement from a particular place”.235 Smith and Hogan
argues that recklessness must bear its subjective, or Cunningham,236 sense.237
That is to say, the offender must have been aware of the risk that his or her
proposed actions would result in a loss of liberty, and decided without reasonable
justification to proceed with them. In Hutchins238 it was held that the offence, like
other offences of recklessness, is one of basic intent, in the sense that that
phrase is used in the context of intoxication: that is, a failure to foresee the
possible consequences of one’s act does not negative liability for the offence if
that failure is brought about by voluntary intoxication.239
233
[2007] EWCA Crim 1033, [2007] 2 Cr App R 25.
234
R v Governor of Brockhill Prison ex parte Evans, n 221 above, concerning an error made
by a prison governor in good faith.
235
Rahman (1985) 81 Cr App R 349, 353.
236
[1957] 2 QB 396.
237
D Ormerod, Smith and Hogan Criminal Law (13th ed 2011), para 17.11.2. For a discussion
of recklessness, see para 2.141 and following, above.
238
[1988] Criminal Law Review 379, para 2.141 above.
239
For the effect of intoxication on criminal liability, see “Intoxication and Criminal Liability”
(2009) LC No 314, in particular paras 1.15 to 1.20 and Part 2. The leading cases are DPP
v Majewski [1977] AC 443 and Richardson and Irwin [1999] 1 Cr App R 392.
52
Relationship between kidnapping and false imprisonment
2.166 The view that kidnapping is an aggravated form of false imprisonment was
standard doctrine from East (1803)240 to Glanville Williams (1983). However, this
view is not mentioned, except by way of quotation, in the more recent cases and,
on the modern authorities, the logic of the two offences is different. The account
given by Glanville Williams241 implies that the conduct element of kidnapping is
the same as that of false imprisonment, with taking and carrying away added as
an aggravation. The definition in D,242 even as qualified in Hendy-Freegard,243
makes it clear that this is no longer the case. The conduct element of kidnapping
is taking or carrying away, and the loss of liberty is best interpreted as a
consequence element.244
2.167 One difference that follows from this is that it is not certain that Lord Brandon’s
“force or fraud” requirement applies to false imprisonment, or even whether false
imprisonment can be committed by fraud at all.245 In kidnapping it is the “taking or
carrying” that must be by force or fraud, and this is precisely the element that is
absent in false imprisonment.
2.168 This part of the definition may be traced to the two passages by Glanville
Williams already cited.246 In one (described in Hendy-Freegard247 as “prescient”),
he states that it is not clear that deception causing a person to be in or go to a
place where he does not wish to be is false imprisonment (“or kidnapping – see
below”), but that the court may quite possibly make the extension if the case
arises. In the other, he describes kidnapping and adds “As was said before, the
courts may perhaps extend it to a taking by deception”. He clearly regarded the
issue of force or fraud as common to both offences: whether they can be
committed by fraud as opposed to force is uncertain, but the answer must be the
same for both.
2.169 Since Wellard248 (in which D “took and carried away” V by pretending to be a
police officer and telling her to walk to his car) and D it is clear that kidnapping
can be committed by either force or fraud.
240
East, A Treatise of the Pleas of the Crown (1st ed 1803) p 429; (2nd ed 1806) p 429; see
para 2.8 above.
241
G Williams, Textbook of Criminal Law (2nd ed 1983) p 219; see para 2.10 above.
242
[1984] AC 778.
243
[2007] EWCA Crim 1236, [2008] QB 57.
244
245
Para 2.161.
246
G Williams, Textbook of Criminal Law (2nd ed 1983) p 218 to 219, cited at paras 2.10 and
2.160 above.
247
[2007] EWCA Crim 1236, [2008] QB 57 at [34].
248
[1978] 1 WLR 921.
53
2.170 Following Glanville Williams’ reasoning, the same should apply to false
imprisonment. On the other hand, Smith and Hogan, following the case
comments on Cort249 and Hendy-Freegard,250 argues that “by force or fraud”, in
Lord Brandon’s definition, is an independent requirement, relating solely to the
means of taking or carrying away. It cannot be reduced either to a means of
establishing absence of consent or to an aspect of the loss of liberty
requirement.251 If so, it does not follow that the same test must apply to false
imprisonment.
2.171 We believe that the supposed connection of the two offences is questionable on
historical as well as doctrinal grounds, as their origins are fundamentally different.
False imprisonment was an offence against individuals going back to the earliest
ages of the common law, and is a tort as well as a crime (specifically, a trespass
against the person). Kidnapping was an offence against public welfare devised by
the King’s Bench in the seventeenth century, and does not have a corresponding
tort. This difference was reflected in the traditional forms of pleading: the wording
of an indictment for false imprisonment was based on that for assault,252 while the
forms used for sending abroad253 and the abduction of minors254 were altogether
different, the wording in the last case resembling rather that for common law
larceny,255 though we do not suggest that it was actually a form of that offence.
2.172 Accordingly, kidnapping was not institutionally speaking a form of false

imprisonment, and the description of it as such was no more than an analogy.
East, like his predecessor Hawkins, was concerned to make a systematic
classification of criminal offences by subject matter: within that scheme
kidnapping belongs with false imprisonment, as both are offences against the
person and more specifically against personal liberty. It does not follow that they
must have a common origin or that the ingredients of the offences must be
interpreted in the same way.
2.173 In conclusion, false imprisonment may be useful as an analogy in the discussion

of force, loss of liberty and lack of consent, as these ingredients are shared by
the two offences. Otherwise, it is irrelevant to the conduct element of kidnapping.
2.174 It remains uncertain whether every kidnapping must also amount to false
imprisonment, though traditionally it has been held that it does. The answer
depends on two issues, discussed elsewhere in this paper.
249
[2004] Criminal Law Review 64; partly incorporated into D Ormerod,Smith and Hogan
Criminal Law (11th ed 2005) p 575 and following, which appeared after Cort but before
Hendy-Freegard.
250
[2007] Criminal Law Review 988; most of this discussion is incorporated into Smith and
Hogan (13th ed 2011) para 17.12 (p 687 and following, in particular p 689).
251
For the relation between force and fraud and lack of consent, see para 2.74 and following,
above.
252
Archbold, A summary of the law relative to pleading and evidence in criminal cases (4th ed
1831) p 359. Similar wording was used in civil cases: Fitzherbert’s Natura Brevium (6th ed
1718) p 192.
253
Dassigney (1683) Raym 474, 83 ER 247 and 2 Show 221, 89 ER 902.
254
Lord Grey (1693) 2 Show KB 218, 89 ER 900, 9 St Tr 127.
255
For the larceny wording, see East, Pleas of the Crown (1806) vol 2 p 778.
54
(1) Can false imprisonment be committed by fraud and without force?256 If
not, it follows that some kidnappings are not false imprisonment.
(2) Should the “loss of liberty” requirement in kidnapping be interpreted to

mean the same thing as the element of imprisonment in false
imprisonment?
256
Para 2.161 above.
55
PART 3
PROBLEMS IN THE LAW OF KIDNAPPING
SCHEME OF THIS PART
3.1 In this Part we address the central problems arising from the ambiguity of the
definition of the various elements of the offence and the interaction between
them. In particular, we focus on the following problems concerning the
boundaries of the offence.
(1) It is uncertain whether the loss of liberty must take place during the
process of taking or carrying away, or whether it can arise subsequently,
at the end of the journey. In other words, is the offence of kidnapping
committed if V is taken or carried away by force or fraud but without
being deprived of liberty until V is confined at the destination?
(2) At present, D does not commit kidnapping by enticing a person, without

force or fraud, to accompany D on a journey, even if V does not consent
(eg because of lack of capacity), and even if D subsequently confines V
by force or fraud.
These two problems are to some extent interrelated.
3.2 We also consider whether the existing requirement that D should accompany V
serves a useful purpose.
THE QUESTION OF TIMING: CONFINEMENT FOLLOWING TAKING

3.3 Following D,1 kidnapping is an offence that amounts to an attack on or
infringement of personal liberty. It consists of the taking or carrying away of one
person by another by force or fraud, without the consent of the person so taken
or carried away and without lawful excuse.
3.4 In practice, kidnapping may well occur in stages. There is the initial “taking” in the
sense of the capture or other moment at which the process begins by D
deceiving or forcing V to accompany D. There is then the carrying (or “taking” in
its other sense) including the whole process of moving V from one place to
another. There may or may not then be a third stage during which V is confined
at the destination, though formally speaking this does not now form part of the
conduct element of the offence.
3.5 Having regard to the case law before D, we consider that it would have been
kidnapping for D to confine V after the taking or carrying away was completed.
This was one effect of the part of the definition that referred to “secreting”. In D,
however, the House of Lords held that secreting has no relevance and that the
conduct element of the offence is confined to forcible or fraudulent taking or
carrying away. By the time the destination is reached, and the detention begins,
the offence is over.
3.6 This change has two possible consequences.
1
[1984] AC 778.
56
(1) The requirement of force or fraud is relevant only as the means of taking
or carrying away: the use of force or fraud to confine V at the destination
is neither sufficient nor even relevant.2
(2) The same may be true of the loss of liberty requirement. Loss of liberty,
to be relevant, must be a consequence of the taking or carrying away;
and on one possible view it must occur simultaneously with it.
When must the force or fraud be employed by D?

3.7 In D,3 the conduct element of kidnapping is described as the taking or carrying
away of one person by another by force or fraud.
3.8 It is clear from D that it is not necessary that V is detained at the conclusion of the
journey with the defendant. If D does detain V only at that point it is not
necessary that the detention be by force or fraud (though it is hard to conceive of
a case in which it is not).
3.9 The focus is therefore solely on the use of force or fraud in relation to the taking
or carrying away. This limitation has a rather strange practical result.
Example. D takes V, a baby, by overpowering the parent or carer, or

by snatching V from a pram. This is kidnapping.
Example. D, without force or fraud, invites V, a young child or a

mentally ill or learning disabled adult, to accompany D; V comes with
apparent willingness while the parent or carer is not looking, and is
then forcibly confined at the destination. This is not kidnapping, as
there is no force or fraud involved in the taking or carrying, though
there is in the loss of liberty.4
3.10 This result appears arbitrary, but we believe that it represents the current law.
2
Para 2.45 above.
3
[1984] AC 778.
4
Para 2.45 above.
57
3.11 Is the offence of kidnapping unduly restricted by this limitation? In many cases,
no difficulty will arise because the initial taking of V by D will be by force or fraud.
Similarly, it seems that no difficulty will arise if D, without use of force or fraud,
induces V to accompany him and in the course of the journey then uses force or
fraud to maintain V’s presence with D. There is a kidnapping, albeit that it might
be less clear to identify the point at which the offence began.5 However, in some
cases, the initial inducement to accompany D could be by pure invitation
involving neither force nor fraud, and no force or fraud might be used in the entire
taking or carrying away. In such a case, if there is no force or fraud used until the
final destination is reached, there would appear to be no kidnap, although it
would be false imprisonment.
3.12 Arguably, a logical kidnapping offence should be capable of covering not only the
cases of taking by force or fraud, involving or followed by detention without
consent,6 but also the reverse permutation (taking without valid consent,7
involving or followed by detention by force or fraud). On one view, it should make
no difference whether force or fraud is the answer to “How did V come into this
situation?” or to “Why can V not leave it?” The ultimate harm to V is similar in
each case. There are, however, counter arguments. The harm V suffers is
different in a case of being taken by force or fraud as that itself is a set back to
V’s interests additional to the harm caused by any subsequent detention. There
are also perhaps subtle differences in terms of the wrong done – D’s use of force
or fraud to cause V to accompany D is different from the use of force or fraud to
secure V’s detention. We consider in Part 4 whether a new offence of kidnapping
ought to extend to cases where V is detained by force or fraud following a
consensual journey with D.
When must the loss of liberty occur?

3.13 We believe that under the present law the offence is committed if it results in a
loss of liberty, whether during the taking or carrying or at another time. The
position is not, however, free from doubt.
3.14 There are three possible approaches the law could take.
(1) On the narrow view, loss of liberty must occur in the course of the taking
or carrying away. This more or less confines the offence to forcible
taking: the only instance of a taking by fraud alone would be a case like
Wellard,8 where the fraud amounted to psychological compulsion.9 If one
adopts the narrow view some surprising results follow.
5
We refer to this situation as “Cort plus”, meaning what would have happened if Cort had
locked the doors of the car and refused to let the passengers out. Jurisdictional issues
might arise in some cases as to whether the offence occurred within England and Wales.
According to the approach in Smith (Duncan Wallace) No 4 [2004] EWCA Crim 631, [2004]
QB 1418 the courts will have jurisdiction if a substantial measure of the conduct took place
in England and Wales unless there are reasons of comity requiring a different approach.
6
Whether the lack of consent should be referred to the loss of liberty is discussed at paras
2.70, 2.135 and following.
7
For the meaning of “valid” consent, see paras 2.79 and following, above.
8
[1978] 1 WLR 921.
9
Para 2.131 above.
58
Example. D by use of fraud, invites V, a young child or a
mentally ill or learning disabled adult, to accompany him; V
comes with apparent willingness while the parent or carer is
not looking, and is then forcibly confined at the destination.10
This will not be kidnapping because there was no loss of
liberty during the taking.
Example. D entices V to accompany him to a house by

falsely stating that V’s brother is expected there and, once V
is in the house, D detains V there.11 On the narrow view this
will not be kidnapping even though there is fraud that caused
V to accompany D, as the fraud did not cause a loss of liberty
or a belief in V that there was a loss of liberty: V could have
left D at any time in the journey; the loss of liberty did not
begin till V’s arrival.
(2) On a broader view, which we believe represents the present state of the
law, it is sufficient that there is a deprivation of liberty after the conclusion
of the journey in which D has caused V to accompany D by force or
fraud. The effect is that, while all the ingredients of the offence except for
loss of liberty (force or fraud, the absence of lawful excuse, absence of
consent) must coincide with the taking or carrying away forming the
conduct element of the offence, the deprivation of liberty can arise then
or later.
(3) A third, and perhaps more desirable position, although one that cannot
be said to represent the present law,12 is that both the taking or carrying
and any period of detention or confinement in the course of or following it
form part of the conduct element of the offence. We consider that this is
the most desirable result, as it removes any need to consider whether the
elements of force or fraud or consent relate only to the taking or carrying
or to any subsequent stationary detention. We also believe that it was the
law before D,13 as well as coinciding with the popular meaning of the
word kidnapping.
The ambiguity in this aspect of the offence is significant and supports the need
for reform. For example, in a case of ransom kidnapping, where V may be held
for a considerable period after the journey, to conclude that the kidnap is
concluded as soon as the journey is ended and that the subsequent conduct is a
separate offence of false imprisonment appears counter-intuitive. However, the
practical consequences of this are to some extent mitigated if we accept the view
that a subsequent period of detention is sufficient to satisfy the loss of liberty
requirement, as it is a consequence of the taking even if not occurring
simultaneously with it.14
10
This is the same case as in para 3.9 above.
11
Para 2.120 above.
12
13
[1984] AC 778.
14
For the existing law on this question, see para 2.121 and following.
59
FORCE OR FRAUD AND LACK OF CONSENT
3.15 Lord Brandon’s definition requires any taking or carrying away to be both by force
or fraud and without the consent of the person taken or carried away. At first sight
these look like two ways of saying the same thing: one of the two requirements
would appear to be redundant. As we have seen in Part 2, however, the
interaction between these two requirements is somewhat more complex.
(1) V might consent to force being used against V, and even to being taken
by force, though of course as a matter of logic there cannot be consent to
the very force or fraud by which the consent was procured.15
(2) V might not be consenting to the taking or carrying away even though D
has used no force or fraud: for example in the case of a child or mentally
impaired person, or where V labours under a fundamental mistake not
brought about by D.16
(3) Conversely, V might be consenting to the taking and carrying away even
though D has used force and fraud. This might occur for example where
the degree of force is too mild or the subject matter of the fraud is too
marginal to bring about a substantial infringement of V’s autonomy, or
where the force or fraud is directed at someone else.17
3.16 It is the second of these points that is most likely to cause problems in practice.
The problems may be exacerbated in some cases by the timing problems that we
have already identified.
Children and the mentally incapacitated

3.17 Where a child or person who is too mentally incapacitated to give meaningful
consent18 is invited or enticed to accompany D on a journey, the lack of consent
requirement is met but the force or fraud requirement is not, and the enticer is not
guilty of kidnapping. This leads to some strange distinctions: examples are as
follows.
D forcibly snatches V, a child, and abducts her. D is guilty of

kidnapping.
D invites V to accompany D without using any force or fraud, V

acquiesces. D escapes liability because of V’s vulnerability.19
D entices V to accompany D on a journey by promising sweets.
(a) If D intended from the outset not to give the sweets, there is
fraud, and D is guilty of kidnapping (even if D later has a change
of mind and gives the sweets).
15
16
Para 2.78, above.
17
18
In the sense discussed at paras 2.81 and 2.89.
19
Para 2.89(3) above.
60
(b) If D intended to give the sweets but had a change of mind, or
formed no intention one way or the other, there is no kidnapping.
3.18 In many cases any apparent gap in the protection offered by the criminal law is
filled by specialised child abduction offences, as described in Appendix C.
However, we do not consider that those offences are adequate for cases where
the abduction is the prelude to full-scale imprisonment or ransom demands. In
these cases D can be charged with false imprisonment or blackmail, but such
charges will not always be an adequate alternative, if only for reasons of labelling
and public perception.
3.19 There has been some criticism of this omission in academic literature. Lambert,
in an article written following Hale,20 concludes “the ability of the common law to
deal adequately with the problems presented by the kidnapping of “consenting”
minors must be doubted in the light of the ruling in that case”, and D21 does
nothing to alter that position. Glanville Williams22 criticises D on exactly the same
grounds.
3.20 The problem applies to mentally incapacitated adults in the same way as to
children, and for the same reasons. However, the practical problem in the case of
mentally incapacitated adults is in one respect greater than in the case of
children: where V is a child D can be charged with child abduction, but there is no
equivalent alternative charge in the case of an adult.
3.21 HM (Vulnerable Adult: Abduction)23 concerned the abduction of a vulnerable adult

by her father, who took her out of the jurisdiction and then concealed their
whereabouts from others. The question was whether the court had the power to
order the freezing and use of funds in his bank account to pay for litigation in the
foreign jurisdiction with a view to securing the daughter’s return. Lord Justice
Munby in his judgment highlighted the deficiency of the criminal law in protecting
someone in the victim’s position (an adult lacking capacity) since there would
often be no force or fraud involved in the taking of such a person. Arguably the
Taking of Hostages Act 1982 could apply, but under section 2(1)(a) proceedings
can only be instituted by or with the consent of the Attorney General, which would
be unlikely to be given in this type of case;24 and blackmail contrary to section 21
of the Theft Act 1968 could not apply since the defendant had not sought to make
any economic gain or cause any economic loss to anyone else. Lord Justice
Munby therefore said25 that “it might be thought that there is a gap here in the
criminal law which ought to be investigated with a view to seeing whether it might
not appropriately be stopped up”.
20
J Lambert, “Kidnapping and False Imprisonment at Common Law” (1979) 10 Cambrian
Law Review 20.
21
[1984] AC 778.
22
“Can babies be kidnapped?” [1989] Criminal Law Review 472.
23
[2010] EWHC 870 (Fam); [2010] 2 FLR 1057.
24
The Taking of Hostages Act 1982 was designed to deal with cases of international
terrorism rather than purely domestic disputes, and no prosecutions have ever been
brought under it.
25
Above, at [65].
61
3.22 The same result follows even if the abduction is followed by forcible confinement:
in such a case force or fraud is present at the loss of liberty stage but it is not the
means by which V was taken or carried away. There is therefore no kidnapping,
though of course D is guilty of false imprisonment.
3.23 Given the difficulties that arise from the cumulative requirement of force or fraud
and lack of consent26 we question the merit of the current definition. The essence
of kidnapping, in the generally understood sense of the word, is that V is
abducted against V’s will. For this purpose, provided there was no consent to the
taking or carrying away, it should not matter whether there was force or fraud or
whether consent was lacking for some other reason, such as that V was asleep
or too young or mentally incapacitated to give a meaningful consent. The present
requirement of force or fraud has no purpose except to provide the necessary
flavour of compulsion.
3.24 All these problems could be solved by one of two possible changes.27
(1) One possibility is to require merely a lack of consent to being taken and
carried away. Force and fraud would be simply two among the possible
reasons for consent not being present; lack of mental capacity would be
a third. It would be a jury question whether, in any particular case, the
force or fraud used, or V’s lack of capacity, was sufficient to preclude
genuine consent.
(2) An alternative, much more complex solution would be to make the

requirements of force or fraud and consent alternative rather than
cumulative. It would be sufficient if V was taken without consent or with
“consent” obtained by force or fraud. For this purpose, any level of force
or fraud would suffice provided that “but for” the force or fraud V would
not have accompanied D.28 This could be reinforced by a rule that a child
cannot consent: this could depend either on a fixed age or on the actual
mental capacity of the child.29
THE REQUIREMENT OF ACCOMPANYING

3.25 As we have seen, it is a requirement of the present law that D (the kidnapper)
must accompany V (the victim). This is implicit in the description of the conduct
element as “taking or carrying away”, as opposed to “sending”, “transporting” or
the like, and is made explicit in Hendy-Freegard.30 This requirement could be
defended on the ground that, otherwise, sending a person on a fool’s errand as a
practical joke would be kidnapping. This is not entirely convincing, as a case on
those facts would be adequately excluded by the other requirement in Hendy-
Freegard, that there must be deprivation of liberty.
26
Para 2.42 above.
27
The issue is discussed further in paras 4.20 to 4.26.
28
This risks the inclusion of some fairly trivial examples in the offence. This risk could be
obviated by incorporating a list of distinguishing factors indicating serious criminal purpose:
para 4.92 and following, below.
29
These proposals coincide with the law in New Zealand: Appendix B para B.41 below.
30
[2007] EWCA Crim 1236, [2008] QB 57.
62
3.26 The loss of liberty test could provide an adequate mechanism for excluding the
fool’s errand cases. As we argue above,31 V is not deprived of liberty unless V
believes that it is impossible, difficult or dangerous to leave the place to which V
is taken or sent. Therefore, a fraud by D which constituted an instruction to V
“you must go to X” is not necessarily a deprivation of liberty, whereas “you must
not go anywhere else” always is.
Example. As the result of a fraud by D, V moved to a given house and

fixed V’s residence there, but was free to go out of it unaccompanied,
for example to do the shopping, whenever V liked. (These are more
or less the facts of Hendy-Freegard.)
Example. D falsely tells V that D represents a national newspaper

and that V has won a prize. D tells V to go to a given house and not
leave till D comes to take V to the award ceremony.
In these cases there is no loss of liberty, and D should not be guilty of

kidnapping, regardless of whether D accompanied V to the destination.
3.27 By contrast, the following case does involve loss of liberty and goes well beyond
the “fool’s errand” category of case.
Example. D, posing as a secret service agent, sends V to a house

and tells V to wait there for a person to come and collect V, and that
under no circumstances should V leave or V will be in danger.
Following Hendy-Freegard this is not kidnapping under the current law, as D

does not accompany V. We consider that arguments of some force can be made
to suggest that this should be kidnapping. There is the same threat or fraud, the
same unwanted journey and the same consequential loss of liberty as in “normal”
kidnapping cases. Admittedly, since V is not being accompanied it might be
easier for V to override the compulsion V feels under from D’s threat or fraud and
therefore easier for V to escape, but that would depend on the facts of the case.
Similarly, if D is not accompanying V, there is no prospect that D will inflict harm
on V in the course of the journey, but again, it will not always be the case that D
inflicts such harm or even that V fears such harm in the course of an
accompanied journey in orthodox kidnap.32
3.28 In brief: at present “fool’s errand” cases are excluded from kidnapping for two
reasons. One is the requirement of loss of liberty (that is, that V is not free to
leave the destination). The other is the rule that D must accompany V. We agree
that fool’s errand cases should be excluded, but submit that the first of these
requirements is sufficient for this purpose.
3.29 Apart from the question of how to exclude fool’s errand cases, the question arises
whether there is any other reason to retain the requirement of accompanying.
31
32
The importance of harm or the fear of harm, as a factor additional to the basic facts of an
unwanted journey and loss of liberty, is discussed below at para 4.16.
63
Example. V, of V’s own free will, is in a railway carriage (at Euston)
and intends to get out at Birmingham. D locks V in, and arranges for a
confederate to let V out at Crewe.
Example. D sends V a letter saying that V has won a prize and should
go to a stated address in order to collect it. At that address D invites V
into the house and locks the door on V.
In both cases V has suffered the same basic harms as in any other kidnapping:
an unwanted journey, combined with or resulting in loss of liberty. The only
practical difference is in the mechanics and the order of events. The main
difference that D’s presence would have made to V’s state of mind is V’s added
fear of what D might do next, and the reduced chance of rescue. On the other
hand, if D is present V has the opportunity to try to persuade D to release V.
3.30 It is worth noting that the anomaly mentioned in Hendy-Freegard, that “the
consequence of the decision in Cort33 would seem to be that the minicab driver,
who obtains a fare by falsely pretending to be an authorised taxi, will be guilty of
kidnapping”,34 is not cured by imposing a requirement of accompanying. Nor
does a requirement of accompanying cure the problem arising on the facts of
Cort, as in that case D accompanied V throughout.
3.31 The requirement of accompanying appears to us to place undue emphasis on the

experience V has while in motion, as opposed to the overall result of D’s course
of conduct. In this respect it resembles the narrow view that loss of liberty must
occur during the taking or carrying away.35
3.32 It may be that the solution to this difficulty lies in rejecting any distinction between
kidnapping and false imprisonment and we explore this possibility in Part 4.
SUMMARY OF THE PROBLEMS
Uncertainty
3.33 One criticism of the offence of kidnapping is that there is difficulty in ascertaining
its boundaries, which have fluctuated considerably in recent decades. The scope
of the offence as described in Cort is very different from that in Hendy-Freegard,
and even accepting Hendy-Freegard as decisive there are several remaining
uncertainties.
3.34 In this paper we identified several important areas of uncertainty in the scope of
the existing offence of kidnapping, in particular the following.
(1) Whether there must always be some element of deprivation of liberty

during the process of movement, or whether kidnapping also includes a
case where the loss of liberty does not begin until V reaches the
destination.36
33
[2003] EWCA Crim 2149, [2004] QB 388.
34
Hendy-Freegard [2007] EWCA Crim 1236, [2008] QB 57 at [55].
35
Para 2.131 above.
36
Paras 2.124 to 2.132 above.
64
(2) Whether the loss of liberty requirement is satisfied if V was led by fraud
to believe that it was physically, rather than legally, impossible to leave
the custody of the abductor.37
Over- and under-inclusiveness

3.35 The offence of kidnapping is arguably too wide in its scope. For example, it
follows from Wellard38 that a police arrest made knowingly in excess of the
applicable powers becomes kidnapping as soon as the suspect begins to follow
the officer. Clearly the officer’s conduct is reprehensible and constitutes false
imprisonment, but we question whether the fact of movement ought to render the
officer liable for kidnap. At present only prosecutorial discretion avoids this result
in practice.
3.36 Despite the overall width of the offence, there are some notable omissions.
(1) The requirement of accompanying leads to arbitrary results. In particular,

on the view we take of the law the original form of the offence, namely
sending abroad, will no longer be caught unless D, or an agent of D,
accompanied V at least part of the way.39
(2) We have argued, above,40 that kidnapping includes a case where the
loss of liberty does not begin until the end of the process of taking and
carrying away but occurs as the intended result of it. However this is not
certain, and it is arguable that only loss of liberty during the taking and
carrying process qualifies.41 If so, the offence excludes some instances
of ransom kidnapping. In particular those falling within the old “secretion”
form of the offence42 would now not constitute kidnapping.
(3) The position of abducted minors and mentally impaired persons is

uncertain and unsatisfactory. Where a child is too young to have the
capacity to consent to being taken away, or a person has a learning
difficulty which negatives that capacity, but is enticed without force or
fraud to a place of confinement, the lack of consent requirement is met,
but there is no kidnapping.43
3.37 The overall result is strange both practically and historically.
37
Para 2.119 above.
38
[1978] 1 WLR 921.
39
Para 2.29 above.
40
Para 2.126 above.
41
Para 2.131 above.
42
Para 2.131 above.
43
Para 2.89(3) above.
65
(1) Practically, a case like Wellard,44 where the harm caused was fairly minor
even on the scale of false imprisonment,45 falls within kidnapping, while
Hendy-Freegard,46 involving harm of a much greater duration, falls
outside.
(2) Historically, the evolution of the offence is paradoxical.
(a) First there were the two separate offences of sending abroad and
child abduction.
(b) Then East47 or some unknown predecessor devised a broad

general formula to cover both, based partly on the child abduction
formula (taking and carrying away) and partly on the existing
offence of false imprisonment. This formula was general enough
to cover ransom kidnapping, both in the form of taking and
carrying away and in the form of secreting.
(c) Then, in a marked reversal of direction, the more recent cases

refined the definition to exclude, successively, non-violent child
abduction (in Hale),48 secreting (in D)49 and, indirectly, sending
abroad (as a consequence of the requirement of accompanying
in Hendy-Freegard).
In other words the offence now excludes, or only doubtfully covers, the
very instances it was originally designed to catch. In our view this is a
clear sign that something has gone wrong.
44
[1978] 1 WLR 921.
45
In the events that actually occurred: we acknowledge there was the possibility of far greater
harm if D had not been interrupted.
46
[2007] EWCA Crim 1236, [2008] QB 57.
47
East, A Treatise of the Pleas of the Crown (1st ed 1803), see para 2.8 above.
48
[1974] QB 819.
49
[1984] AC 778.
66
PART 4
REFORMING THE OFFENCES
INTRODUCTION
4.1 The discussion in the previous parts has identified the following principal
problems with the current law of kidnapping:
(1) it is not an offence for D, without force or fraud, to cause V to accompany

him, even if loss of liberty supervenes;1
(2) it might not be an offence of kidnapping if D uses force or fraud to cause

V to accompany him but does not deprive V of his or her liberty until the
conclusion of the journey. The loss of liberty does not occur
simultaneously with and as part of the taking and carrying away.
4.2 In simplifying the offence, we must address these concerns in particular. In

addition, we aim to offer provisional proposals that will use modern language to
create a clear and fair offence.
4.3 In this Part we consider the possible ways of reforming the offence of kidnapping
and restating it in statute. Given the close relationship between this offence and
false imprisonment, and the uncertainty about the boundary between them, we
consider it necessary to include reform and restatement of false imprisonment.
4.4 We provisionally propose that the existing common law offences of false
imprisonment and kidnapping should be abolished and replaced by one or
more statutory offences.
Scheme of this Part

4.5 We first consider the forms of conduct and fault that will form the elements of our
proposed models of statutory offence before describing the models themselves,
namely:
(1) Model 1: a single offence of non-consensual deprivation of liberty,

whether effected by detention or abduction;
(2) Model 2: one offence of non-consensual detention and one of abduction,

of equal gravity;
(3) Model 3: a basic offence of non-consensual detention or abduction, and

a more serious offence distinguished by listed aggravating factors.
ELEMENTS OF THE OFFENCES

4.6 In devising new offences to replace kidnapping or false imprisonment, the
following questions arise.
(1) With what types of conduct should the offences be concerned? Here we
discuss the acts of detention and moving.
1
Para 3.21 above.
67
(2) What types of harm, resulting from those acts, justify creating an
offence? Here we discuss loss of liberty and having to go on an
unwanted journey.
(3) What other conditions are required for the act to be wrongful? Here we
discuss lack of consent, lawful excuse and fault.
Detention and moving

4.7 Kidnapping and false imprisonment are at present concerned with the following
two forms of conduct.
(1) Detention: one person (D) keeps another (V) in a given place and
prevents V from leaving it.
(2) Moving: D causes V to go or be taken from one place to another.
Any offences we propose to replace them must also address these forms of
conduct. We acknowledge that these actions are not always wrong in
themselves, but may become wrong if necessary conditions are satisfied, for
example, D’s acts are knowingly against V’s wishes and without lawful excuse.
The resulting harms

4.8 These types of conduct can cause any or all of the following types of harm.
(1) Loss of liberty: V is not able to go where V wishes to go.
(2) The imposition of an unwanted journey: V is made to go where V does

not wish to go.
(3) Additional harms, such as fear, loss of dignity, loss of time, economic
loss, distress to one’s family and vulnerability to physical or psychological
abuse.
4.9 We need to consider whether any of these harms should be a necessary

condition of any offence; or a sufficient condition of any offence, provided that the
other conditions (such as lack of consent) are satisfied.
Loss of liberty
4.10 Loss of liberty in its narrow sense, namely inability to leave a place of
confinement, is the basis of the existing offence of false imprisonment, and can
enter into kidnapping as well. Kidnapping can also involve loss of liberty in a
different sense, namely that V lacks the power to prevent or discontinue the
taking or moving process; this is essentially the same harm, as V is not free to
leave D’s company and go to a place of V’s choosing. Several points of definition
are worth noting.
(1) We are not concerned with every limitation on freedom of action but only
those that affect V’s choice of whereabouts: not freedom what to do, but
freedom where to be.
68
(2) These offences should, we believe, only apply where V’s freedom of
movement is substantially removed, rather than limited. For example,
physically expelling V from the room may be a battery, but should not be
a detention or kidnapping offence. In detention, V is not free to go
anywhere; in kidnapping, V is not free either to stay put or to go to any
place but one.
(3) The definition should leave no room for arguments to the effect that a
baby or paralysed person has no freedom of movement to start with, and
therefore cannot be deprived of it. Liberty refers only to the absence of
external constraints, rather than to overall freedom of action.
4.11 With these clarifications in mind, we believe that loss of liberty in these senses is
a fundamental breach of V’s autonomy. Where detention or moving results in loss
of liberty, this should be sufficient to make the detention or moving criminal
(subject to questions of consent, excuse and fault).
4.12 Should loss of liberty also be a necessary condition of the proposed criminal
offences? That is:
(1) should an act resulting in an unwanted journey, but without loss of liberty
or other harms occurring, be criminal?
(2) should an act resulting in an unwanted journey be criminal where there is

no loss of liberty but other harms, such as fear of the defendant, are
inflicted?
4.13 In cases where, as a result of D’s action, V takes an unwanted journey without
deprivation of liberty there is, we believe, an infringement of personal autonomy
which is much less serious than the loss of liberty involved in detention. In
detention, V is barred from every place in the world except one; imposing an
unwanted journey may leave V with a greater degree of freedom.
4.14 In more detail:
(1) D causes V to go on an unwanted journey and the only harm suffered by

V is that V has wasted time and effort by being sent on a fool’s errand.
We do not believe that this should be a criminal offence of kidnapping or
its statutory replacement, even if D’s conduct is deliberate. To criminalise
fool’s errand cases, where the unwanted journey is the only harm
suffered, would be an unwarrantable extension of the criminal law.
(2) In contrast, where D’s conduct in causing V to move involves D holding V

in custody during the journey, subject to proof of fault and lack of
consent, D’s conduct ought to be criminal. Similarly, if the journey results
in V losing liberty after the journey has been completed, there is, we
believe, a compelling argument that, subject to fault and excuses, such
conduct ought to be criminal.2
2
If the journey is interrupted V should be guilty of attempt. The conduct element was
complete in itself, and was such as to bring about the consequence of loss of liberty
though this was averted by external factors.
69
4.15 Our conclusion on the first question is that the imposition of an unwanted journey
should not be sufficient for liability in the absence of deprivation of liberty or other
harms. The deprivation of liberty requirement is a useful way to exclude from
these serious offences those cases in which V is simply sent on a wasted journey
but suffers no other harm.
4.16 Should the occurrence of additional harms affect this conclusion?
(1) There is of course no question of the additional harms (fear, loss of

dignity, loss of time, economic loss, distress to others and vulnerability to
physical or psychological abuse) being sufficient for liability in
themselves. Cases of detention or moving, without consent, necessarily
involve either loss of liberty, an unwanted journey or both.
(2) It is arguable that, in certain cases, the imposition of an unwanted

journey, together with some additional harm, should be criminal even in
the absence of loss of liberty. One example might be where V is induced
by fraud to move to another country and finds it economically impossible
to return. However, these examples will be unusual and the additional
harms would have to be carefully chosen and defined. This possibility is
explored further under Model 3.3
4.17 We conclude that, with the possible exception of the case just mentioned, loss of
liberty should be a necessary condition of liability in any new offence replacing
false imprisonment or kidnapping.
ISSUES COMMON TO ALL PROVISIONALLY PROPOSED MODELS
Consent
4.18 Consent lies at the heart of the offences. If V gives valid consent to loss of liberty,
V’s autonomy is not infringed.
4.19 As argued in Part 3,4 one major flaw of the existing offence of kidnapping is that
the requirement of force or fraud is cumulative with that of lack of consent. On a
literal interpretation of D, if a child or mentally impaired adult is enticed to a place
of confinement there will be no kidnapping because the absence of consent was
caused not by force or fraud but by a lack of capacity.5
4.20 One solution to this problem would be simply to remove the requirement of force
or fraud, providing a general definition of consent. Its application in any case
would be a matter for the jury having regard to all the circumstances.
3
4
5
Para 3.21 above.
70
4.21 In cases involving force, whether the force was sufficient to negate consent is
unlikely to be controversial. There would be no consent either where V was
physically overpowered, as by being bundled into a van, or where V faced a
threat of such gravity that V’s acquiescence amounted to no more than
submission. These distinctions are left to juries in sexual offence trials in which
issues of consent are crucial and on which independent evidence is often lacking.
The general definition does not appear to have generated many difficulties in
practice: there are very few reported cases on the issue of consent and use of
force.
4.22 It is more difficult to specify which frauds by D should vitiate V’s consent. The
issue is addressed in the Sexual Offences Act 2003. Lack of consent is
conclusively presumed where V is deceived as to the identity of D or the nature
or purpose of the act, and may be inferred in other cases.6 It would be possible to
use a shortened and simplified form of these provisions in detention and
abduction cases, though the identity of D is arguably less crucial in these cases
than in the case of sexual contact.7 We do not believe that a complex regime
such as that for fraud as to the nature or purpose of the act in sexual offences is
necessary in the replacement offence for kidnapping. We do not propose to adopt
a scheme including such conclusive presumptions.
4.23 A claim that fraud “negates consent” in a given case could mean any of the
following:
(1) that V was deceived by D about the nature or purpose of the thing to
which V was consenting, and therefore did not consent to what actually
happened;
(2) that as a result of D’s deception, V thought there was no option but to act
in that way and was in that sense compelled;
(3) that V would not have consented but for D’s deception and was therefore
not acting in a free and informed way.
We argue above8 that, in existing law, the jury must find that consent is vitiated in
cases (1) and (2), and may find this in case (3). We do not propose to alter this
approach.
6
Sections 74 to 76.
7
Arguably what may be more important here than in sex cases is whether D has a particular
status – eg as a police officer.
8
Paras 2.86 and 2.87.
71
4.24 Another method of dealing with the definition of consent would be to adopt a
model similar to that used in New Zealand,9 where the taking must be either
without consent or with consent obtained by force or fraud. This would avoid
ambiguities by explicitly requiring that V would not have consented to D’s conduct
“but for” the deception and was therefore not acting in a free and informed way.
This would make the offence much wider than at present, and arguably wider
than is desirable: for example it could criminalise the case mentioned above,
where D persuaded V to come on a picnic by a false offer of champagne.10
4.25 Further, in existing law fraud is capable of including simple non-disclosure if the
fact in question is of sufficient importance.11 On a “but for” test this would include
every fact capable of influencing V’s decision. This could trivialise the offence still
further: for example it would seem inappropriate to charge D with kidnapping for
taking V on a pleasure trip because V would not have agreed to come had V
known that D did not intend to stop for lunch till after 2:00 pm. For this reason, we
provisionally propose not to adopt a “but for” test.12
4.26 We provisionally propose that:
(1) lack of consent should be a condition of liability in any new offence

that may be created to replace false imprisonment or kidnapping;
and
(2) any such offence should contain no separate requirement of force

or fraud, but force and fraud should be taken into account in
establishing whether or not a person consented to being detained
or moved.
4.27 The remaining issues surrounding consent, chiefly the question of what it is to
which V must consent, are discussed below in relation to particular models.
Lawful excuse
4.28 As mentioned above,13 there are several circumstances in which lawful authority
may exist for detaining a person or transporting him or her from one place to
another, even without consent or a belief in consent: for example the duties of
police and prison officers, parental and school discipline and cases in which there
is a defence of necessity.
4.29 Whatever form of offence is created, all these defences ought to apply, whether
or not they are allowed for in the definition, for example by the use of phrases
such as “unlawfully” or “without lawful excuse”. The same is true of defences
such as self defence, lawful defence of property and defence of another.
9
Crimes Act 1969 s 209, set out in Appendix B para B.41.
10
Paras 2.77 and 2.83 above.
11
Para 2.58 above.
12
For the possibility of a “but-for” test in rape, see Gross, “Rape, Moralism and Human
rights” [2007] Criminal Law Review 220; Herring, “Human Rights and Rape: a Reply to
Hyman Gross”, [2007] Criminal Law Review 228. The discussion does not extend to other
offences against the person.
13
72
4.30 A further category of case is that of putative defences, that is, cases where D
mistakenly believes that circumstances exist which would constitute a defence to
the act. As explained in Part 2,14 in some of these cases honest mistake is a
defence while in others reasonable mistake is required: this varies from one type
of defence to another, but is governed by general principles of law that apply
across the spectrum of offences against the person and are not specific to any
one offence. We therefore do not believe that a specific provision should be
made for general defences, including putative defences, in relation to detention or
abduction offences. If those principles need to be reformed, this should be done
in relation to offences in general and not to one offence at a time.
4.31 We discuss the related issue of belief in consent under the heading of fault,
below.15
4.32 We provisionally propose that, in any new offence, detaining or moving a

person should only be criminal if done without lawful excuse, and that the
question of what is a lawful excuse (including the question of putative
defences) should be determined in accordance with the general law
applying to defences to offences against the person.
Fault
4.33 In existing law, the fault requirement for both kidnapping and false imprisonment
is intention or subjective recklessness, in relation to all features of the offence.16
A person who detains or moves another will normally do so in a state of direct (ie
purposive) intention, both as to the nature of the act and as to its consequences
(loss of liberty and being subjected to an unwanted journey): D will act in order to
cause these consequences. Examples of reckless detention or moving can be
devised, though these are unusual.
D organises a demonstration outside a Government building, making

it impossible for anyone to go in or out. D intends to organise the
demonstration, and is reckless as to the possibility that this act
causes loss of liberty (and therefore amounts to detention) because
staff are unable to leave the building.
D, while drunk, commandeers a bus to drive home in regardless of

the presence of V on the upper deck. (The driver has gone for a cup
of tea.) D intends to drive the bus, and is reckless as to the possibility
that there are people upstairs who will be subjected to an unwanted
journey.17
14
15
16
Para 2.141.
17
Compare also the “Joy in the Morning” example, para 2.55, where D drives a car home
and locks it in a garage, not noticing that V is asleep under a blanket in the back seat.
73
D is a lavatory attendant at the public conveniences in a city centre. D
is responsible for locking the entrance at 10 pm. One night D is in a
rush and fails to check carefully whether D has detained anyone in
any of the cubicles. V, who was drunk, had fallen asleep in a cubicle
and is detained overnight. D intended to lock the door, had no
intention to deprive anyone of liberty, but was reckless as to that
consequence.
4.34 In each of these cases, we believe that there is no strong reason to change the
existing rule that subjective recklessness is sufficient to found liability.18
4.35 We provisionally propose that the fault element of any new offence should
be intention or subjective recklessness, both as to the nature of the act and
as to its consequences such as loss of liberty and being required to take an
unwanted journey.
Belief in consent
4.36 The remaining issue concerns the fault required as to V’s consent.
4.37 The issue here is whether the fault element relating to the circumstance of
consent should be subjective or objective. In other words, whether D should
escape liability (i) if D genuinely believed that V was consenting, or (ii) only if D
reasonably held that belief.
4.38 Both standards are found in the present criminal law. In non-sexual offences
against the person such as assault, an honest belief in consent usually suffices to
excuse, as the fault requirement as to consent is subjective. A subjective
approach was formerly also the rule in rape and most other sexual offences
under the Sexual Offences Act 1956, but a test of reasonable belief in consent
has been substituted by the Sexual Offences Act 2003.19
4.39 The basis for the former rule in relation to sexual offences was that consent is not
simply a defence; rather, lack of consent is one of the circumstance elements
forming the essence of the offence. It follows that, if D has a genuine belief,
however unreasonable, that V consents to sex, he is not intending to perform the
act constituting the offence. Similarly, given that he is sure that V consents, he
cannot be said to be (subjectively) reckless as to whether she consents or not.
This is the reasoning described as “inexorable logic” by Lord Hailsham in
Morgan,20 which is the principal authority for the rule in question.
18
In para 4.91 below we consider, but advise against, a scheme with distinct offences of
intentional and reckless deprivation of liberty.
19
Sexual Offences Act 2003 s 1(1)(c) and (2) and ss 75 and 76.
20
As described by Lord Hailsham in DPP v Morgan [1976] AC 182. The issue is discussed in
Ashworth, Principles of Criminal Law (6th ed 2009) section 6.4 (pp 215 to 219).
74
4.40 Following Morgan, the same subjective approach was applied to non-sexual
offences against the person. In assault, as in rape, lack of consent is of the
essence of the offence.21 In cases where injury is caused, there can be no valid
consent outside certain recognised categories such as sport,22 but within these
categories the subjective approach to belief in consent must apply. That is, D is
not liable if he caused injury to V and genuinely but mistakenly believes that he
had V’s consent to the activity that might inflict harm, in circumstances in which
V’s factual consent would be recognised as valid in law. For example, D is not
liable if he mistakenly believes he has V’s consent to rough horseplay.23
4.41 However, it was thought by many that the rule in Morgan was wrong in principle
and liable to yield unsatisfactory results in sexual cases, and the Sexual Offences
Act 2003 reverses the common law rule.24 Under that Act, D is liable for non-
consensual sexual offences unless he held a reasonable belief in consent. The
approach is objective.
4.42 The contrast between subjectivist and objectivist principles of fault has been the
subject of extensive academic comment. In this context, one strong critique of the
subjectivist approach in Morgan was made in an article by Horder.25 In his view,
the choice between the honest belief test and the reasonable belief test should
not depend on the distinction between consent and other excusing
circumstances. Nor, in the case of belief in consent, should it be determined by
whether consent is a defence or lack of consent is an element of the offence.
Rather, the choice follows from moral factors that may cut across both these
distinctions. In a case like Williams,26 where D assaults V under the mistaken
impression that V is attacking a third party, we give credit for the nobility of the
motive and excuse an unreasonable mistake made in the heat of the moment.
Where D under the influence of sexual excitement forms an unreasonable belief
that V consents to sex, we do not feel that the criminal law ought to treat that as a
sufficient excuse.
4.43 The legitimacy of comparing mistakes as to consent with mistakes as to defences

has been impugned by Simester.27 The contrast between Morgan and Williams
arguably crosses too many boundaries to be useful in setting any one of them.
For example, is the relevant distinction that one case concerns consent while the
other concerns defence of others? Or that one concerns sexual offences while
the other concerns assault? Or that, in Williams, the defendant also had to
consider the possible adverse consequences of failing to act, so that (unlike in
sexual cases) it was reasonable to act in a case of genuine doubt?
21
Smith and Hogan (13th ed 2011) para 17.2.1 pp 626 and 627. As shown there, this view is
not undisputed and some prefer to regard consent as a defence.
22
Smith and Hogan (above) para 17.2.1.3 pp 634 to 643.
23
See Smith and Hogan (above) para 17.2.1.3 p 639; Jones [1987] Crim LR 123.
24
For the reasons for this reform, see the Home Office paper “Setting the Boundaries”
(2000), para 2.13.
25
“Cognition, emotion, and criminal culpability” [1990] Law Quarterly Review 469.
26
[1987] 3 All ER 411, (1987) 78 Cr App R 276.
27
“Mistakes in Defence” (1992) 12 Oxford Journal of Legal Studies 295.
75
4.44 As a matter of policy, the point could be made as follows. If an offence is drafted
with a subjective definition of fault generally, and if an element of that offence is
the absence of consent, it follows logically that the approach to belief in consent
must also be subjective. But that does not answer the prior policy question
whether the approach ought to be subjective or not as to all elements of the
offence. There is nothing inconsistent in a fault requirement that is objective in
relation to belief in consent and subjective in relation to belief in the other
ingredients.
4.45 In the case of false imprisonment and kidnapping, and of any offence that may be
proposed to replace them, absence of consent is clearly an essential ingredient:
consent is not simply a defence. If no special provision is made, the test for belief
in consent will therefore be subjective, following the “inexorable logic” element.
That does not prevent a reasonable belief test being imposed by statute, just as it
was in the case of rape, despite the “inexorable logic” argument. Nor does it cast
any light on whether it would be desirable to do so.
4.46 The question here is whether in any offence or offences that may be created to
replace false imprisonment or kidnapping, irrespective of the fault element as to
conduct and consequences, the fault element as to the circumstance of consent
ought to be objective or subjective. In other words, whether D should be excused
only on the basis of a reasonable belief in consent or whether it should suffice
that D had an honestly held belief in consent.
ARGUMENTS FOR A REASONABLE BELIEF TEST

4.47 Arguments that D should only be excused if D had a reasonable belief in consent
can be mounted on the basis that deprivation of liberty, when it occurs, may have
very serious effects on others (such as V’s family) as well as on the individual
detained. D’s intentional interference with V’s liberty should not be a choice taken
lightly.
4.48 There is a further point of resemblance to sexual offences, namely that consent is
easily ascertained because D and V are in close physical proximity.28 There is
therefore very little excuse for D failing to take steps to verify consent. On the
other hand, in many cases one could argue that V has the opportunity to make
the lack of consent known, and that D will find it hard to make a jury believe that
there was scope for even an unreasonable mistake. Unlike in rape, lack of
consent to detention or taking away may be communicated at any stage: there is
less likely to be one crucial moment after which it is too late.
4.49 In mistaken self-defence cases, it can be argued that D ought to be permitted to

make unreasonable mistakes because, as noted above, D’s decision not to act in
a case where D doubts whether D has reasonable grounds for self defence may
result in consequences as grave as if D had acted. This is unlikely to be so in a
case of mistaken belief in consent.
28
This may not always be the case if it is decided to omit the requirement that D
accompanies V.
76
ARGUMENTS AGAINST A REASONABLE BELIEF TEST
4.50 The arguments against an objective approach include that it will create
incoherence with other offences against the person and that the policy reasons
for imposing an objective test in sexual offences are not present in the case of
kidnapping.
4.51 A reasonable belief test, if imposed, will apply to all instances of any offence or
offences proposed to replace false imprisonment and kidnapping. This will
include some fairly trivial instances, such as where one school child detains
another on a bus for a few stops after the intended destination. It would be
irrational to treat these cases differently from assault. In existing law assault and
false imprisonment are closely related, both being based on trespass against the
person. In a particular case assault and detention or moving may occur together
and may even be constituted by the same physical act, and it would be confusing
for a jury to have to apply two different tests.
4.52 Non-consensual sexual offences might be seen as a unique category of offence

because the infringement of the autonomy and dignity of the victim is always
severe, the consequences of a mistaken belief in consent are always serious and
the consequences of desisting under a mistaken belief that V does not consent
are never serious. It is therefore reasonable to impose a special duty on D to
make sure of his ground. None of these arguments (except perhaps the point
about the consequences of desisting) applies to false imprisonment or
kidnapping.
4.53 This point may be illustrated by the arguments raised against the subjective test
in the “Setting the Boundaries” paper which explored the policy issues informing
the Sexual Offences Act.29 These are:
It [the subjective test] implicitly authorises the assumption of consent,

regardless of the views of the victim, or whatever they say or do.
It encourages people to adhere to myths about sexual behaviour and

in particular that all women like to be overborne by a dominant male,
and that “no” really means “yes”. It undermines the fundamental
concept of sexual autonomy.
The mistaken belief arises in a situation where it is easy to seek

consent and the cost to the victim of the forced penetration is very
high. It is not unfair to any person to make them take care that their
partner is consenting and be at risk of a prosecution if they do not do
so.
There is no justice in a situation whereby a woman (or a man) who

has been raped in fact (because she or he did not consent) sees an
assailant go free because of a belief system that society as a whole
would find unreasonable – for example that he saw some or all
women (or women of certain types) as sexual objects.
It is easy to raise the defence but hard to disprove it.
29
See n 24 above.
77
The Youth Justice and Criminal Evidence Act 1999 limits the use of a
complainant’s sexual history in court. One of the exceptional cases
where it may be introduced is when the defence of honest belief in
consent is raised and sexual history is relevant to that belief. The
concern is that this provision will significantly increase the use of the
honest belief defence because that would open the door to
introducing the element of previous sexual history as part of the
defence, allowing cross-examination of the complainant on this issue.
With the possible exception of the arguments about the ease of seeking consent
and about the defence being easy to raise but hard to disprove, none of these
arguments has any application to detention or kidnapping.
4.54 Furthermore, the type of objective test to be applied would be open to debate.
The definition of the fault element as to consent in section 1(1)(b) of the Sexual
Offences Act 2003, which is the model most likely to be adopted if any, has given
rise to controversy and has yet to be defined with clarity by the appellate courts.
Section 1 requires the prosecution to prove that D does not reasonably believe
that V consents. By subsection (2) “whether a belief is reasonable is to be
determined having regard to all the circumstances, including any steps [D] has
taken to ascertain whether [V] consents”. It is unclear whether the test is properly
understood as requiring proof only that a reasonable person would have realised
there was no consent in the circumstances in which D found himself, or whether it
is necessary to rebut the defendant’s claim that it was reasonable for him to hold
that belief. This difficulty was recognised, but left unresolved, recently by Lord
Justice Pitchford in R v MM.30 His lordship stated at [53]:
There is, we recognise, an interesting argument to be addressed as

to whether there is a material difference between (1) an honest belief
held by a defendant which may have been reasonable in the
circumstances and (2) a belief which a reasonable man, placed in the
defendant’s circumstances, may have held. A statutory reasonable
man test was held by the Privy Council in A-G for Jersey v Holley31 to
be stricter than the ‘looser’ concept of an honest belief which was
reasonable in the circumstances (see the opinion of Lord Nicholls,
particularly at paras 17-25). In the latter case it is arguable that the
circumstances may include a mental illness which materially affected
the defendant’s ability to interpret the complainant's lack of consent.
This, however, is not the time to engage in that argument since, on
the facts of this case, a permissive construction of the section would
not have availed this appellant.
4.55 Consultees are asked whether in any new offence the requirement of fault
as to the circumstance of V’s lack of consent should be:
(1) a requirement that D reasonably believed in V’s consent to the act;

or
(2) a requirement that D genuinely believed in V’s consent to the act.

30
[2011] EWCA Crim 1291.
31
[2005] AC 580 (PC).
78
Procedural issues
4.56 The offences of kidnapping and false imprisonment are presently triable only on
indictment – that is they can be tried only in the Crown Court and not in a
magistrates’ court. This position reflects the historical origins of the offences at
common law. In contrast, only a few offences against the person are triable only
on indictment. The offence of intentionally causing grievous bodily harm contrary
to section 18 of the Offences against the Person Act 1861 is one such offence.
Most of the other offences against the person are triable either way (in the Crown
Court or a magistrates’ court) depending on the seriousness of the offence and
all the relevant circumstances. Examples of triable either way offences include
the offence under section 20 of the 1861 Act of malicious wounding or inflicting
grievous bodily harm and that under section 47 of occasioning actual bodily
harm. Both are serious offences, carrying maximum sentence of 5 years’
imprisonment if tried in the Crown Court.
4.57 We consider that there are arguments for making the proposed replacement
offence for kidnapping and false imprisonment triable either way. First, this would
reflect the position in relation to all but the most serious offences against the
person such as that under section 18 of the 1861 Act.
4.58 Secondly, we can readily conceive of examples where the conduct that would fall
within the definition of the offence (whichever model is proposed) would be
suitable for trial in the magistrates’ court with the more limited sentencing powers
available to that court. As we have seen,32 in existing law 21% of sentences for
kidnapping and false imprisonment are non-custodial or are for terms of 6 months
or less.
Example, D1 and D2, young adults travelling on a bus, decide “as a

joke” to detain V on the bus against V’s will, so that V misses V’s stop
and has to walk back from the next one some considerable distance
further along the route.
The conduct involved is an unpleasant form of bullying, and may warrant criminal
prosecution,33 but we doubt whether it would merit a Crown Court trial with the
cost and delay that process entails.
4.59 Thirdly, making the offence one that is triable either way may have benefits for
the prosecution. There may currently exist cases in which the conduct is not so
serious that a charge of kidnapping is felt to be appropriate (as with the bus
bullying above), but the alternative is to bring no prosecution at all, or to charge a
low level offence against the person or a public order offence that, whilst not
accurately describing the conduct, at least avoids an expensive and time-
consuming Crown Court trial. It would be preferable if it were possible to bring a
charge which accurately describes what has taken place and can be tried in a
magistrates’ court.
32
Para 2.4 above.
33
It is easy to see how the public interest in prosecution would be met, if for example the
victim was a vulnerable person or the bullying was founded on V’s disability.
79
4.60 Fourthly, for the defence, the benefit of a triable either way offence will be that in
less serious cases the mode of trial procedure will allow the defendant the
opportunity to plead guilty and to persuade the magistrates to retain jurisdiction
for sentencing.
4.61 As against these arguments, it could be urged that at present kidnapping is an

offence, and a word, carrying a uniquely powerful stigma, and that most
examples of it involve a serious attack on an individual’s dignity and autonomy.
Allowing the new offence to be tried in a magistrates’ court may be perceived as
trivialising it. If the kidnapping label is lost, changing the mode of trial at the same
time will appear to dilute the offence still further. If the label is retained, it would
appear strange for “kidnapping” to be triable in a magistrates’ court.
4.62 Another argument against making the new offence or offences triable either way
is that it may have unintended consequences. At present some fairly trivial cases
are prosecuted, such as the bullying cases described above:34 we may infer that
many more such cases are reported but are not thought worth the trouble and
expense of a Crown Court prosecution. Allowing trial in a magistrates’ court could
encourage the bringing of more prosecutions in these minor cases and increase
the burden on the criminal justice system.35
4.63 We provisionally propose that the offences replacing kidnapping and false
imprisonment should, under whichever model is adopted from those
provisionally proposed below, be triable either way. We seek consultees’
views.
4.64 We do not at this stage propose any scheme for differentiating the types of
offending that ought to be tried in a magistrates’ court as opposed to in the Crown
Court. We consider that the matter of appropriate allocation can be left to the
normal mode of trial process.36 This is the position with many offences including
for example, fraud, theft, and assault occasioning actual bodily harm. As an
alternative, it would be possible to devise a scheme for identifying certain
categories of case which, presumptively or automatically, had to be tried in the
Crown Court. The bases on which such categories could be defined could include
the presence of aggravating features such as the use of a weapon or the
vulnerability of the victim.
MODELS FOR THE OFFENCE OR OFFENCES

4.65 The questions we address here include whether there should be one offence or
two; if there are two offences, whether they should be distinguished as detention
and abduction respectively or by degree of seriousness; if by degree of
seriousness, whether this should follow the level of fault or the presence of
aggravating factors. All the models we discuss involve abolishing the common
law offences of false imprisonment and kidnapping.
34
Para 4.58.
35
On the other hand, on the argument of para 4.59 it is not undesirable that these cases
should be prosecuted but only that they should be prosecuted as kidnapping.
36
See Blackstone’s Criminal Practice (2011) Part D6.
80
Model 1: one offence
4.66 In this model, both false imprisonment and kidnapping would be replaced by a
single offence of deprivation of liberty. This offence might be worded something
like the following.
A person who intentionally or recklessly deprives another of his

freedom of movement without that person’s consent and without
lawful excuse is guilty of the offence of [unlawful detention].
4.67 The above wording is a suggestion only, as there are many other possibilities.
One such possibility is that contained in the draft Criminal Code prepared by the
Criminal Law Codification Advisory Committee for the Republic of Ireland,37 which
reads:
3206.—(1) A person commits the offence of false imprisonment if he

or she intentionally, knowingly or recklessly—
(a) takes or detains,
(b) causes to be taken or detained, or
(c) otherwise restricts the personal liberty of,
another without that other’s consent.
4.68 This model satisfied the elements identified above: it is focused on the relevant
conduct of D that causes the harm amounting to a loss of liberty, and includes the
relevant elements of fault, consent and lawful excuse.
4.69 The advantage of this model is simplicity. It covers all instances of detention and
the more serious instances of abduction, while excluding cases in which V is
simply sent on a fool’s errand. A related advantage is that it avoids disputes
about whether D should be charged with false imprisonment or kidnapping, and
whether kidnapping needs to cause loss of liberty during its course or later. As in
all the proposed models, there is no separate requirement of force or fraud. Both
the problems mentioned in paragraph 4.1, namely the problem of abduction
without force or fraud and the problem of movement followed by
confinement, are therefore solved.
4.70 As in all the models, the absence of consent would be a central element. In this
model, it would be very straightforward in application. Consent to loss of liberty
would be the sole question. The question of whether the journey itself was an
unwanted one, apart from the means used to make V take it or its results in the
form of captivity, would not arise.
37
Appendix B para B.46 below.
81
Example. V, as part of a collusive ransom fraud, agrees to be taken
from home, tied up in the back of a van, driven to Manchester and
held there till the ransom is paid. In fact the van is driven to Liverpool.
On the one-offence model, this is not an offence, as V has consented
to the deprivation of freedom of movement and has only not
consented to the destination. However, it becomes an offence if V
continues to be held after noticing that they are in the wrong place
and demanding to be released.
4.71 Equally straightforward would be the relevant fault elements. The same standard
of fault would apply to all instances. In the one-offence model, as in the existing
offence of false imprisonment, the offence would be largely based on
consequences rather than on the exact nature of D’s conduct. There would be
the possibility of defining the fault element as to circumstances of V’s lack of
consent in either objective or subjective terms (ie either that D must reasonably
believe in consent or that D must genuinely believe in consent). Neither would
overcomplicate the offence.
4.72 The harm targeted by the new offence would also be clear: loss of freedom of
movement. The definition of the offence would be directed solely to this harm,
other harms being relevant only to sentencing. It would be immaterial whether the
loss of liberty occurred while V was in motion or at rest. However, simply causing
V to go on an unwanted journey would not constitute the offence, as this does not
in itself imply a sufficient loss of liberty.38
4.73 The principal disadvantage is one of labelling. The term “kidnapping” carries a
strong stigma, which is apt to single out the more serious offences against liberty.
For some people, having just one offence, even though adequate in coverage
and sentencing powers, might appear comparatively colourless and fail to respect
a public perception that kidnapping should be distinguished as worse than
ordinary unlawful detention. The labelling problem is not readily solved by calling
the new single offence “kidnapping” as that risks diluting the impact of that word
by applying it to too many instances.
4.74 A related disadvantage of this option is that it may be considered to be over-

simplistic and not to recognise the distinctive wrongs involved in abducting and
detaining. Similarly, it conveys the impression that deprivation of liberty is the
sole harm with which the offence is concerned, whereas in practice the victim of
abduction may also be subjected to additional harms, such as the fear of being in
an unknown place. Loss of liberty may be suitable as a threshold harm, to
distinguish those instances that should be criminal from those that should not, but
it might not always express the true nature of the victim’s experience.
38
Para 4.15 above.
82
4.75 Arguably, this option leaves too many important facts to be determined by the
judge in a Newton hearing, rather than by the jury at the trial. (A Newton hearing
is a hearing conducted before a judge without a jury, following conviction, to
decide between conflicting factual accounts between the parties which are
relevant to sentencing. These usually arise when defendant pleads guilty to an
offence but factual issues remain unresolved.) For example, if D is found guilty of
abduction but claims that he was only trying to frighten V, while the prosecution
alleges that D intended to murder V, the two accounts amount to substantially
different offences between which the jury should have the chance to choose.
4.76 One further potential problem is that questions may arise about whether a victim
who is a baby or a paralysed person can be deprived of freedom of movement.
The test should be, and the definition would need to make clear, that D subjected
V to an external constraint that would prevent an able person in V’s position from
leaving: it should be irrelevant that V is also subject to an internal constraint. As
we have seen, in existing law false imprisonment can be committed when V is
asleep.39 This is largely a drafting problem, and would be avoided by wording
such as that in the draft Irish Criminal Code, cited above.
Model 2: two offences, detention and abduction

4.77 This model would involve creating separate offences for detention and
kidnapping or abduction, that is:
(1) the intentional or reckless detention of one person by another, without

the consent of the person detained and without lawful excuse; and
(2) the intentional or reckless abduction of one person by another, without

the consent of the person abducted and without lawful excuse.
For reasons which will become apparent, this is no more than an outline and will
need considerable refinement to become a workable definition of the offences.
Detention
4.78 The concept of detention is reasonably unambiguous and can be used without
further attempts to define it. The potential uncertainty whether it can be
committed by fraud as well as by force can be removed if the offence is defined in
such a way that it is clear that it can be committed by fraud if the intended, and
actual, effect of the fraud is that V believes that V cannot leave the place of
confinement.40
39
Para 2.162 above.
40
In fleshing out the detail of the offence, it will be necessary to discuss whether V’s belief
would have to be a reasonable one given the fraud, and whether D needs to be aware that
the fraud is likely to cause this reaction in V.
83
Abduction
4.79 Significant difficulties do however arise in defining the abduction offence. It would
be a necessary (but perhaps not sufficient) condition that V is made to go from
one place to another without consent. As mentioned above,41 there are many
variations of this.
(1) At the lowest level there are the pure fool’s errand cases, where D
induces V (say by fraud) to make an unwanted journey, whether or not in
the company of D. Arguably this is no different from inducing V to
undertake any other unwanted action. The main harm to V in these cases
is not so much loss of liberty as waste of time and effort, and possible
humiliation.
(2) Further along the spectrum are cases of the Wellard42 type, where V’s
freedom of movement is genuinely removed or pre-empted, because V
has or feels43 V has no option but to go where V is told. Here D has
caused a loss of freedom, in the same sense as in the detention cases
though perhaps in not so obvious a form. There will also be loss of time,
and there may or may not be other harms such as fear.
(3) Another category is those cases where D, whether by fraud or pure

enticement, induces V to go from one place to another and V is confined
on arrival at the destination. Here the harms are basically the same as in
detention, but perhaps with the added fear caused by being in a strange
place.
(4) At the highest level are the full-scale snatching cases, where D physically
overpowers V and V is in genuine captivity throughout the journey,
whether or not V is also confined at the end of it. Again there is loss of
liberty, but the associated harms (fear, loss of dignity, exposure to
violence) are present in a high degree and may be more important to V
than the loss of liberty.
(5) Finally, there could in theory be cases where loss of liberty is present in
too low a degree to justify criminalisation on its own but the other harms,
such as fear and exposure to ransom demands, are sufficient to bring the
case into the criminal category. This will mainly apply to cases of sending
a person abroad.
4.80 The question is whether an offence of abduction should encompass every one of
these instances of causing a person to go from one place to another (subject to
any defence of consent or lawful excuse) or whether it needs to be restricted by
some further requirement to prevent overcriminalisation.
41
42
Para 2.13.
43
See n 40 above.
84
4.81 We consider that an offence based on the imposition of an unwanted journey,
without further qualification, would indeed be too wide. It would include all five of
the variations in paragraph 4.79, in particular the sending of V on a fool’s errand.
As argued above,44 this harm is not in itself sufficient to justify criminalisation.
4.82 A second, narrower, approach to defining abduction would be to base that

element on a requirement of “carrying” or “taking” V from one place to another.
This would imply that there must be compulsion and that causing V to travel
unaccompanied by D or D’s agent does not suffice. This may be too narrow, for
the following reasons.
(1) It implies that D must accompany V; or rather, compel V to accompany

D. Thus, if D pulls V into a railway carriage with D and stays with V till the
destination is reached, that will be kidnapping. But if D locks V into the
carriage and arranges for a confederate to take V out at the other end, it
will not (though it will amount to detention). Arguably this distinction is
arbitrary, as the harm suffered by V is the same, and D’s wrongful
purpose is the same whether D is present or not.
(2) It places too much importance on the order of events. If D forcibly takes
V to a destination and confines V there, that will be kidnapping. But if D
sends or entices V there by fraud and then captures and confines V, that
will not, though once more it will be a detention offence. Yet the harm
suffered by V is similar in both cases: V has been subjected to an
unwanted journey and has been deprived of liberty. The only difference is
in the mechanics.
In both respects, it reinstates the problems with the law of kidnapping that we
have identified in Part 3.45
4.83 In identifying the appropriate limits of the abduction offence, the harm that should
be targeted is not simply having been caused to go to a place where one does
not wish to be: it is a complex harm combining an unwanted journey with loss of
liberty. If so, it should not matter whether the harms were experienced together or
in sequence, or in which order, provided that they result from the same course of
conduct.
4.84 The principal disadvantages of this model are: first the difficulty in defining
abduction; second, that there would be arbitrary distinctions on the border
between the detention and abduction offences; and third, difficulties in dealing
with cases involving both moving and stationary phases of the same operation.
As argued in Part 3, a case where a person is captured and held for ransom is
recognisably kidnapping in the popular sense of that word: it seems artificial and
counter-intuitive that the offence ends as soon as the place of confinement is
reached.
4.85 However, these disadvantages will not produce the unsatisfactory practical
consequences of the existing law. This is for two reasons.
44
45
Paras 3.25 to 3.31 above (for accompanying); paras 3.3 to 3.14 (for order of events).
85
(1) Cases involving detention following enticement by fraud or otherwise
may fall outside the abduction offence, but can be prosecuted under the
detention offence; and unlike in existing law the two offences will be of
equal status and gravity. In cases of doubt both can be charged together.
(2) In all the models we are now considering, the requirement of force or
fraud, as a distinct element from that of lack of consent, has been
removed. This will avoid the problem mentioned in Part 3, whereby the
enticement of a child or mentally impaired person to a place of
confinement does not at present amount to kidnapping, because there is
no force or fraud until the journey is over. If however a narrow definition
of abduction is used, involving compulsion,46 the force or fraud
requirement will in effect have been reinstated under another name and
the case will still fall outside kidnapping, because the child or mentally
impaired person has not been compelled.
It would also be possible to overcome this problem by specifically defining the

conduct element of the abduction offence as including any period of confinement
following the abduction. A possible draft is provided below.47
4.86 In summary, the purpose of distinguishing detention from abduction should be to

distinguish those courses of conduct that involve abduction from those that do
not. It should not be to distinguish the detention and abduction phases of the
same course of conduct. The course of conduct should constitute kidnapping if its
overall effect is to leave V in a different place from that in which D found V, and V
was deprived of liberty at some stage.
4.87 In conclusion, in this model:
(1) the problem of abduction without force or fraud48 would be solved,

provided that the taking by compulsion definition is not used;
(2) the problem of moving followed by confinement49 remains a concern but

can be solved by sufficiently careful drafting.
Fault
4.88 The basic action underlying these types of offence is normally carried out
intentionally: one may be reckless as to the circumstances which prevail or the
consequences of the action. However, the very terms “detain” and “move” imply a
consequence as well as a type of action: in that sense one can be reckless as to
whether one detains or moves another.50 We propose that:
46
As in para 4.82 above.
47
Para 4.89.
48
Para 4.1(1).
49
Para 4.1(2).
50
Para 4.33 above.
86
(1) as the detention offence may consist of any action which has the effect of
depriving V of freedom of movement, it should require that D either
intends to deprive V of freedom of movement or is (subjectively)
recklessness as to whether such deprivation results;
(2) in the case of abduction, D must intend or be (subjectively) reckless both

about the fact that D’s action will cause V to be moved at all and about
any loss of freedom of movement occurring during or after the journey.
4.89 Given the above discussion, the two offences may be refined to look somewhat
like the following, though once more it should be emphasised that we are not at
this stage providing anything like a draft statute.
(1) Statutory false imprisonment is committed where D intentionally or

recklessly detains V, without the consent of V and without lawful excuse.
(2) Statutory kidnapping is committed where D:
(a) intentionally or recklessly sends, takes or carries V, or does

anything which results in V going or being sent, taken or carried,
from one place to another; and
(b) in connection with or as a consequence of that sending, taking,

carrying or other action, intentionally or recklessly deprives V of
freedom of movement;
without the consent of V and without lawful excuse.
Model 3: two offences, basic and aggravated

4.90 Model 1 contains just one offence, while Model 2 contains two offences of equal
gravity. The remaining possibility is a vertical scheme, with a more serious and a
less serious offence: this would have the advantage of retaining the stigma of
“kidnapping” for the most serious cases.
4.91 One possibility would be to distinguish by degrees of fault, for example by having
one offence of reckless deprivation of liberty and one of intentional deprivation of
liberty. This pattern is found elsewhere in the criminal law, for example in the
distinction between murder and manslaughter, and between the offences under
sections 18 and 20 of the Offences Against the Person Act 1861. As we have
seen, however, while reckless deprivation of liberty can occur, the examples are
marginal and unlikely and most detentions and abductions are likely to be
intentional.51 Distinguishing by reference to intention will therefore not achieve the
object of isolating the exceptionally serious examples from the rest.
51
87
4.92 Our final model follows an approach found in previous law reform proposals,52 the
legislation of more than one Commonwealth country53 and the United States
Model Criminal Code.54 This approach reflects the arguments (i) that it is
important to keep the label “kidnapping” for the most serious cases and (ii) that
neither the distinction between abduction and detention nor that between
recklessness and intention is quite sufficient for this purpose. Kidnapping is
therefore defined as detention or abduction (or sometimes abduction only) where
any of a list of aggravating factors is present: usually the intention to commit
another offence.
4.93 The basic offence would be one of deprivation of liberty (by detention or
abduction), as in Model 1. The more serious offence would be detention or
abduction aggravated by any of a list of factors: we discuss below55 whether this
offence should include the same loss of liberty requirement as the basic offence.
4.94 The rationale for this model is that while, as we have said, the moving of V is a
different type of wrong from merely detaining V and will often involve more of the
additional harms (fear, loss of dignity, loss of time, economic loss, distress to
one’s family and vulnerability to physical or psychological abuse), this is not
necessarily true in every case. On this reasoning it would be better for any
kidnapping offence to target these additional harms directly rather than by way of
a presumption that they are more likely to occur in cases where V is moved.
4.95 The aggravating factors in the different schemes mentioned above are as follows.
(1) In the Criminal Law Reform Committee’s 1976 proposals, the intention of
holding the person to ransom or as a hostage, the intention of sending
him or her out of the realm, the use of drugs, force or the threat of injury.
(2) In the draft Criminal Code of 1989, the intention to hold the person to
ransom or as a hostage, to send him or her out of the United Kingdom or
to commit an [arrestable]56 offence.
(3) In New South Wales, committing the crime in company with others,
inflicting actual bodily harm or (in the specially aggravated form) both.
(4) In Victoria, the intention to demand ransom or obtain some other

advantage.
(5) In the other Australian states, the intention to gain anything or procure
anything to be done, the use of threats being a further aggravation.
(6) In Canada, the fact of “kidnapping” (presumably in the English sense)57

combined with intention to imprison, send out of the country or hold to
ransom or in service.
52
Appendix A.
53
Appendix B.
54
55
Para 4.103.
56
That category has now been abolished.
88
(7) In New Zealand, intention to imprison, send out of the country or hold to
ransom or in service.
4.96 Out of these, the recurrent aggravating factors consist of the intention to engage
in any of the following types of conduct:
(1) the infliction or threat of force or actual bodily harm;
(2) obtaining or demanding ransom or some other advantage;
(3) holding V in service;
(4) sending V out of the country.
A similar list could form part of Model 3.
4.97 On this approach, kidnapping would be an offence of intention as opposed to

recklessness. The aggravating factors all reflect distinct wrongs consisting of the
intention to engage in certain forms of conduct, either in order to capture V or
while V is in custody. This intention cannot logically be formed unless D either
believes that D has V in his custody or intends to capture V. This fact further
serves to underline the greater seriousness of kidnapping compared with the
basic offence of detention or false imprisonment, which may be merely reckless.
4.98 The full kidnapping offence would be committed whether the types of conduct
referred to in the aggravating factors were performed or merely intended.58
Inchoate offences such as attempt and conspiracy to kidnap would require the
intention to deprive V of liberty together with the intention to engage in the
relevant conduct.
4.99 The advantage of this model is that it reserves the label “kidnapping” for the most
serious examples, which the public would recognise as deserving it. At the same
time, it uncouples the distinction between the more serious offence and the less
serious offence from that between abduction and detention; and since the basic
offence would include minor cases, it would be possible to consider making it
triable either way rather than on indictment only.59 Like Model 1, it avoids artificial
distinctions on the boundary between the detention and abduction phases of a
course of conduct. If an aggravating factor is present each will constitute
kidnapping; if there is no aggravating factor each will constitute the lesser
offence.
57
Which must include transporting a person from one place to another: Karpenko, Mayo,
George and Mayo 2005 MBQB 40, para B.21 below.
58
It would be possible to provide an alternative mode of commission, on the model of
burglary, namely that D, having deprived V of liberty, proceeds to engage in those types of
conduct, but we believe that this would merely complicate matters. (Theft Act 1968 s 9
defines burglary as either entering as a trespasser with the intent to commit certain
offences or the committing of certain offences by one who has entered as a trespasser.)
59
89
Example. D invites V to D’s flat without any use of force or fraud and
V comes willingly. D then locks V in and keeps V there for weeks
while making repeated ransom demands. In existing law this is false
imprisonment but not kidnapping. Arguably it should carry the same
odium as kidnapping, and if two offences are to be created it should
fall within the more serious of the two.
Example. D is taking V, his girlfriend, out on a date in his car. They

get into an argument; D drives the car round the neighbourhood and
refuses to let her out until he has finished saying what he wants to
say. Technically this would at present be kidnapping; but the
experience which V has undergone is no different from that of false
imprisonment.
4.100 The main disadvantage of this model is its complexity. It could further be argued
that this complexity is unnecessary. Since most of the aggravating factors consist
of the intention to commit an existing offence in English law, it would be easier to
charge the basic detention or abduction offence together with attempt to commit
the other offence (or the offence itself, if the intention is fulfilled). As concerns
abduction cases where aggravating factors are not present, it has the same
disadvantage as Model 1, of trying to explain abduction on the analogy of
detention rather than as a separate wrong, though as argued above60 the loss of
liberty test is useful in excluding the fool’s errand cases.
4.101 A second disadvantage of distinguishing between basic and aggravated offences

is the danger of wrong charging: if a person is charged with the basic offence and
the facts that emerge at the trial would justify conviction for the aggravated
offence, the possible sentence is limited to that for the basic offence. It would be
simpler to have one offence, as in Model 1, spanning the whole range of possible
sentences, and for the aggravating factors to be reflected in sentencing
guidelines.61
4.102 A third disadvantage is that the choice of aggravating factors is necessarily rather
arbitrary: for example some might ask why the list includes intent to cause bodily
harm but not to commit murder or rape. We emphasise that the list set out above,
drawn from the factors most commonly found in Commonwealth legislation and
previous law reform proposals, is given simply by way of example and that we
invite suggestions for additional factors or entirely different lists.
4.103 One final difficulty would lie in identifying how to incorporate a loss of liberty test
in the two offences within Model 3. As the basic offence would be defined as
deprivation of liberty, as in Model 1, a loss of liberty test would be present
automatically in that offence. For the more serious offence there are two choices.
(1) The more serious offence could follow the basic offence, with the addition
of the aggravating factors.
60
Para 4.15.
61
Sentencing guidelines are prepared by the Sentencing Council set up by Part 4 of the
Coroners and Justice Act 2009.
90
(2) Alternatively it could be defined as any detention or moving where the
aggravating factors are present, whether or not V suffers a loss of liberty.
This would mainly cover cases where V is caused to go abroad without
the use of physical compulsion or other means of confinement.62
4.104 The argument for this last possibility is that, within the more serious offence,
moving can be treated independently of detention with no risk of criminalising the
mere fool’s errand cases, as the aggravating factor will be sufficient in itself to
show that seriously criminal behaviour is present.
4.105 The argument against it is that, under this scheme, the greater offence will not
always include the lesser and that it will not be possible to convict of the lesser
offence if the greater is charged but not made out; though this problem can be
obviated by charging the two offences together. That presents its own
disadvantages in practical terms. From a more conceptual point of view, omitting
the loss of liberty test from the more serious offence is inelegant: the listed
factors will be not aggravations but conditions making the difference between full
kidnapping and no offence at all.
4.106 As in all the models, there would be no separate requirement of force or fraud,
apart from those particular applications of force that form part of the aggravated
offence. As in Model 1, there is no distinction between the stationary and the
moving forms or phases of conduct causing a loss of liberty. This model therefore
solves both the problems mentioned in paragraph 4.1 above, namely abduction
without force or fraud and moving followed by confinement.
THE CHOICE
Model 1
4.107 A single offence of deprivation of liberty, possibly defined as follows.
A person who intentionally or recklessly deprives another of his

freedom of movement without that person’s consent and without
lawful excuse is guilty of the offence of [unlawful detention].63
Model 2
4.108 Two offences, as follows.
(1) Statutory false imprisonment, defined as the intentional or reckless

detention of one person by another, without the consent of the person
detained and without lawful excuse.
(2) Statutory kidnapping, which exists where one person:
(a) intentionally or recklessly sends, takes or carries another, or does

anything which results in that other going or being sent, taken or
carried, from one place to another; and
62
Para 4.16(2) above.
63
91
(b) in connection with or as a consequence of that sending, taking,
carrying or other action, intentionally or recklessly deprives that
other of freedom of movement;
without the consent of the person taken, carried or detained and without
lawful excuse.64
Model 3
4.109 Two offences, as follows.
(1) A basic offence of intentional or reckless deprivation of liberty by

detention or abduction, as in Model 1.
(2) A more serious offence of kidnapping, defined as detention or abduction

with the intention of engaging in any of the following forms of conduct,
namely:
(a) the infliction or threat of force or actual bodily harm;
(b) obtaining or demanding ransom or some other advantage;
(c) holding the person detained or abducted in service;
(d) sending that person out of the country.65
4.110 We do not propose any one of these models in preference to the rest.
Consultees are asked if they have any preference among these models.
They are also invited to suggest models other than these.
64
65
92
PART 5
QUESTIONS FOR CONSULTATION
5.1 We provisionally propose that the existing common law offences of false
imprisonment and kidnapping should be abolished and replaced by one or more
statutory offences. (Paragraph 4.4)
Consent, force and fraud

5.2 We provisionally propose that:
(1) lack of consent should be a condition of liability in any new offence that
may be created to replace false imprisonment or kidnapping; and
(2) any such offence should contain no separate requirement of force or

fraud, but force and fraud should be taken into account in establishing
whether or not a person consented to being detained or moved.
(Paragraph 4.26)
Lawful excuse
5.3 We provisionally propose that, in any new offence, detaining or moving a person
should only be criminal if done without lawful excuse, and that the question of
what is a lawful excuse (including the question of putative defences) should be
determined in accordance with the general law applying to offences against the
person. (Paragraph 4.32)
Fault
5.4 We provisionally propose that the fault element of any new offence should be
intention or subjective recklessness, both as to the nature of the act and as to its
consequences such as loss of liberty and being required to take an unwanted
journey. (Paragraph 4.35)
5.5 Consultees are asked whether in any new offence the requirement of fault as to
the circumstance of V’s lack of consent should be either :
(1) A requirement that D reasonably believed in V’s consent to the act
(2) A requirement that D genuinely believed in V’s consent to the act.

(Paragraph 4.55)
Triable either way

5.6 We provisionally propose that the offences replacing kidnapping and false
imprisonment should, under whichever model is adopted from those provisionally
proposed below, become triable either way. We seek consultees’ views.
(Paragraph 4.63)
Models for the new offence or offences

5.7 Consultees are asked to comment on the merits of the following models.
93
(1) Model 1: a single offence of intentionally or recklessly depriving another
person of freedom of movement without that person’s consent and
without lawful excuse. (Paragraph 4.107)
(2) Model 2: two offences, one of unlawful detention and the other of
unlawful abduction. (Paragraph 4.108)
(3) Model 3: one basic offence, defined as in Model 1, and one aggravated
offence, defined as detention or abduction with the intention to inflict
force or bodily harm, obtain or demand ransom or another advantage,
hold the victim in service or send the victim out of the country.
(Paragraph 4.109)
5.8 Consultees are also invited to suggest models other than these. (Paragraph
4.110)
94
APPENDIX A
PREVIOUS REFORM PROPOSALS
A.1 There have been two proposals for the reform of false imprisonment and
kidnapping in the last few decades.
A.2 The Criminal Law Revision Committee’s 1976 Working Paper on Offences
against the Person suggested replacement of all detention and abduction
offences.1 There would be five new offences, as follows.
(1) Unlawful detention (maximum 3 years’ imprisonment).
(2) Kidnapping, meaning unlawful detention aggravated by:
(a) the intention of holding to ransom or as a hostage;
(b) the intention of sending the person out of the realm;
(c) the use of drugs, force or the threat of injury.
(3) Taking a child under 14 out of the custody of its parents or guardians.
(4) Abduction of a child under 14 with the intention of holding it to ransom or

as a hostage or of sending it out of the realm (this was necessary to
cover cases where the child consents and therefore kidnapping cannot
be charged).
(5) Abduction of a child with intent to commit a sexual offence.
A.3 These recommendations were never implemented, though a fresh code of child
abduction offences was adopted in 1984 and overhauled in 1989.2
A.4 The relevant clauses of the 1989 draft Criminal Code3 read as follows.
Interpretation
79. For the purposes of sections 80 to 85—
(a) a person takes another if he causes the other to accompany

him or a third person or causes him to be taken;
(b) a person detains another if he causes the other to remain

where he is;
(c) a person sends another if he causes the other to be sent; and
1
The recommendations are discussed in more detail by Napier, “Detention Offences at
Common Law”, in Glazebrook, Reshaping the Criminal Law (1978) 190 at pp 197 to 198.
2
Para C.2 and following, below.
3
Criminal Law: a Criminal Code for England and Wales (1989) Law Com No 177.
95
(d) a person acts without the consent of another if he obtains the
other’s consent —
(i) by force or threat of force; or
(ii) by deception causing the other to believe that he is under

legal compulsion to consent.
Unlawful detention
80.—(1) A person is guilty of unlawful detention if he intentionally or

recklessly takes or detains another without that other’s consent.
(2) A person is not guilty of an offence under this section if the

person taken or detained is, or he believes him to be, a child under
the age of sixteen and—
(a) he has, or believes he has, lawful control of the child; or
(b) he has, or believes he has, the consent of a person who has,

or whom he believes to have, lawful control of the child, or he
believes that he would have that consent if the person were
aware of all the relevant circumstances.
Kidnapping
81. A person is guilty of kidnapping if he intentionally or recklessly

takes or detains another without that other’s consent, intending—
(a) to hold him to ransom or as a hostage; or
(b) to send him out of the United Kingdom; or
(c) to commit an arrestable offence.
A.5 For the purpose of these offences, “without consent” is defined as including
cases where the consent is obtained by force or threat of force, or by deception
causing the other to believe that he is under legal compulsion to consent.
Scotland
A.6 In 2003 a draft Code published under the auspices of the Scottish Law
Commission proposed a revised offence of abduction.4
Abduction
45. A person who carries off or takes away another person, without
that person’s consent, intending such abduction or being reckless as
to whether there is such abduction, is guilty of the offence of
abduction.
4
A Draft Criminal Code for Scotland with Commentary, Edinburgh 2003.
96
Deprivation of liberty
46. A person who deprives another person of liberty, without that

person’s consent, intending such deprivation or being reckless as to
whether there is such deprivation, is guilty of the offence of
deprivation of liberty.
97
APPENDIX B
THE LAW IN OTHER COUNTRIES
AUSTRALIA
B.1 There is no offence of kidnapping in the Federal Criminal Code, except for a
specialised offence of kidnapping UN personnel.1
B.2 Such an offence is however included in the Model Criminal Code (MCC). This is
an optional model, since the federal government has no authority under the
Constitution to enact criminal laws at state level; it may only enact law relating to
crimes against the Commonwealth (such as the specialised offence of kidnapping
UN personnel, already mentioned). The relevant part of the MCC reads:
Division 8: Kidnapping, child abduction and unlawful detention

5.1.32 Taking or detaining—interpretation
For the purposes of this Division:
(a) taking another person includes causing the person to accompany

a person and causing the person to be taken, and
(b) detaining another person includes causing the person to remain

where he or she is.
5.1.33 Kidnapping
(1) A person who takes or detains another person, without the
person’s consent:
(a) with the intention of holding that other person to ransom or as a

hostage, or
(b) with the intention of taking or sending that other person out of the
jurisdiction, or
(c) with the intention of committing an indictable offence against that

other person or a third person,
is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19 years.
(2) A person who takes or detains a child is to be treated as acting

without the consent of the child.
(3) A person who takes or detains a child with the intention of taking
or sending the child out of the jurisdiction does not commit an offence
against subsection (1) (b) if:
1
Commonwealth Criminal Code, s 71.9.
98
(a) the person has lawful custody of the child or is acting with the
consent of the person who has lawful custody of the child, and
(b) the person is not acting in contravention of any order of a court

relating to the child.
5.1.34 Child abduction

(1) A person who takes or detains a child with the intention of
removing or keeping the child from the lawful control of any parent of
the child, without the consent of that parent, is guilty of an offence.
(2) It is not a defence to a charge under this section that the child
consented to being taken or detained unless, at the time of the taking
or detention, the person who took or detained the child was the child’s
spouse or de facto partner and the child was over 14 years of age.
(3) A person does not commit an offence against this section if the
person is a parent of the child.
5.1.35 Unlawful detention

A person who takes or detains another person without the other
person’s consent is guilty of an offence.
B.3 All jurisdictions in Australia now have a statutory offence of kidnapping, though
some still retain the common law offence alongside the statutory one.2 In all the
Australian definitions discussed below, it appears that the main ingredient
distinguishing (statutory) kidnapping from ordinary false imprisonment is the
intention to gain or procure something.3 However beyond that the tests differ,
even in their actus reus; Justice Demack remarked in Campbell and Brennan4
that the provisions in the three states, Queensland, Victoria and New South
Wales, were “quite different”, but did not elaborate on which, if any, he thought
was preferable.
New South Wales

B.4 In New South Wales, the Crimes Act 1900 defines kidnapping as follows.
86. Kidnapping
(1) Basic offence A person who takes or detains a person, without
the person’s consent:
2
M Bagaric and K J Arenson, Criminal Laws in Australia: Cases and Materials (2004) p 280.
3
See the Queensland case of Campbell and Brennan [1981] Qd R 516.
99
(a) with the intention of holding the person to ransom, or
(b) with the intention of obtaining any other advantage,
is liable to imprisonment for 14 years.
(2) Aggravated offence A person is guilty of an offence under this

subsection if:
(a) the person commits an offence under subsection (1) in the

company of another person or persons, OR5
(b) the person commits an offence under subsection (1) and at the
time of, or immediately before or after, the commission of the offence,
actual bodily harm is occasioned to the alleged victim.
A person convicted of an offence under this subsection is liable to

imprisonment for 20 years.
(3) Specially aggravated offence A person is guilty of an offence

under this subsection if the person commits an offence under
subsection (1):
(a) in the company of another person or persons, AND6
(b) at the time of, or immediately before or after, the commission of

the offence, actual bodily harm is occasioned to the alleged victim.
A person convicted of an offence under this subsection is liable to

imprisonment for 25 years.
(4) Alternative verdicts If on the trial of a person for an offence under

subsection (2) or (3) the jury is not satisfied that the accused is guilty
of the offence charged, but is satisfied on the evidence that the
accused is guilty of a lesser offence under this section, it may find the
accused not guilty of the offence charged but guilty of the lesser
offence, and the accused is liable to punishment accordingly.
(5) A person who takes or detains a child is to be treated as acting

without the consent of the child.
(6) A person who takes or detains a child does not commit an

offence under this section if:
(a) the person is the parent of the child or is acting with the consent
of a parent of the child, and
4
[1981] Qd R 516.
5
Emphasis ours.
6
Emphasis ours.
100
(b) the person is not acting in contravention of any order of a court
relating to the child.
(7) In this section:
“child” means a child under the age of 16 years.
“detaining” a person includes causing the person to remain where he

or she is.
“parent” of a child means a person who has, in relation to the child, all
the duties, powers, responsibilities and authority that, by law, parents
have in relation to their children.
“taking” a person includes causing the person to accompany a person

and causing the person to be taken.
B.5 “Intention to hold” means “an intention to hold the victim irrespective of whether
the victim is willing or consents to remain with the accused”.7
B.6 There is no separate statutory offence of false imprisonment, though the offence
survives at common law.8 In Davis9 Justice Howie considered the meaning of
“kidnapping” at common law and whether section 86 (previously 90A) created two
offences (“taking away” and “detaining”) or whether these are two ways of
committing the same offence. The defendant was convicted under section
86(2)(b) of having taken the victim, driven her away and then, after stopping the
car, inflicting actual bodily harm while sexually assaulting her. The defendant’s
case on appeal was that there were in fact two separate offences, aggravated
taking and aggravated detention. Since he had harmed her only during the
detention and not at the point of the taking, and the count in the indictment only
referred to “taking”, his conviction could not stand.
B.7 Justice Howie began by discussing the common law offence. He quoted Lord
Brandon’s definition in D10 and went on to observe that the distinguishing feature
between kidnapping and false imprisonment at common law seemed to be
movement from one place to another (he called it “asportation”),11 but noted that
this asportation does not have to be over a very long distance; here he cited
Wellard.12 He then charted the development of the statutory offences in New
South Wales, beginning as a way to deter abduction of young girls for marriage
or carnal knowledge and, after the notorious Lindbergh case, to address cases of
kidnap to hold for ransom.
B.8 On the distinction between the two forms (taking away and detaining), he said
7
DMC [2002] NSWCCA 513.
8
Criminal Procedure Act 1986 (NSW) Sch 1 Table 1 para 16C.
9
[2006] NSWCCA 392.
10
[1984] AC 778.
11
See for example Orton J in Smith v State, Wisconsin Supreme Court (1885) 6 Criminal
Law Magazine 708; “Kidnapping and the Element of Asportation” (1962) 35 Southern
California Law Review 212 at 216.
12
[1978] 1 WLR 921.
101
The terminology used for the statutory offence of kidnapping was that
which had generally been employed for the offences of abduction,
that is the offence was made out if the offender either detained or
took away the victim with the necessary intention. These offences
incorporated both the common law offence of kidnapping, in so far as
they involved an asportation of the victim, and false imprisonment,
insofar as they involved a detention without any removal of the victim.
Yet, although the statutory abduction offences have existed for more
than a century, it has never been suggested in any of the cases or
texts which I have been able to discover that there were in fact two
offences created by each of the relevant provisions: one where the
victim is taken away and one where the victim is detained. This is not
surprising because at common law every kidnapping involved a false
imprisonment.13
B.9 Later, on the current section 86, he said
The history of the present offence of kidnapping in s 86 of the Crimes

Act seems to confirm my initial impression that the section contains
only one offence but provides that it can be committed in one of two
ways so far as the actus reus of the offence is concerned: by taking
or detaining the victim. As at common law, every taking will include a
detention, but not every detention will involve a taking. In any event it
is the interference with the liberty of the person that is the conduct at
the heart of the modern day concept of kidnapping. I can see no
policy consideration that would warrant an interpretation of the
section as giving rise to two distinct offences as the appellant
asserts.14
The appellant had submitted that his argument, of there being two separate
offences, was supported by the English Court of Appeal’s decision in Reid,15
where it was held that:
We can find no reason in authority or principle why the crime should

not be complete when the person is seized and carried away, or why
kidnapping should be regarded, as was urged by counsel, as a
continuing offence involving the concealment of the person seized.
However, Justice Howie held that:
13
[2006] NSWCCA 392 at [44].
14
[2006] NSWCCA 392 at [56].
15
Reid [1973] QB 299.
102
These remarks, made in the context of a discussion of the common
law offence of kidnapping, do not assist the appellant. The Court was
simply holding that the crime of kidnapping is complete once the
victim has been detained and carried away (or taken), and, in
addition, that concealment of the victim during or following the
carrying away is not an element of the offence. It is the fact of the
carrying away, not its duration or extent, that is important. If the victim
is detained and moved just a short distance, the offence is just as
complete as if the person was detained and moved a thousand miles.
That is not the same thing as saying that the carrying away of the
person who was taken a thousand miles ceased to be a carrying
away once the person had been moved just a short distance.
Victoria
B.10 In Victoria, the Crimes Act 1958 provides:
63A. Kidnapping
Whosoever leads takes or entices away or detains any person with
intent to demand from that person or any other person any payment
by way of ransom for the return or release of that person or with intent
to gain for himself or any other person any advantage (however
arising) from the detention of that person shall, whether or not any
demand or threat is in fact made, be guilty of an indictable offence
and liable to level 2 imprisonment (25 years maximum).
There is a separate offence of child stealing.16 In addition, the table of maximum

prison terms in the Crimes Act 1958 indicates that both false imprisonment and
kidnapping survive at common law.17
16
Crimes Act 1958 (Vic) s 63.
17
Above, s 320.
103
B.11 In Nguyen18 it was argued that the common law offence of kidnapping had been
abolished by this section. Justice of Appeal Kenny, with whom the other
members of the court agreed, held that the common law offence still survived. In
reaching this conclusion he considered other statutes intended to deter a
particular form of kidnapping without affecting the common law offence,19 and
also referred to D20 in which the House of Lords held that the common law
offence survives in relation to children. This was so notwithstanding the existence
of the statutory offence of child stealing, in relation to which it was observed that
“there is no reason to believe that the position is any different in Victoria”. Noting
that any abolition of such a longstanding offence ought not to be readily implied,
he concluded that “I can find nothing in the terms of the Crimes (Kidnapping) Act
or in the Parliamentary debates on the Bill indicating, expressly or by necessary
implication, that Parliament intended to abolish the existing common law offence
of kidnapping”.
B.12 Indeed, the common law offence has continued to be used long after the
enactment of the section: see for example Dixon-Jenkins21 in which the Supreme
Court held that although the charge was common law kidnapping and therefore
the sentences were at large, the maximum penalties under section 63A could be
taken into account.
Queensland
B.13 In Queensland, the Criminal Code 1899 contains the following offences; there are
no surviving common law offences. Other states have criminal codes based on or
similar to that of Queensland.
354. Kidnapping
(1) Any person who kidnaps another person is guilty of a crime.
Maximum penalty--7 years imprisonment.
(2) A person kidnaps another person if the person unlawfully and

forcibly takes or detains the other person with intent to gain anything
from any person or to procure anything to be done or omitted to be
done by any person.
354A. Kidnapping for ransom

(1) Any person who--
18
[1998] 4 VR 394.
19
For example Criminal Law and Practice Act, s 50 (abduction of an heiress), s 51
(forcible abduction of a woman), s 52 (abduction of a girl under 16 years); and similar
provisions in Crimes Act 1890, ss 50 to 52; Crimes Act 1915, ss 55 to 59; Crimes Act
1928, ss 56 to 59 and Crimes Act 1958, ss 55 to 56 and 63.
20
[1984] AC 778.
21
(1991) 55 A Crim R 308.
104
(a) with intent to extort or gain anything from or procure anything
to be done or omitted to be done by any person by a demand
containing threats of detriment of any kind to be caused to
any person, either by the offender or any other person, if the
demand is not complied with, takes or entices away, or
detains, the person in respect of whom the threats are made;
or
(b) receives or harbours the said person in respect of whom the

threats are made, knowing such person to have been so
taken or enticed away, or detained;
is guilty of a crime which is called kidnapping for ransom.
(2) Any person who commits the crime of kidnapping for ransom is
liable to imprisonment for 14 years.
(3) If the person kidnapped has been unconditionally set at liberty

without such person having suffered any grievous bodily harm, the
offender is liable to imprisonment for 10 years.
(4) Any person who attempts to commit the crime of kidnapping for
ransom is guilty of a crime and is liable to imprisonment for 7 years.
355. Deprivation of liberty

Any person who unlawfully confines or detains another in any place
against the other person’s will, or otherwise unlawfully deprives
another of the other person’s personal liberty, is guilty of a
misdemeanour, and is liable to imprisonment for 3 years.
B.14 In the case of F22 the Queensland Court of Appeal considered the meaning of the
word “procure” in section 354. The defendant and an accomplice kidnapped the
victim (the accomplice’s ex-girlfriend), beat her, then tied her up and the
accomplice then sexually assaulted her. The trial judge concluded that there was
a “serious ambiguity” in the section and stayed the proceedings on the basis that
it was not possible to say that D had “procured” the sexual assault perpetrated by
his accomplice.
B.15 The Court of Appeal disagreed; Justice of Appeal Williams, with whom Justice of
Appeal Davies agreed on this point, said that the critical words were “... with
intent ... to procure anything to be done ... by any person” so that:
in the context of this case it would be open to a jury to conclude that

an intent to bring about, cause, or facilitate an assault by A on J was
a sufficient intent to constitute the offence defined in section 354.23
B.16 Justice Cullinane dissented, holding that:
22
R v F ex parte Attorney General [2004] 1 Qd R 162.
23
[2004] 1 Qd R 162 at [37].
105
The present case is plainly not one in which, on the facts placed
before the learned judge at first instance, it can be said that the
respondent intended in forcibly taking or detaining the complainant
that A be thereby induced to effect the sexual assault upon her or to
put in terms similar to that used by Cusack J in the passage set out
above, with the intention of bringing about conduct on the part of A
(namely the sexual assault) which he would or may not have
embarked upon of his own volition…
I do not think that the section should be read so that “procure” is

construed so as to include “facilitate” or “permit”.24
B.17 In Campbell and Brennan25 the defendant got into the victim’s car, forced him at
gunpoint to drive a short distance, told him to stop and then got out of the car.
The defendant argued that since the thing procured by his threats was the taking
itself, the additional element of intention to gain something was not satisfied.
Justice Demack (Justices Campbell and Kneipp agreeing) held:
The taking, enticing away or detaining of a person is serious because

it infringes upon that person’s liberty. In the light of this it becomes
clear that it is the quality of infringement, rather than its duration that
is significant… In the present case I am satisfied that the evidence
that Mr French was compelled to leave his front yard and to get into
his motor car is sufficient to constitute a ‘taking’ …He was compelled
to go where he did not want to go, and in my opinion that is sufficient
to constitute a ‘taking.’
Mr Healy’s second submission was based upon the premise that the
“taking” involved in this case was the period that Mr French was in the
car. He submitted that the “taking” involved the very thing that the
taking, with threats, was supposed to achieve, that is transportation in
the motor vehicle. In my opinion this approach places far too much
emphasis upon the need for a substantial degree of time and distance
in the “taking”. For my part I am satisfied that the “taking” may
properly be regarded as being complete when both Brennan and Mr
French got into the car. 26
B.18 Although it seems to avoid addressing the point directly, this appears to establish
that no additional intention to gain anything is necessary, or rather that the
intention to procure the very act of taking can be sufficient.
CANADA
B.19 The Canadian Criminal Code contains the following definitions:
279.—(1) Every person commits an offence who kidnaps a person

with intent
24
[2004] 1 Qd R 162 at [60] to [62].
25
[1981] Qd R 516.
26
[1981] Qd R 516, 521 to 522.
106
(a) to cause the person to be confined or imprisoned against the
person’s will;
(b) to cause the person to be unlawfully sent or transported out

of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the

person’s will.
(2) Every one who, without lawful authority, confines, imprisons or

forcibly seizes another person is guilty of
(a) an indictable offence and liable to imprisonment for a term

not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to

imprisonment for a term not exceeding eighteen months.
(3) In proceedings under this section, the fact that the person in
relation to whom the offence is alleged to have been committed did
not resist is not a defence unless the accused proves that the failure
to resist was not caused by threats, duress, force or exhibition of
force.
B.20 This definition, like much of the Canadian Criminal Code, is based on Stephen’s
draft Criminal Code. The code is intended to be exhaustive (provincial
governments may not enact criminal law),27 and no common law offence of false
imprisonment survives, it being replaced by forcible confinement under
subsection (2). The term “kidnap” is treated as self-defining, but is not sufficient to
constitute the offence: there must be an aggravating factor, namely intent to
imprison, to send out of Canada or to hold for ransom.
B.21 A helpful summary of the principles was given by Mr Justice Beard in Karpenko,
Mayo, George and Mayo28 where he said
A review of the cases discloses the following principles regarding

these offences:
As there is no definition of kidnapping in the Criminal Code, the

elements of the offence are to be determined from the common law
(see R v Oakley (1977) 36 CCC (2d) 436 (Ont CA) and R v Tremblay
(1997) 117 CCC (3d) 86 (Que CA)).
Every kidnapping will necessarily include a forcible confinement,

while every forcible confinement is not a kidnapping.
27
Constitution Act 1982 ss 91, 92.
28
2005 MBQB 40 at [36].
107
The common law definition of kidnapping requires the transportation
of the victim from one location to another, and without transportation,
there can be a forcible confinement but not a kidnapping.
Consent is an element of forcible confinement, such that the crown

must prove that the confinement, imprisonment or forcible seizure
was against the will or without the consent of the victim (see R v
Gough (1985) 18 CCC (3d) 453 (Ont CA) at page 458).
Similar reasoning applies to the charge of kidnapping, that is, that the
crown must prove that the complainant did not consent to be
transported by the accused. The issue of consent was reviewed by
Lady Justice L’Heureux-Dubé, in a unanimous decision in R v
Chartrand (1994) 91 CCC (3d) 396 (SCC).
The cases have also held that the transportation need not necessarily
be against the complainant’s will to found a charge of kidnapping, as
for example:
- if the consent to be transported was obtained by fraud, as in

R v Brown (1972) 8 CCC (2d) 13 (Ont CA) and R v Metcalfe
(1983) 10 CCC (3d) 114 (BCCA), where the accused
pretended to be taking the victim home for a visit when, all
along, they were planning to hold him for ransom;
- if the consent to be transported is withdrawn during what

began as a consensual transportation, as in R v Tremblay
(1997) 117 CCC (3d) 86 (Que CA),29 where the victims were
picked up as hitchhikers and, during the ride, the accused
confined them and later sexually assaulted them (see also
Gough).
B.22 The most recent significant case is Tse.30 A gang had kidnapped a group of 3
people, held them captive for several weeks during which they were tortured and
threatened with death, and extorted a ransom of over $1.3 million in return for
their release. In relation to the kidnapping charge, Mr Justice Davies held:
To establish that any or all of the accused are guilty of the offence of
kidnapping charged against them as particularized in the indictment,
the Crown must prove beyond a reasonable doubt:
29
So in report: but the reference would appear rather to fit Oakley, discussed at paragraph
B.26 below.
30
2010 BCSC 474.
108
(1) the identity of that named accused as a participant in the offence
of kidnapping;
(2) the time and place of the alleged kidnapping for ransom (between
February 21, 2006, and March 20, 2006, at Burnaby and Richmond,
British Columbia);
(3) that the named accused took the named complainant from one
place to another;
(4) the taking of that complainant was without his or her consent; and
(5) that the named accused intended that the complainant be held for
ransom against his or her will.31
B.23 Although the identity, time and place are clearly specific to the facts of the case,
items (3) to (5) are essential ingredients of the offence.
B.24 In Brown32 the defendant tricked the victim, a ten-year-old girl, into getting into his
car by telling her that her father had asked him to drive her to school. He then
drove out of the city, stopped and choked her until she became unconscious. He
put her in the boot of the car, drove to a rubbish dump and there left what he
believed to be her dead body. Once he left, she climbed out and ran to get help.
One of the defendant’s submissions was that since the victim had initially gone
with him willingly, the case did not fall within the kidnapping section (presumably
because the victim did not resist and that non-resistance was not caused by
threats, duress, force or exhibition of force, thus giving him a defence under
subsection 3). Justice of Appeal MacKay held:
We cannot accept this submission because whatever may be said for

what occurred from the time he picked the girl up until the time of the
choking, although we think, having regard to his false statements that
induced her to enter the car that that did constitute kidnapping, but
irrespective of that, the fact that he put her in the trunk of his car and
drove 24 miles to a dump after choking her was clearly within the
kidnapping section, section 247.33
31
2010 BCSC 474 at [265].
32
8 CCC (2d) 13.
33
Above, at [9]. Section 279 was previously section 247. The only change to the text of the
offence is to the maximum sentences available for the confinement offence.
109
B.25 Any non-resistance subsequent to the choking could clearly be attributed to
threats, duress, force or exhibition of force. However the conclusion that his
inducing her to get into the car by false statement did constitute kidnapping is
less obvious since the Canadian definition does not include fraud as well as force
(note that this point was ultimately settled in Metcalfe).34 Of course, the reference
to force and so on comes in the subsection relating to a defence to the charge:
the term “kidnapping” itself is not defined and so can include taking by fraud
alone, as at common law. The definition of the offence was discussed further in
the following case.
B.26 In Oakley35 a lorry driver picked up two women hitchhikers. After driving for a
while, he pulled out a gun and told them to get into the back part of the lorry
where, after driving some distance further, he then stopped and subjected them
to violent sexual assaults. The bulk of the judgment is devoted to addressing the
meaning of the term “kidnapping”, which is not defined in the Code. Justice of
Appeal Morrow, giving the judgment of the court, discusses the historical origins
of the term and various common law definitions, but frustratingly he does not
reach a clear conclusion or adopt any one definition. He does endorse as “one of
the best statements” a quote by Justice Coffey of the Supreme Court of Indiana
in an 1894 case, Eberling v State,36 where at he says:
Mr Bishop, in his work on Criminal Law, (volume 1, § 553) says:

“Kidnapping and false imprisonment, two offenses against the
individual, of which ordinarily the latter is included in the former, are
punishable by the common law. False imprisonment is any unlawful
restraint of one’s liberty, whether in a place set apart for imprisonment
generally, or used only on the particular occasion, and whether
between walls or not, effected either by physical force, actually
applied, or by words and an array of such forces. Kidnapping is a
false imprisonment aggravated by conveying the imprisoned person
to some other place”. Taking this definition as correct, kidnapping,
then, as known to the common law, was false imprisonment
aggravated by carrying the imprisoned person to some other place. 2
Bish Crim Law, § 750.37
B.27 He also quotes from the English case of Reid,38 where Lord Justice Cairns says:
We can find no reason in authority or in principles why the crime

should not be complete when the person is seized and carried away,
or why kidnapping should be regarded, as was urged by counsel, as
a continuing offence involving the concealment of the person seized.
B.28 As to the ground of appeal that only false imprisonment and not kidnapping had
occurred, the court concluded:
34
(1983) 10 CCC (3d) 114, para B.36 below.
35
[1977] 4 WWR 716.
36
(1894) 35 NE 1023.
37
Above, p 1024.
38
[1973] QB 299.
110
It is to be remembered that, historically, kidnapping was taken to
connote more than just confinement or imprisonment, but rather the
stealing away or carrying away of the person whether for the purpose
of unlawful confinement or imprisonment later or for the purpose of
selling the person into bondage on the plantations, as in the earliest
cases, or for some other purpose.
The appellant here is, in respect to each charge, charged that he “did
kidnap — with intent to cause her to be confined against her will ...”
The learned trial judge in his reasons for judgment states that “once a
person is bound, placed in an area of confinement, such as in the
sleeper in this truck, that constitutes kidnapping within the meaning of
s 247(1)(a).”
In my respectful opinion this does not go quite far enough. To make

the offence one of kidnapping under subs (1)(a) rather than
confinement or imprisonment under subs (2) requires a movement or
taking of the persons from one place to another. In the present case
the facts do go this far. The act of forcing the girls into the back of the
truck, tying them up and then moving the truck for some considerable
distance along the highway with the intent of sexually assaulting them
does constitute the offence of kidnapping. I see no justification for
interfering with the sentences imposed.39
B.29 It is clear therefore that the element which distinguishes kidnapping from false
imprisonment is the movement from one place to another; the “taking and
carrying away”. The same conclusion was reached by the Quebec Court of
Appeal in Robins40 and Tremblay.41
B.30 It is regrettable that the court did not fully discuss the issue of whether the
kidnapping was complete upon the defendant luring the women into his truck by
false pretences, or only occurred when he forced them into the back. Justice of
Appeal Morrow did say:
There can be no doubt that the two women, from the time they
received the threats from the appellant as he held the revolver and
were required to move back to the sleeping compartment, were
suffering an unlawful and total restraint of their personal liberty. At this
point in time, any consent they had given or any willingness they had
shown to ride along with the accused must surely be taken to have
disappeared. Certainly any consent or willingness had to have
disappeared once they were tied up.42
39
[1977] 4 WWR 716 at [47] to [49].
40
(1982) 66 CCC (2d) 550, 558.
41
(1997) 117 CCC (3d) 86, para B.33 below.
42
[1977] 4 WWR 716 at [43].
111
B.31 This suggests that the offence was only completed at the point where force (or
threat of force) was exerted, contrary to the dictum in Brown.43 However he went
on to say:
It seems clear from all the evidence that from the beginning it was the
intention of the appellant to hold the women until he could find a
suitable place either along or off the highway where he could then
attack them sexually.44
B.32 This could be seen to suggest that this intention, underlying the defendant’s
fraudulent act of inviting the women into his truck on the false basis that he would
simply drive them to their destination, formed the basis of the kidnapping charge
even before any force was applied. This was the effect of the decision in
Metcalfe.45
B.33 A similar case is that of Tremblay.46 The defendant met the victim, a waitress, in
the bar where she worked and after talking for a while suggested they go back to
her place. She agreed and got into the defendant’s car. After they set off, he
suggested they go for a drink with his friends instead; she refused and said she
wanted to be driven home but he ignored her request. At this point he also tried
to touch her thigh. After repeatedly insisting that they return to her place and
repeatedly being ignored, she jumped out of the moving car, sustaining some
minor injuries.
B.34 The case was held to be one of confinement under section 247(2), but not
kidnapping. The court held:
La séquestration prive l’individu de sa liberté de se déplacer d’un

point A à un point B. L’enlèvement, quant à lui, consiste dans la prise
de contrôle d’une personne pour l’amener contre son gré d’un point A
à un point B. La distinction entre les infractions devient parfois
délicate car pour amener une personne d’un point A à un point B, on
l’empêche par le fait même de se déplacer d’un point A à un point B.
C’est la raison pour laquelle un enlèvement entraîne nécessairement
une séquestration. La séquestration, cependant, peut survenir sans
qu’un enlèvement ait eu lieu à l’origine.
43
8 CCC (2d) 13.
44
[1977] 4 WWR 716 at [44].
45
(1983) 10 CCC (3d) 114, para B.36 below.
46
(1997) 117 CCC (3d) 86.
112
(Confinement deprives the individual of his or her liberty to move from
point A to point B. Kidnapping, on the other hand, involves taking
control of another in order to take him or her from point A to point B
against his or her will. The distinction between the two offences can
sometimes be a fine one, since taking a person from point A to point
B necessarily prevents that person going from some other point A to
another point B. This is why every kidnapping necessarily comprises
a confinement. Confinement, however, can be committed without a
kidnapping taking place at the outset).47
B.35 The Court concluded that while the victim was deprived of her liberty to leave the
car, she was not confined for the purpose of going to a particular point. This
seems to be inconsistent with Oakley,48 in which the victims were similarly
confined within a moving vehicle and this was held to be a kidnapping. The
difference surely cannot be in the fact that the defendant had no specific intended
destination, since the taking from one place to another must have been complete
at the moment the car began to move.
B.36 In Metcalfe49 the defendant and another man had agreed to meet the victim, an
old school acquaintance. They picked him up, falsely saying they would take him
back to the defendant’s place for a drink. Instead they drove to a garage, where
they tied him up and kept him while they demanded ransom payments from his
family. Chief Justice Nemetz, with whom the other judges agreed, held that:
In my opinion the offence of kidnapping to hold for ransom was

complete on Molnar’s (the victim’s) entry into the car. Molnar’s
agreement to go with the abductors was no consent at law. It was
obtained by a fraudulent stratagem. Fraud was used as a substitute
for force…
In Canada, Parliament found it unnecessary to define kidnapping in

the Criminal Code. I cannot say for certain why they did not do so, but
applying common sense and appreciating to subtle and ingenious
methods employed by criminals undertaking this evil, it is readily
apparent that offering sweets to children is not the only stratagem
available to induce victims to accompany abductors.
It is my opinion that under the Criminal Code “to kidnap” has as one
of its meanings “to take and carry away a person against his will by
unlawful force or by fraud”. The fact that the person is not forcibly
conveyed by a stratagem of an inducement can make no difference.
The crime is complete when the person is picked up and then
transported by fraud to his place of confinement.50
47
Our translation.
48
[1977] 4 WWR 716.
49
(1983) 10 CCC (3d) 114.
50
(1983) 10 CCC (3d) 114 at [9] to [12].
113
B.37 He thus endorsed a statement by Mr Justice Parker, speaking for the majority of
the state Supreme Court, in State of North Carolina v Gough51 where, at page
124, he said
“kidnap” ... means the unlawful taking and carrying away of a person
by force or fraud against his will...
B.38 This definition matches the English authorities. Taking away by fraud, therefore,
would seem conclusively to constitute the offence.
B.39 In Gallup52 Mr Justice Peter Martin said:
… if I may respectfully observe, the kidnapping provision of the

Criminal Code, s 279, could greatly benefit from legislative redrafting
and clarification. As I understand it, what the legislation intended to
prohibit by this offence, but does not expressly state, is the taking or
movement of a person against the will of that person, for the purpose
of committing an indictable offence. Further, consent obtained by
fraud or force is not consent; and where the person taken is a child
under the age of 14, only the consent of the child’s parent or lawful
guardian may be a defence. In effect, the consent of a child, however
obtained, is irrelevant.53
B.40 Chief Justice Nemetz further held that “the crime is complete when the person is
picked up and then transported by fraud to his place of confinement”. It is not
entirely clear whether this means that all of these stages must have been
completed before the offence is constituted, or whether it is complete when the
person is simply picked up. The emphasis on the requirement of movement to
some other place, however, would suggest that at least the journey if not the
subsequent confinement must have taken place for there to be a kidnapping.
NEW ZEALAND
B.41 The Crimes Act 1961 defines kidnapping as follows:
209. Kidnapping
Every one is liable to imprisonment for a term not exceeding 14 years
who unlawfully takes away or detains a person without his or her
consent or with his or her consent obtained by fraud or duress,—
(a) with intent to hold him or her for ransom or to service; or
(b) with intent to cause him or her to be confined or imprisoned;

or
(c) with intent to cause him or her to be sent or taken out of New
Zealand.
51
(1962) 126 SE 2d 118.
52
(2002) 319 AR 131.
53
Above, at [52]. Emphasis added.
114
209A. Young person under 16 cannot consent to being taken
away or detained
For the purposes of sections 208 and 209, a person under the age of
16 years cannot consent to being taken away or detained.
There does not appear to be a separate offence of false imprisonment, though

there are offences of abduction for purposes of marriage or sexual connection54
and abducting young persons under 16.55
B.42 The New Zealand Act is based on the Stephen model, but unlike the Canadian
code does not treat “kidnap” as self-defining and does not provide a separate
offence of forcible detention.
B.43 Unlike in Canada, the essence of the offence is not the taking from one place to
another, or false imprisonment in motion. This is clear from, for example,
Ahmed56 in which Mr Justice Heath said that “the essence of a kidnapping charge
is that one person has detained another unlawfully with intent to cause that
person to be confined”. There does not appear to be a separate offence of false
imprisonment or confinement in New Zealand law.
REPUBLIC OF IRELAND
B.44 There is a statutory offence of false imprisonment under section 15 of the Non-
Fatal Offences Against the Person Act 1997, defined as follows.
15.—(1) A person shall be guilty of the offence of false imprisonment

who intentionally or recklessly—
(a) takes or detains, or
another without that other's consent.
(2) For the purposes of this section, a person acts without the
consent of another if the person obtains the other’s consent by force
or threat of force, or by deception causing the other to believe that he
or she is under legal compulsion to consent.
This offence covers all instances that would be prosecuted as either false
imprisonment or kidnapping in England and Wales, and is close to our Model 1,
above.
54
Crimes Act 1961 s 208.
55
Above, s 210.
56
[2009] NZCA 220 at [10].
115
B.45 The common law offences of false imprisonment and kidnapping were abolished
by section 28 of the same Act. Charleton’s Offences Against the Person57
explains that the common law offence of kidnapping was never used in practice,
because of the uncertainty as to whether the law follows Edge,58 the last reported
Irish case, or D.59
B.46 The Criminal Law Codification Advisory Committee published a “Draft Criminal
Code and Commentary” on 31 May 2010. This defines an offence of false
imprisonment in almost identical terms: changes are shown in italics.
3206.—(1) A person commits the offence of false imprisonment if he

or she intentionally, knowingly or recklessly—
(a) takes or detains,
another without that other’s consent.
(2) For the purposes of this Head, and without prejudice to the
generality of Head 1105 (consent), a person acts without the consent
of another if the person obtains the other’s consent by deception
causing the other to believe that he or she is under legal compulsion
to consent.
B.47 The commentary on that clause explains that the fault element of the offence,
namely intention, knowledge or recklessness, does not relate to D’s physical act.
It relates to the result of that act, whether that result consists of taking or
detention, the causing of taking or detention or the restriction of personal liberty.
It also relates to the circumstance element, namely that V does not consent.
UNITED STATES
B.48 The Model Criminal Code, designed for enactment with modifications by the
individual states, defines kidnapping as follows.
212.1 Kidnapping
A person is guilty of kidnapping if he unlawfully removes another from
his place of residence or business, or a substantial distance from the
vicinity where he is found, or if he unlawfully confines another for a
substantial period in a place of isolation, with any of the following
purposes:
(a) to hold for ransom or reward, or as a shield or hostage; or
(b) to facilitate commission of any felony or flight thereafter;

or
57
P Charleton, Offences Against the Person (1992), para 7.10.
58
[1943] IR 115.
59
[1984] AC 778.
116
(c) to inflict bodily injury on or to terrorize the victim or
another; or
(d) to interfere with the performance of any governmental or

political function.
Kidnapping is a felony of the first degree unless the actor voluntarily

releases the victim alive and in a safe place prior to trial, in which
case it is a felony of the second degree. A removal or confinement is
unlawful within the meaning of this Section if it is accomplished by
force, threat or deception, or, in the case of a person who is under the
age of 14 or incompetent, if it is accomplished without the consent of
a parent, guardian or other person responsible for general
supervision of his welfare.
B.49 One purpose of this formulation was to provide a minimum distance through
which the victim should be moved in order for the offence to be committed: from
in his house or workplace to outside it, or otherwise a “substantial” distance. This
was to avoid defendants being charged with kidnapping as an alternative to other
crimes, for example when a victim is forced to go from one room to another in the
course of a rape or burglary.60 Another purpose was to make a clear distinction
between kidnapping, regarded as particularly heinous, and lesser crimes of
restraint.
60
Eg People v Chessman, 38 Cal 2d 166, 238 P 2d 1001 (1951), People v Knowles 35 Cal
2d 175, 217 P 2d 1.
117
APPENDIX C
OTHER ABDUCTION OFFENCES
C.1 There have, for some centuries, been statutory offences aimed at particular forms
of kidnapping. Today these include, among other offences, child abduction and
hostage-taking. In considering both these subjects it is necessary to take into
account the impact of international conventions.1 In addition, there are offences
covering various forms of people trafficking.2
CHILD ABDUCTION OFFENCES

C.2 There is an offence of child abduction that can be committed by parents and
guardians, against the will of the others responsible for the child. The offence is
confined to cases where the child is taken out of the United Kingdom.3 Another
offence is abduction by other persons, in such a way as to take the child out of
the control of its parents or guardians.4 In both cases, the consent of the child is
immaterial. These offences are reproduced unaltered in the 1989 draft Code.5 A
further offence is provided by Children Act 1989 section 49, specifically in relation
to children in care.
C.3 These offences were neither created in response to an international convention,

nor did the 1989 Act specifically aim at bringing them into accord with
international conventions. The 1989 Act does reflect certain conventions on the
civil aspects of child abduction, but the amendments to the 1984 Act only update
the definitions of what persons have responsibility for the child, so as to accord
with the post-1989 framework. Nevertheless, were we to reform or consolidate
these offences, we should need to be careful to ensure that the law continues to
fit the general law of guardianship of and responsibility for children.
C.4 The relevant sections, as amended, read as follows.
1. Offence of abduction of child by parent, etc

(1) Subject to subsections (5) and (8) below, a person connected
with a child under the age of sixteen commits an offence if he takes or
sends the child out of the United Kingdom without the appropriate
consent.
(2) A person is connected with a child for the purposes of this section
if—
(a) he is a parent of the child; or
1
Para C.5 below.
2
Para C.10 and following.
3
Child Abduction Act 1984 s 1 (as amended by Children Act 1989).
4
Above, s 2.
5
Criminal Law: a Criminal Code for England and Wales (1989) Law Com No 177, clauses
83 and 84 of draft Bill.
118
(b) in the case of a child whose parents were not married to
each other at the time of his birth, there are reasonable
grounds for believing that he is the father of the child; or
(c) he is a guardian of the child; or
(d) he is a person in whose favour a residence order is in force

with respect to the child; or
(e) he has custody of the child.
(3) In this section ‘the appropriate consent’, in relation to a child,

means—
(a) the consent of each of the following—
(i) the child’s mother;
(ii) the child’s father, if he has parental responsibility for him;
(iii) any guardian of the child;
(iv) any person in whose favour a residence order is in force

with respect to the child;
(v) any person who has custody of the child; or
(b) the leave of the court granted under or by virtue of any

provision of Part II of the Children Act 1989; or
(c) if any person has custody of the child, the leave of the court
which awarded custody to him.
(4) A person does not commit an offence under this section by taking
or sending a child out of the United Kingdom without obtaining the
appropriate consent if—
(a) he is a person in whose favour there is a residence order in

force with respect to the child, and
(b) he takes or sends him out of the United Kingdom for a period
of less than one month.
(4A) Subsection (4) above does not apply if the person taking or
sending the child out of the United Kingdom does so in breach of an
order under Part II of the Children Act 1989.
(5) A person does not commit an offence under this section by doing
anything without the consent of another person whose consent is
required under the foregoing provisions if—
(a) he does it in the belief that the other person—
(i) has consented; or
119
(ii) would consent if he was aware of all the relevant
circumstances; or
(b) he has taken all reasonable steps to communicate with the

other person but has been unable to communicate with him;
or
(c) the other person has unreasonably refused to consent.
(5A) Subsection (5)(c) above does not apply if—
(a) the person who refused to consent is a person—
(i) in whose favour there is a residence order in force with

respect to the child; or
(ii) who has custody of the child; or
(b) the person taking or sending the child out of the United
Kingdom is, by so acting, in breach of an order made by a
court in the United Kingdom.
(6) Where, in proceedings for an offence under this section, there is

sufficient evidence to raise an issue as to the application of
subsection (5) above, it shall be for the prosecution to prove that that
subsection does not apply.
(7) For the purposes of this section—
(a) “guardian of a child”, “residence order” and “parental

responsibility” have the same meaning as in the Children Act
1989; and
(b) a person shall be treated as having custody of a child if there

is in force an order of a court in the United Kingdom
awarding him (whether solely or jointly with another person)
custody, legal custody or care and control of the child.
(8) This section shall have effect subject to the provisions of the
Schedule to this Act in relation to a child who is in the care of a local
authority, detained in a place of safety, remanded to a local authority
accommodation or the subject of proceedings or an order relating to
adoption.
2. Offence of abduction of child by other persons

(1) Subject to subsection (3) below, a person, other than one
mentioned in subsection (2) below, commits an offence if, without
lawful authority or reasonable excuse, he takes or detains a child
under the age of sixteen—
(a) so as to remove him from the lawful control of any person

having lawful control of the child; or
120
(b) so as to keep him out of the lawful control of any person
entitled to lawful control of the child.
(2) The persons are—
(a) where the father and mother of the child in question were
married to each other at the time of his birth, the child’s
father and mother;
(b) where the father and mother of the child in question were not
married to each other at the time of his birth, the child’s
mother; and
(c) any other person mentioned in section 1(2)(c) to (e) above.
(3) In proceedings against any person for an offence under this

section, it shall be a defence for that person to prove—
(a) where the father and mother of the child in question were not
married to each other at the time of his birth—
(i) that he is the child’s father; or
(ii) that, at the time of the alleged offence, he believed, on

reasonable grounds, that he was the child’s father; or
(b) that, at the time of the alleged offence, he believed that the
child had attained the age of sixteen.
5. Restriction on prosecutions for offence of kidnapping

Except by or with the consent of the Director of Public Prosecutions
no prosecution shall be instituted for an offence of kidnapping if it was
committed—
(a) against a child under the age of sixteen; and
(b) by a person connected with the child, within the meaning of

section 1 above.
C.5 The relation of these offences to the civil aspects of child abduction and child
custody is complex. The layers are as follows.
(1) The domestic law whereby the court awards custody of a child in family
proceedings.
121
(2) The international conventions whereby countries recognise each other’s
custody awards: an example is the European Convention on Recognition
and Enforcement of Decisions concerning Custody of Children,6 as
incorporated in the Child Abduction and Custody Act 1985.
(3) The international conventions whereby countries make arrangements in

civil law for the tracing and return of children abducted contrary to the
custody rights in force in their previous country of residence, principally
the Hague Convention on the Civil Aspects of International Child
Abduction (1980), also incorporated in the 1985 Act.7
(4) The Child Abduction Act 1984 is a stand-alone arrangement, in that it

makes it an offence to abduct a child whether or not it is being taken to a
Hague Convention country. Its references to “custody”, “residence order”
and the like are confined to custody or residence ordered by a United
Kingdom court.
(5) Where abduction is imminent, the police may issue an all ports warning.8
HOSTAGE TAKING
C.6 Hostage taking is defined9 as follows.
1. Hostage-taking
(1) A person, whatever his nationality, who, in the United Kingdom or
elsewhere,—
(a) detains any other person (“the hostage”), and
(b) in order to compel a State, international governmental

organisation or person to do or abstain from doing any act,
threatens to kill, injure or continue to detain the hostage,
commits an offence.
(2) A person guilty of an offence under this Act shall be liable, on

conviction on indictment, to imprisonment for life.
This definition is restated in the draft Code.10
C.7 The language of this provision reflects that of the International Convention
against the Taking of Hostages of 1979. The relevant article states:
6
Also known as the Luxembourg Convention: it is a Council of Europe treaty.
7
As between EU countries, these arrangements are modified by Council Regulation (EC)
No 2201/2003 of 27 November 2003: Child Abduction and Custody Act 1985 s 1.
8
For these, see Practice Direction (child; removal from jurisdiction) [1986] 1 WLR 475,
[1986] 1 All ER 983.
9
Taking of Hostages Act 1982.
10
Criminal Law: a Criminal Code for England and Wales (1989) Law Com No 177, clause 82
of draft Bill.
122
Any person who seizes or detains and threatens to kill, to injure or to
continue to detain another person (hereinafter referred to as the
“hostage”) in order to compel a third party, namely, a State, an
international intergovernmental organization, a natural or juridical
person, or a group of persons, to do or abstain from doing any act as
an explicit or implicit condition for the release of the hostage commits
the offence of taking of hostages (“hostage-taking”) within the
meaning of this Convention.
It is not clear whether the omission of the phrase “as an explicit or implicit
condition for the release of the hostage” from the Taking of Hostages Act 1982
has the effect of making the offence under that Act go beyond the needs of the
Convention. However, this is not one of those topics where it is desirable for
international standards to be absolutely uniform and any extension is
disapproved of as “gold-plating”. Similarly we do not consider the omission of the
words “seizes or” to be significant. It is difficult to envisage a case in which
someone is “seized” for long enough for the threats to be made without that
seizure amounting to detention.
C.8 The offence can be committed by any person, and neither the Convention nor the
Act contains any geographical limitation or any requirement that more than one
country must be involved. It has however been argued that, since the Convention
was designed to deal with international terrorism, it would be improper to use this
provision in prosecuting a purely domestic act of kidnapping for ransom. If one
accepts this argument, it leaves two grey areas where it is uncertain whether a
prosecution under the Act would be appropriate: a purely commercial kidnapping
that happens to involve more than one country, and hostage-taking constituting
full-blown political terrorism taking place entirely within one country.
C.9 Hostage taking is a hybrid offence, in that it contains both an element of

kidnapping or false imprisonment and an element of blackmail. (By “blackmail”
we mean the broader statutory definition, namely demanding with menaces of
any kind, rather than the popular meaning of demanding by threat of exposure.)
Normally it should be sufficient to charge either or both of these offences,
especially as kidnapping and false imprisonment, being common law offences,
carry a potential life sentence. The reasons for having a dedicated offence are:
(1) to demonstrate compliance with the Convention;
(2) for the sake of appropriate labelling, to reflect the odium attached to
hostage taking;
(3) more practically, to allow the new offence to have full international scope
and to permit mutual extradition arrangements with other countries which
have enacted similar offences.
123
TRAFFICKING OFFENCES
C.10 The expression “people trafficking” is often used to mean what should more
naturally be called people smuggling, namely assisting people to evade
immigration control.11 This does not contain any element of kidnapping or
detention, and the person “trafficked” is not the victim of the offence of trafficking,
though there may be other offences involving mistreatment or exploitation on the
way.
C.11 Trafficking of people for sexual purposes is made an offence by sections 57 to 60

of the Sexual Offences Act 2003. This is wider than kidnapping, as it is defined as
“arranging or facilitating” the arrival, travel or departure of a person for the
purposes of sexual exploitation, meaning the commission of any offence under
sections 1 to 79 of the same Act. It therefore includes cases where the person is
acting voluntarily as a prostitute and there is no element of fraud or coercion.
C.12 Where the trafficking does involve kidnapping, it can be charged either as
trafficking, with a maximum sentence of 14 years, or as kidnapping or false
imprisonment, with a maximum sentence of life. (Where the trafficking is into the
UK, the initial capture may be exempt from the common law offence for
jurisdictional reasons, but the defendant can be charged in respect of the
continued detention of the person trafficked after his or her arrival.)
C.13 So far as non-sexual exploitation is concerned, section 4 of the Asylum and

Immigration (Treatment of Claimants etc) Act 2003 creates an offence of
‘trafficking people for exploitation’ and provides that a person commits an offence
if he or she arranges or facilitates the arrival in the UK (or subsequent travel
within the UK) of an individual and intends to exploit the individual or believes that
another person is likely to do so. ‘Exploitation’ is defined as including behaviour
which contravenes article 4 of the European Convention on Human Rights, as
well as subjecting someone to force, or using threats or deception designed to
induce him or her to provide or acquire services or benefits of any kind.
11
Immigration Act 1971 ss 25, 25A and 25B.
124
APPENDIX D – IMPACT ASSESSMENT
Title:
Impact Assessment (IA)
Kidnapping
IA No: LAWCOM0007
Lead department or agency:
Law Commission Date: 06.09.2011
Other departments or agencies: Stage: Consultation
Ministry of Justice Source of intervention: Domestic
Home Office
Type of measure: Primary legislation
Contact for enquiries:
Simon Tabbush
020 3334 0273
SUMMARY: INTERVENTION AND OPTIONS
What is the problem under consideration? Why is government intervention necessary?

The definition of kidnapping is uncertain. Some conduct that ought to be caught by an offence of kidnapping
is not under present law, e.g. the consensual abduction and forcible detention of a child is only likely to be
false imprisonment. There are uncertainties about the boundary between false imprisonment and
kidnapping, making it necessary to reform both offences. The ambiguity and uncertainty may lead to
wasted prosecutions and longer trials. Both offences are currently indictable only, with the result that even
relatively minor incidents charged as kidnapping or false imprisonment have to be dealt with at the Crown
Court when they could be dealt with more quickly and cost-effectively in a magistrates' court.
What are the policy objectives and the intended effects?

The objectives are (1) to make the offence of kidnapping just, certain and proportionate, so that it clearly
includes the cases that ought to be covered, (2) to clarify the boundary between false imprisonment and
kidnapping, and (3) to provide for magistrates' courts to have the power to deal with minor instances falling
within the scope of kidnapping and false imprisonment. The intended effect is to clarify the scope of these
offences and to ensure that minor instances of the offences can be dealt with by magistrates' courts in
appropriate cases.
What policy options have been considered? Please justify preferred option (further details in Evidence Base)
Option 0: Do nothing
Option 1: Replace kidnapping and false imprisonment with a single statutory offence of deprivation of liberty
triable either way
Option 2: Replace kidnapping and false imprisonment with one statutory offence of unlawful detention and
one statutory offence of kidnapping, both triable either way
Option 3: Replace kidnapping and false imprisonment with one either way statutory offence of deprivation of
liberty and a more serious offence of deprivation of liberty coupled with any of a list of aggravating factors.
In our Consultation Paper, we leave the choice between the other three open and express no preference.
When will the policy be reviewed to establish its impact and the extent to which It will not be reviewed
the policy objectives have been achieved?
Are there arrangements in place that will allow a systematic collection of No

monitoring information for future policy review?
Chair’s Sign-off For consultation stage Impact Assessments:

I have read the Impact Assessment and I am satisfied that, given the available evidence, it
represents a reasonable view of the likely costs, benefits and impact of the leading options.
Signed by the responsible Chair:............................................................................ Date:........................................
125
SUMMARY: ANALYSIS AND EVIDENCE POLICY OPTION 1
Description:
Replace kidnapping and false imprisonment with a single statutory offence of deprivation of liberty
Price Base PV Base Time Period Net Benefit (Present Value (PV)) (£m)
Year 09/10 Year 2011 Years 10 Low: Optional High: Optional Best Estimate: £2.84
COSTS (£m) Total Transition Average Annual Total Cost

(Constant Price) Years (excl. Transition) (Constant Price) (Present Value)
Low £0 Optional Optional
High £0 3 Optional Optional
Best Estimate £0.222 £0 £0.222
Description and scale of key monetised costs by ‘main affected groups’
Her Majesty’s Court Service (HMCS), Crown Prosecution Service (CPS): An initial spike in appeals for three
years, £77,250 per year.
HMCS, CPS, Her Majesty’s Prison Service (HMPS): The total number of prosecutions is not expected to
differ significantly from the number presently prosecuted for false imprisonment and kidnapping combined.
Other key non-monetised costs by ‘main affected groups’

There might be an adverse public perception of the fact that there will no longer be a specific offence of
kidnapping. Conversely, describing the new offence as “statutory kidnapping” would satisfy public
perceptions in more serious cases, but at the risk of over-stigmatising minor cases.
BENEFITS (£m) Total Transition Average Annual Total Benefit

Best Estimate £0 £0.470 £3.057
Description and scale of key monetised benefits by ‘main affected groups’
HMCS, CPS, LSC: The definition of the offence will be clearer, leading to a possible saving in legal
argument, in wasted prosecutions and in appeals. Having one and not two offences will render charging
decisions easier. This may save both prosecutorial and court time. Arguments relating to whether there was
movement of the victim and at what point in the conduct the detention arose will become irrelevant. Allowing
minor cases to be tried in a magistrates' court will save court and legal costs.
Other key non-monetised benefits by ‘main affected groups’
The redefinition would ensure that it will clearly be criminal to entice and confine a child or mentally impaired
person. Clarifying the offence would increase its perceived effectiveness. Minor cases can be tried in the
magistrates' court and not over-stigmatised.
Key assumptions/sensitivities/risks Discount rate (%) 3.5

Assumptions: 1. Zero training costs and 2. An initial spike in applications for leave to appeal and appeals
from years 0 to 2 for all policy options. Subsequently appeals will return to the previous level or lower. For
Option 1 we have assumed a 25% increase.
Risks: 1. A moderate risk of initial disputes about definitions (e.g. of deprivation of liberty) unless drafted
very carefully and 2. A moderate risk of adverse public reaction unless the “kidnapping” label is retained.
Impact on admin burden (AB) (£m): Impact on policy cost savings (£m): In scope
New AB: £0 AB savings: £0 Net: £0 Policy cost savings: £0 No
126
ENFORCEMENT, IMPLEMENTATION AND WIDER IMPACTS
What is the geographic coverage of the policy/option? England and Wales
From what date will the policy be implemented?
Which organisation(s) will enforce the policy? HMCS, Police, CPS
What is the annual change in enforcement cost (£m)? £0
Does enforcement comply with Hampton principles? Yes
Does implementation go beyond minimum EU requirements? N/A
What is the CO2 equivalent change in greenhouse gas emissions? Traded: Non-traded:
(Million tonnes CO2 equivalent) 0 0
Does the proposal have an impact on competition? No
What proportion (%) of Total PV costs/benefits is directly attributable to Costs: Benefits:
primary legislation, if applicable? 100% 100%
Percentage of annual cost per organisation Micro < 20 Small Medium Large
0% 0% 0% 0% 0%
Are any of these organisations exempt? No No No No No
SPECIFIC IMPACT TESTS: CHECKLIST
Set out in the table below where information on any SITs undertaken as part of the analysis of the policy
options can be found in the evidence base. For guidance on how to complete each test, double-click on
the link for the guidance provided by the relevant department.
Please note this checklist is not intended to list each and every statutory consideration that departments
should take into account when deciding which policy option to follow. It is the responsibility of
departments to make sure that their duties are complied with.
Does your policy option/proposal have an impact on…? Impact Page ref
within IA
Statutory equality duties1 Yes/No
Statutory Equality Duties Impact Test guidance
Economic impacts
Competition Competition Assessment Impact Test guidance No
Small firms Small Firms Impact Test guidance No
Environmental impacts
Greenhouse gas assessment Greenhouse Gas Assessment Impact Test guidance No
Wider environmental issues Wider Environmental Issues Impact Test guidance No
Social impacts
Health and well-being Health and Well-being Impact Test guidance Yes/No
Human rights Human Rights Impact Test guidance Yes/No
Justice system Justice Impact Test guidance Yes
Rural proofing Rural Proofing Impact Test guidance No
Sustainable development No
Sustainable Development Impact Test guidance
1
Race, disability and gender impact assessments are statutory requirements for relevant policies. Equality statutory requirements will
be expanded 2011, once the Equality Bill comes into force. Statutory equality duties part of the Equality Bill applies to GB only. The
Toolkit provides advice on statutory equality duties for public authorities with a remit in Northern Ireland.
127
Description:
Replace kidnapping and false imprisonment with one statutory offence of unlawful detention and one
statutory offence of kidnapping

Her Majesty’s Court Service (HMCS), Crown Prosecution Service (CPS): An initial spike in appeals for three
years, £154,500 per year.
HMCS, CPS, HMPS: The total number of prosecutions is not expected to differ significantly from the
number presently prosecuted for false imprisonment and kidnapping combined.

There may still be cases in which there is difficulty in deciding which of the two new offences to charge; but
there will be less difficulty than in deciding between false imprisonment and kidnapping in existing law, and
therefore this does not represent an additional cost compared to Option 0.

HMCS, CPS, LSC: The definition of the kidnapping offence will be clearer, leading to a possible saving in
legal argument, in wasted prosecutions and in appeals. This may save both prosecutorial and court time.
Allowing minor cases to be tried in a magistrates' court will save court and legal costs.

The kidnapping offence will be defined to include certain cases that are at present excluded or doubtful,
principally the enticement and subsequent detention of children and mentally impaired persons. This will not
lead to increased cost, as at present these cases can be prosecuted as false imprisonment. The labelling of
cases will be more in accordance with the popular meaning of kidnapping. Minor cases can be tried in the
magistrates' court and not over-stigmatised.
Risks: 1. A moderate risk of borderline difficulties between the two offences and 2. A moderate risk that both
offences will have to be charged at alternative counts in such cases which will increase court costs.
128
0% 0% 0% 0% 0%
within IA
Economic impacts
Social impacts
2
be expanded 2011, once the Equality Bill comes into force. The statutory equality duties part of the Equality Bill applies to GB only.
The Toolkit provides advice on statutory equality duties for public authorities with a remit in Northern Ireland.
129
Description:
Replace kidnapping and false imprisonment with one either way statutory offence of deprivation of liberty
and a more serious offence of deprivation of liberty coupled with any of a list of aggravating factors

Judicial College: Training costs are £0; Her Majesty’s Court Service (HMCS), Crown Prosecution Service
(CPS): An initial spike in appeals for three years, £154,500 per year; HMCS, CPS, HMPS: The total number
of prosecutions is not expected to differ significantly from the number presently prosecuted for false
imprisonment and kidnapping combined. As the more serious offence includes a number of factors, extra
time and resources may be required to prove those factors
The law will be perceived as complex. The burden of proving the aggravated offence would be greater than
in the other models as there are more facts to prove, including the defendant’s ulterior intention, and there
would be fewer guilty pleas to this offence. The list of ulterior acts that must be intended might prove to be
under-inclusive and subsequent legislative amendment may be necessary.
HMCS, CPS, LSC: The definition of the basic offence will be clearer, leading to a possible saving in legal
argument, in wasted prosecutions and in appeals. By not distinguishing detention from abduction, it obviates
the need for time and effort in deciding which offence to charge. This may save both prosecutorial and court
time. Allowing minor cases to be tried in a magistrates' court will save court and legal costs.

The law will be clearer and more in accordance with the public perception of kidnapping. The minor cases
will be excluded from the more serious offence. Minor offences will be tried in the magistrates' court and not
over-stigmatised.
Other affected groups are children and other vulnerable persons, as potential victims of the offence. As in
options 1 and 2, their position will be made clearer and the offence will give them better protection.

Risks: 1. A moderate risk of public dissatisfaction with the list of factors, with the consequent need for
amendment, 2. A moderate risk of difficulties in proving an ulterior intention and 3. A low risk of borderline
disputes.
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0% 0% 0% 0% 0%
within IA
Economic impacts
Social impacts
3
be expanded 2011, once the Equality Bill comes into force. The statutory equality duties part of the Equality Bill apply to GB only.
The Toolkit provides advice on statutory equality duties for public authorities with a remit in Northern Ireland.
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EVIDENCE BASE (FOR SUMMARY SHEETS) – NOTES
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you have generated your policy options or proposal. Please fill in References section.
References
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No. Legislation or publication

1 Simplification of Criminal Law: Kidnapping (Law Com CP No …)
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stages (e.g. Consultation, Final, Enactment).
Evidence Base
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summary pages of this form (recommended maximum of 30 pages). Complete the Annual profile of
monetised costs and benefits (transition and recurring) below over the life of the preferred policy (use
the spreadsheet attached if the period is longer than 10 years).
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an impact on greenhouse gas emissions.
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132
EVIDENCE BASE (FOR SUMMARY SHEETS)
1. INTRODUCTION
Background
This project forms part of the wider project for the simplification of criminal law. The purpose of the wider
project is to review some older common law offences, so as to consider either abolishing them or
restating them in statute. The current instalment of this project concerns kidnapping.
Kidnapping is a common law offence: particular forms of it first appeared in the seventeenth century. It
attained a more comprehensive form in the early nineteenth century, and is now defined (following the
House of Lords decision in D [1984] AC 778) as an attack on infringement of personal liberty, consisting
of the taking or carrying away of one person by another, by force or fraud, without the consent of the
person taken or carried away and without lawful excuse. “Taking or carrying away” includes any means
of moving a person from one place to another, or of inducing that person to move him or herself.
In Hendy-Freegard [2008] QB 57 it was clarified that the kidnapper had to accompany the victim, and
that simply causing a person to move from one place to another, without circumstances indicating loss of
liberty, was not sufficient.
In Wellard (1978) 67 Cr App R 364 the defendant posed as a police officer searching for drugs and
ordered the victim to accompany him to his car, but the victim’s friends arrived and she went away with
them before the car could be driven anywhere. It was held that this was a taking, and a deprivation of
liberty, sufficient to constitute the offence. However it was not stated whether the loss of liberty occurred
during the walk to the car or while sitting in it, or whether this made a difference to whether the offence
had been committed.
Kidnapping is sometimes regarded as an aggravated form of false imprisonment, which is a common law
offence including every act whereby one person intentionally or recklessly circumscribes the freedom of
movement of another without lawful excuse. The sentence for both offences is unlimited.
Both kidnapping and false imprisonment are currently indictable-only offences, meaning that they can
only be tried in the Crown Court. There are generally 600-750 prosecutions a year for kidnapping which
reach a first hearing at the magistrates’ court (figures supplied by CPS), of which between 100 and 150
result in conviction (figures supplied by Ministry of Justice via Sentencing Council). For false
imprisonment, the figures are as follows. 1100-1200 prosecutions per year reach a first hearing at the
magistrates’ court, of which between 200 and 250 result in conviction. However the figures for first
hearings and for convictions are not directly comparable, as the number of prosecutions reflects the
number of charges rather than the number of persons charged.
The problem
Briefly, the problems are as follows.
1. In relation to kidnapping it is not clear whether the essential element of a “deprivation of liberty” must
occur during the taking and carrying, or whether it is sufficient that it occurs after it. After Hendy-
Freegard it appears that every kidnapping must contain both an element of abduction and an
element of detention. It is still not clear whether it can consist of abduction followed by detention, or
whether the abduction must take the form of detention in motion.
2. The requirements of force or fraud and lack of consent are separate and cumulative, though they
largely exist for the same purpose. This creates problems where a young child or a mentally ill or
learning disabled person is enticed to go to a place and does not consent, but the taking does not
involve force or fraud. This deficiency was underlined by Munby LJ in HM (Vulnerable Adult:
Abduction).4
3. For both these reasons, it is doubtful whether the offence covers some cases that ought to be
included, principally the enticement of a child or mentally incapacitated person who puts up no
resistance followed by the confinement of that person at the destination.
4. This causes problems regarding the boundary between kidnapping and false imprisonment.
Kidnapping is generally regarded as the more serious offence of the two, though the sentencing
4
[2010] EWHC 870 (Fam); [2010] 2 FLR 1057.
133
powers are the same; but it is not clear why detention in motion should be considered worse than
detention in one place, or why they should be separate offences at all.
5. The offences of kidnapping and false imprisonment can cover a wide range of behaviour, some very
serious and some far less so. Currently these offences are indictable only with the result that even
the less serious cases must be dealt with in the Crown Court when it would be more appropriate and
proportionate to do so in the magistrates’ court.
Some of these problems particularly affect children and mentally impaired adults: their position needs to
be explained in more detail.
CHILDREN
At present there are three main offences relating to the abduction of children. Section 1 of the Child
Abduction Act 1984 addresses abduction by parents, for example in the course of a custody battle, but
only where the child is taken or sent outside the UK. Section 2 of that Act addresses abduction by
unconnected persons, where the effect is to remove the child from the custody of parents or guardians.
The maximum penalty for both offences is seven years’ imprisonment. Finally there is kidnapping, which
as we have seen can only be used where the child was forcibly taken or captured by deception: where
the kidnapping was by a parent or guardian, the consent of the Director of Public Prosecutions is
required for any prosecution.
The difficulty with this is that the more serious offence, kidnapping, does not cover the case where a
child comes willingly, following a show of friendliness or a promise of toys or sweets, to a destination
where he or she is then confined, even if ransom demands are made or the child is ill-treated at that
destination. The reason for this is that, though the child was in a sense taken without consent (as the
child lacked capacity to consent), there is no identifiable force or fraud, and force or fraud is an essential
part of kidnapping. A case of this kind can only be prosecuted as false imprisonment or as the section 2
offence, which does not convey the full gravity of what occurred. By contrast, if any sort of deception is
used, it is kidnapping, even if the child was only taken a short distance and later released unharmed.
MENTALLY IMPAIRED ADULTS

The same problem arises in connection with mentally impaired adults. Where a person in this category is
invited to a place and subsequently confined there, there is a “taking”, and it is without consent because
of the victim’s lack of capacity. But there is no kidnapping because the taking was not by force or fraud.
In these cases there is no offence equivalent to child abduction and false imprisonment is the only
possible charge. This was the situation discussed in HM (Vulnerable Adult: Abduction), as mentioned
above.
The objective and intended effects

The objective of this part of the simplification project is to replace the existing offences of kidnapping and
false imprisonment with one or more clearly defined offences set out in statute. The intended effects
include:
1. clarifying the scope of the offence of kidnapping to ensure that the scope of kidnapping no longer
omits taking without consent in the absence of force or fraud;
2. clarifying the protection for children and mentally impaired persons;
3. paving the way for codification of the criminal law;
4. (in the version of our proposals here considered) ensuring that, in appropriate cases, the
magistrates’ have the power to deal with the less serious instances of wrong-doing falling within the
scope of the offences.
The rationale
This objective can only be achieved through legislation, as it involves the creation of a new statutory
offence or offences.
The conventional economic approach to government intervention to resolve a problem is based on
efficiency or equity arguments. The Government may consider intervening if there are failures in the way
markets operate (e.g. monopolies overcharging consumers) or if there are failures in existing
government interventions (e.g. waste generated by misdirected rules). In both cases the proposed new
intervention itself should avoid creating a further set of disproportionate costs and distortions. The
134
Government may also intervene for equity (fairness) and redistributional reasons (e.g. to reallocate
goods and services to the more needy groups in society).
Within this analysis, the present project falls within the waste and equity justifications. The classification
of these offences as indictable only means that unnecessary resources are used on taking certain cases
through the Crown Court which would be dealt with more appropriately at the magistrates’ court.
Uncertainty in the law may lead to lengthier legal argument, unnecessary appeals and wasted
prosecutions.
Option description
Introduction
As in all impact assessments, Option 0 is to do nothing, and the other options, involving reform, are
measured against it. Options 1, 2 and 3 all involve the replacement of both kidnapping and false
imprisonment with one or more statutory offences. In the Consultation Paper we indicate no preference
among these options.
Another issue raised in the Consultation Paper is mode of trial. At present both kidnapping and false
imprisonment are triable on indictment only: that is to say, they must always be tried by the Crown Court.
In the Consultation Paper we raise the possibility of making the new offence or offences triable either
way: that is to say, either by the Crown Court or in a magistrates’ court. This possibility applies equally to
all three of Options 1 to 3. For reasons which will appear, the economic impact of redefining the
offences, without altering the mode of trial, is unlikely to be very great. In this Impact Assessment we
therefore assume that all three proposals will involve allowing magistrates’ court trial in some cases.
This option would leave the common law offence of kidnapping in its existing form, namely an attack on
personal liberty consisting of the taking or carrying away of one person by another, by force or fraud,
without the consent of the person taken or carried away and without lawful excuse. It would also leave
the existing offence of false imprisonment in its existing form, namely any act whereby one person
intentionally or recklessly circumscribes the freedom of movement of another without lawful excuse.
Option 1: Replace kidnapping and false imprisonment with a single statutory either way
offence of deprivation of liberty
Option 1 would be to replace the separate offences of kidnapping and false imprisonment with one
offence triable either way targeting intentional or reckless conduct that causes non-consensual loss of
freedom of movement, irrespective of whether the detention arises in transit or afterwards.
1. There would be no separate requirement of taking by force or fraud, as with kidnapping at present:
force and fraud would be simply two possible reasons for lack of consent.
2. Where the victim is moved and undergoes stationary detention as a result of the same course of
conduct, the whole series of events would fall within the loss of freedom of movement.
3. There would be no requirement that the defendant accompanies the victim during the moving
process.
The advantage of this option is simplicity. As there would be only one offence, any problems concerning
the boundary between the two existing offences would be eliminated.
Option 2: Replace kidnapping and false imprisonment with a statutory either way offence of
unlawful detention and a statutory either way offence of kidnapping
In this option, the distinction between false imprisonment and kidnapping would remain, and the
requirement of detention, or loss of liberty, would remain part of the kidnapping offence. In these
respects this option would reproduce the existing law in statutory form. There would however be some
changes, though less radical than under option 1.
1. There would be no separate requirement of taking by force or fraud: force and fraud would be simply
two possible reasons for lack of consent.
2. Where the victim is moved and undergoes stationary detention as a result of the same course of
conduct, the whole series of events would fall within the kidnapping offence.
3. There would be no requirement that the defendant accompanies the victim during the moving
process.
135
The advantage of this option is that it reflects the public perception that kidnapping is a wrong distinct
from false imprisonment. At the same time, the scope of kidnapping would be broadened so as to avoid
the anomalies and uncertainties in the existing definition.
Option 3: Replace kidnapping and false imprisonment with a statutory either way offence of
deprivation of liberty and a more serious indictable only offence of deprivation of liberty
coupled with any of a list of aggravating factors
In this option, there would be a basic either way offence of deprivation of liberty, covering both stationary
detention and cases where the victim is moved, exactly as in Option 1.
There would in addition be an aggravated offence, consisting of deprivation of liberty where any of the
following types of conduct is intended, namely:
1. the infliction or threat of force or actual bodily harm;
2. obtaining or demanding ransom or some other advantage;
3. holding the person detained or abducted in service;
4. sending that person out of the country.
The aggravated offence would be triable only on indictment.
The advantage of this option is that it reflects the public perception that kidnapping is an exceptionally
serious offence. Accordingly the distinction between kidnapping and the more basic offence would
depend on the overall seriousness of the crime rather than on whether the victim is moved or not.
Scale and Context

Both kidnapping and false imprisonment are currently indictable-only offences, meaning that they can
only be tried in the Crown Court. A person accused of one of these offences is brought before a
magistrates’ court, but under section 51 of the Crime and Disorder Act 1998 the court must then
immediately send the case to the Crown Court, forwarding any necessary documents. This should be
contrasted with the procedure in offences triable “either way”, where the magistrates’ court has an active
role in considering which court should try the case, and gives the defendant the opportunity to consider
whether to plead guilty.
There are generally 600-750 prosecutions a year for kidnapping which reach a first hearing at the
magistrates’ court (figures supplied by CPS), of which between 100 and 150 result in conviction (figures
supplied by Ministry of Justice via Sentencing Council). For false imprisonment, the figures are as
follows. 1100-1200 prosecutions per year reach a first hearing at the magistrates’ court, of which
between 200 and 250 result in conviction. However the figures for first hearings and for convictions are
not directly comparable, as the number of prosecutions reflects the number of charges: a case where a
defendant faces two charges of kidnapping counts as two prosecutions. The figures for convictions on
the other hand reflect the numbers of individuals dealt with.
Ministry of Justice statistics for 2010 (http://www.justice.gov.uk/downloads/publications/statistics-and-
data/criminal-justice-stats/volume-1.zip Volume 1 Part 1 Table S1.1(A)) indicate that a total of 1196
individuals were committed for trial for “kidnapping etc”. They further indicate
(http://www.justice.gov.uk/downloads/publications/statistics-and-data/criminal-justice-stats/volume-2.zip
Volume 2 Part 1 Table S2.1(A)) that, in the same year and offence group, 730 individuals were listed for
trial, of whom 350 were acquitted, 362 convicted and 18 not tried.5
In 2010, out of the 362 convicted, 95 pleaded guilty to kidnapping while 55 were convicted after trial; 158
pleaded guilty to false imprisonment while 53 were convicted after trial; in one case the plea was not
recorded.
The Ministry of Justice research paper “Are Juries Fair” gives a conviction rate of 52.9% for kidnapping
and 55.2% for false imprisonment for the years 2006-08.6 These figures are based on a sampling
method rather than on the total of all cases for the period.
5
Figures supplied by Sentencing Council.
6
C Thomas, Are Juries Fair? (2010 Ministry of Justice), Technical Annex 9.
136
We do not have any data on the average length of trials, but we do have sentencing data. Tables 1 to 3
below show the sentences passed over a period of 11 years (2000 to 2010), in relation to the total
number of kidnapping and false imprisonment convictions.
Table 1: Average number (and range) of sentences in kidnapping cases, 2000-2010*
Period range Annual Percentage of
Sentence 2010
(Min – Max) average cases
Non-custodial 6 4-29 14 10%
Suspended sentence 8 1-23 7 5%
6 months or less 2 1-5 3 2%
over 6 months to 3 years 51 33-74 56 37%
over 3 years to 5 years 25 22-39 29 19%
over 10 years 18 4-34 17 11%
Total 151 107-194 151 100%
Within power of magistrates 8 6-32 17 11%
Within power of magistrates (%) 5% 4-21% 11% N/A
Source: Ministry of Justice; Sentencing Council
* Annual sentencing data for 2010 (latest available) is also provided
Table 2: Average number (and range) of sentences in false imprisonment cases, 2000-2010*
Sentence 2010
Min-Max average cases
over 10 years 30 2-38 17 7%
Total 219 214-262 233 100%
Within power of magistrates (%) 18% 17%-34% 27% N/A
* Annual sentencing data for 2010 (latest available) is also provided
137
Table 3: Average number (and range) of sentences for both offences, 2000-2010*
Both offences together 2010
Min-Max average cases
over 10 years 48 6-72 34 9%
Total 370 334-425 384 100%
Within power of magistrates (%) 13% 13%-29% 21% N/A
The mean length of custodial sentences for kidnapping is 4 years 2 months, 40% higher than that for
false imprisonment, 2 years 11 months. These figures exclude indeterminate sentences such as life
sentences and indeterminate sentences of imprisonment for public protection.
The estimated annual cost of one prison space depends on the category and ranges between £31,374
and £69,885, with an average of £44,703.7 The most common sentence length for all of the offences is
between one and two years.
Our reforms may impact on the number of application for leave to appeal against conviction and appeal
heard. The data on current appeals is tabulated below.
Table 4: Applications for leave to appeal and appeals against conviction (June 2010 – May 2011)
Applications Percentage
Heard Allowed
for appeal Heard
False imprisonment 6 3 50% 3
Kidnapping 22 6 27% 3
Total 28 9 32% 6
Source: Her Majesty’s Court Service
The main affected bodies are:

1. the courts;
2. the prosecutors;
3. the police and;
4. the Legal Services Commission.
7
Information from the Ministry of Justice.
138
2. COSTS AND BENEFITS
This Impact Assessment identifies both monetised and non-monetised impacts on

individuals, groups and businesses in the UK, with the aim of understanding what the
overall impact to society might be from implementing these options. The costs and benefits
of each option are compared to the do nothing option. Impact Assessments place a strong
emphasis on valuing the costs and benefits in monetary terms (including estimating the
value of goods and services that are not traded). However there are important aspects that
cannot sensibly be monetised. These might include how the proposal impacts differently on
particular groups of society or changes in equity and fairness, either positive or negative.
When calculating the net present value (NPV) for the impact assessment we have used a time frame of
ten years, with the present being year 0. We have assumed that the transitional costs and benefits occur
in years 0, 1 and 2, and on-going costs and benefits accrue in year 1 to 10. We have used a discount
rate of 3.5%, in accordance with HM Treasury guidance. Unless stated all figures are in 2009/10 prices,
and have been uprated using the GDP deflator.
The Ministry of Justice guidance on rounding says that figures below one million are rounded to the
nearest £500,000. However as our figures are very low this would make it impossible to distinguish
between the different policy options. We have therefore left the figures unrounded.
This option avoids any immediate implementation costs. However the problems identified in the present
law of kidnapping will continue, for example the boundary between kidnapping and false imprisonment.
In particular there will continue to be doubts about whether the offence covers the following types of
cases:
 where a child or vulnerable adult is abducted without the use of physical compulsion or deception;
 where a person is abducted and then confined at the destination, though he or she was not in any
way coerced or confined during the journey to that destination.
Though these uncertainties have not hitherto been reflected in the evidence base, they have the
potential to give rise to lengthy trials, failed prosecutions in doubtful cases and a disproportionately high
number of successful appeals.
The offence of kidnapping will also continue to cover minor incidents, for which false imprisonment would
be fully adequate, while excluding far more serious instances such as Hendy-Freegard.
In some cases minor incidents will not lead to prosecution, as prosecutors will use their discretion not to
prosecute on public interest grounds; however this will not always be possible. Where there is no
suitable alternative charge and the conduct is serious enough to warrant prosecution there may be no
alternative but to charge kidnapping or false imprisonment even though they are indictable only
As a result, under Option 0 relatively minor incidents charged as false imprisonment or kidnapping will
continue to have to be dealt with in the Crown Court, incurring unnecessary expense and longer
hearings than if they could have been dealt with in a magistrates’ court.
Because the do-nothing option is compared against itself its costs and benefits are necessarily zero, as
is its Net Present Value (NPV)8.
8
The Net Present Value (NPV) shows the total net value of a project over a specific time period. The value of the
costs and benefits in an NPV are adjusted to account for inflation and the fact that we generally value benefits
that are provided now more than we value the same benefits provided in the future.
139
Option 1: Replace kidnapping and false imprisonment with a single statutory either way
offence of deprivation of liberty
Costs
Transitional costs
1. Training
Judges will require appropriate training and guidance about the legal change. Since this change is
simple and easy to explain, the Judicial College would probably not need to roll out training. Instead
notification of the change would be included in the criminal newsletter. The newsletters come out
monthly. Inclusion into the newsletter would be at no additional cost.
Therefore the net present value of this cost is £0.
2. Increase in appeals
As with all reforms, there may be a small spike in appeals while practitioners and judges come to terms
with the new law.
We assume that the spike in appeals will be generated by cases tried in the Crown Court, and so will be
heard by the Court of Appeal Criminal Division. There is no current data on the average cost of an
appeal to the Court of Appeal. We do have the following data:
 The estimated cost of a day’s sitting for the Court of Appeal Criminal Division in 2009/10 is
£16,635.
 A simple model of the average cost to the criminal justice system of an appeal against a conviction
or sentence imposed by the Crown Court is £20,821 (in 2009/10 prices).9
 If leave is refused on the papers, the court will not sit and the cost will be far lower. However, an
application for leave to appeal potentially increases the workload for those who handle the leave
applications – the judges and staff of the Crown Court – and for those who handle the appeals
against the refusal of leave, namely the judges and staff of the Court of Appeal Criminal Division,
even if leave is refused. We have estimated that an application for leave to appeal costs £3,000.
The figure of £20,821 for the cost of an appeal includes legal aid costs and costs to the CPS. It does not
include any private costs to the defendant and so the figure might be an underestimate. To account for
this we have used the estimate of £25,000 for the cost of an appeal in the Court of Appeal.
We have estimated a 25% increase in the applications for leave to appeal against conviction per year,
which will be paired with a 25% increase in appeals heard. This increase will begin in year 0 and end in
year 2. The costs are tabulated below:
Table 5: Costs from transitional increase in appeals

Percentage increase in applications 25%
Number of additional applications 7
Cost per application £3,000
Cost of additional applications £21,000
Number of additional appeals heard 2.25

Cost per appeal £25,000
Cost of additional appeals £56,250
Additional annual cost £77,250

Present value £221,563
9
R Harries, Cost of Criminal Justice (Home Office Research, Development and Statistics Directorate Research
Findings No 103, 1999). This research has excluded some costs, such as compensation.
140
On-going costs
The new offence will cover the same range of cases as the two existing offences: the number of cases
prosecuted should in principle be the same as at present. Some situations in which at present it is
uncertain whether the conduct amounts to kidnapping will certainly fall within the new offence. However
we do not anticipate that this will result in an increase in prosecutions or convictions overall, since such
cases would almost certainly fall within the scope of other offences at present.
The power of sentencing for the two existing offences is presently unlimited. Since the reform under this
option would only remedy existing defects in the current law and would not significantly change the
nature of the offence it is not anticipated that more severe sentences would be passed as a result.
Offenders are sentenced according to considerations such as their culpability, the harm caused, their
remorse and previous convictions and these factors would not be affected by the reform proposed under
this option.
As the new offence replaces both false imprisonment and kidnapping, and resembles false imprisonment
in its emphasis, unless the label kidnapping is used in some form in the offence there may be an adverse
public and press reaction to the fact that the offence of kidnapping, which carries a special stigma, has
been abolished apparently without replacement, although this risk may be reduced by careful
explanation of the benefits of reform. Conversely, if the new offence is described as “kidnapping” that
may dilute the impact of the word by applying it to all cases of unlawful detention.
Benefits
Transitional benefits
There are no transitional benefits of this option to our knowledge.
On-going benefits
1. Prosecution savings
As explained above, the new offence will cover the same range of cases as the two existing offences. By
merging the two offences into one, Option 1 should in principle save the need to spend time and
resources deciding which to charge, and with it the possibility of failed prosecutions because the wrong
offence was charged. However, as we do not know how many of these borderline cases there are at
present, we cannot put a figure on this possible saving.
At present the conviction rates for kidnapping and false imprisonment are in the range 52-55%, as
opposed to an average of 65% for all offences, and two thirds of appeals against conviction for these
offences heard by the Court of Appeal Criminal Division are allowed. We do not know whether the
reason for these differences is connected with the uncertainties we have identified in the definition of the
offences, but this is clearly a possibility. If so, the increased clarity of the new offence should improve
both these figures by excluding doubtful cases.
2. Security of children and mentally impaired persons

An important practical impact made by our proposals will be on the abduction of children and mentally
impaired persons: the scope of the offence will be clarified to include wrongful instances where they are
lured away and then confined.
At present the abduction of children without the use of force or fraud, even if followed by their detention
by force or fraud, is not kidnapping, though it may be false imprisonment or child abduction. This option,
by removing the distinction between kidnapping and false imprisonment, resolve this anomaly.
The same problem arises in connection with mentally impaired adults. In these cases there is no offence
equivalent to child abduction and false imprisonment is the only possible charge. Reform is therefore
even more important in relation to this group. By merging the two offences our proposals resolve this
problem.
3. Court savings as a result of reclassifying the offences as either way
Between 2000 and 2010 11% of kidnapping cases and 27% of false imprisonment cases resulted either
in a non-custodial sentence or in a sentence of 6 months or less: the figures are set out in more detail in
141
tables 1 and 2. (We exclude suspended prison sentences from these figures as we have no information
on the length of the sentences.) Taking the two offences together, at least 21% of cases during this
period were dealt with by way of a sentence that could have been passed by a magistrates’ court. Under
this option less serious incidents of this sort could be dealt with by magistrates’ courts instead of being
sent to the Crown Court.
From the figures in the Crown Prosecution Service Annual Report for 2009/10 it can be calculated that,
over the period from 2007/08 to 2009/10 inclusive, out of all prosecutions for “either way” offences
reaching the magistrates’ courts, 14.4% are committed for Crown Court trial on the magistrates’
direction, 2.0% are committed on the defendant’s election and 83.6% are tried summarily. It follows that,
in 2.3% of all “either way” cases regarded by the magistrates as suitable for trial by them, the defendant
elects for Crown Court trial.
Assuming that 2010 is a typical year, the total number of cases of kidnapping and false imprisonment
listed for trial in the Crown Court is approximately 730 per year, of which 250 plead guilty, 110 are
convicted after trial and 370 acquitted or not tried: we expect the corresponding figures for the new
offence to be similar. In what follows we disregard those cases which come before a magistrates’ court
and are not committed, as they will not be affected by our proposals. We also take no account of cases
in which kidnapping or false imprisonment is charged but is not the principal offence, as we have no
figures for the outcome of these.
One effect of making the new offence triable either way is that, in some cases, the defendant will plead
guilty before the magistrates, who will either pass sentence themselves or commit the defendant to the
Crown Court for sentence. This may bring about some saving in costs but we do not have sufficient data
to quantify this.
As concerns the cases that go for trial, we can assume (by extrapolating from the sentencing figures)
that 21% would be regarded as suitable for trial in the magistrates’ court. In a certain proportion of cases,
the defendant would elect for Crown Court trial: this proportion may well be higher than that for the whole
range of either-way offences, where there is a higher proportion of guilty pleas and magistrates’ courts
deal with a far higher proportion even of the cases that are contested. For this reason, rather than
assuming that defendants will elect Crown Court trial in 2.3% of cases regarded as suitable for trial by
magistrates, we shall assume that they elect in 2% of all contested cases whether regarded as suitable
or not, leaving 19% of contested cases to be tried in magistrates’ courts, i.e. 87 cases per year (350
acquitted plus 55 convicted of kidnapping plus 53 convicted of false imprisonment makes 458; 19% of
458 is 87).
We have no figures for the length of trials in kidnapping and false imprisonment cases. We may assume
that, in the least serious cases, where a sentence of 6 months or less is likely, Crown Court trial will take
one or two days. Removing the need for instructing the jury and for jury discussion, one may assume
that the same case in a magistrates’ court would take half a day to just over a day (allowing for the
magistrates to deliberate overnight in more complex cases).
We have assumed that a Crown Court “sitting” occupies a whole day (4.45 hours on average) and costs
£4,454 on average, whereas a magistrates’ court “session” takes only half a day (2.5 hours), and costs
£2,005 on average. Consequently, there is one Crown Court sitting per day and two magistrates’ court
sessions per day. A full day in a magistrates’ court is estimated to cost £4,010.
A case within the “least serious” category should therefore cost on average £6,700 in the Crown Court
and £3,300 in a magistrates’ court. The proposal to allow magistrates’ court trial in these cases should
lead to a saving of 87 x £3,400, i.e. £295,800 a year in court costs.
In addition to this there will be savings in legal fees. Under the Criminal Defence Service’s Graduated
Fee Scheme the basic fee for a junior advocate appearing alone in the Crown Court to defend a charge
of kidnapping or false imprisonment is £1509: where the trial lasts more than two days, or there are more
than 10 prosecution witnesses or more than 50 pages of documentary prosecution evidence, the
appropriate uplifts apply. In a magistrates’ court, the maximum basic advocate’s fee is £468; should the
trial go to a second day an additional sum of up to £162 is payable (2010 Standard Crime Contract –
Specification, Payment Annex October 2011). On average, then, there will be a saving to the Criminal
Defence Service of approximately £1000 per case: we may assume that the prosecution saving is
similar. (We assume that the fee payable to a defence solicitor who does not act as an advocate is
similar in both courts.) The total saving in legal fees should be 87 x £2000, i.e. £174,000 a year. Table 6
below shows the total savings.
142
Table 6: Annual court and legal fee savings as a result of reclassification
Category of Savings Savings
Transfer of “Least serious” cases from Crown
Court to Magistrates (87 x £3,400)
£295,800
Reduced legal fees (87 x £174,000) £174,000
Total annual savings £469,800

Present value over ten years £3,057,417
4. Possible savings in prison costs

As pointed out above, the sentence for both the existing offences are unlimited, and the overall number
of cases should not increase as a result of our proposal, so no extra prison costs should result. Should a
fixed maximum sentence be introduced there may even be a small reduction if the maximum is set lower
than the longest prison sentences currently passed, although such a change may not be welcomed by
the public. As no proposals have been made about sentencing we cannot attach a figure to this
reduction and we do not count it as a monetised benefit.
Reclassification as an either way offence would mean that those cases sentenced at the magistrates’
court would be subject to its maximum sentencing powers of 6 months imprisonment. However a
significant proportion of both kidnapping and false imprisonment cases are currently dealt with by
sentences that could be passed by a magistrates’ court and it is anticipated that these are the cases that
would be dealt with at the magistrates’ courts once the offence is reclassified as either way. In some
cases it may be found, following trial in a magistrates’ court, that the offence was more serious than
originally thought and that Crown Court powers of sentencing would have been appropriate; but in these
cases the magistrates’ court has power to commit the case to the Crown Court for sentence. We
therefore do not expect significant savings in prison resources as a result of making the offence triable
either way.
Net impact
Table 7: Net impact of option 1

Best estimate
Transitional costs £221,563
Ongoing costs (annual) £0
Present value of costs £221,563
Transitional benefits £0
Ongoing benefits (annual) £469,800
Present value of benefits £3,057,417
Net present value £2,835,854
143
Option 2: Replace kidnapping and false imprisonment with one statutory offence of
unlawful detention and one statutory offence of kidnapping
Costs
Transitional costs
The costs associated with judicial training are the same as in Option 1, £0.
As with Option 1 there is a possible spike in appeals. The costs per appeal and per day’s sitting would
be the same as in Option 1. However, given the somewhat greater complexity of this option, and the
possibility of cases on the boundary between unlawful detention and kidnapping, the number of appeals
may be somewhat higher. We have estimated a 50% increase in the applications for leave to appeal
against conviction per year, which will be paired with a 50% increase in appeals heard. This increase will
begin in year 0 and end in year 2. The costs are tabulated in table 8 below:
Table 8: Costs from transitional increase in appeals



On-going costs
Under Option 2, the two offences will between them cover the same range of cases as the two existing
offences: the only change will be in the boundary between them. There should therefore be no increase
in prosecutions.
The boundary between the two offences would be to some extent arbitrary and in some cases there may
be difficulties in deciding which to charge. However, as the definition of kidnapping would be clarified to
include periods of detention forming part of the same course of conduct, and as the separate
requirement of force or fraud would be removed, this problem would be on a smaller scale than in the
existing law. In cases of doubt it will be possible to charge both offences together or in the alternative.
This difficulty therefore does not represent a cost as compared to Option 0.
The burden on the prison service should also be the same as at present, subject to the remarks made
below under “benefits”.
Benefits
On-going benefits
There will be some increase in legal certainty compared with the present law. It reduces but (unlike
Option 1) does not altogether eliminate the difficulty of deciding which offence to charge and the
possibility that some prosecutions will fail because the wrong offence was charged. However, given that
the law will be much clearer than at present it is far more likely that the right charge will be brought, and
144
where it is not this will be the result of avoidable wrong charging decisions rather than of ambiguity in the
law.
As with Option 1, therefore, increased clarity in the law could in principle have a net effect of increased
guilty pleas, shorter trials and a lower proportion of convictions appealed against, but as we have no
evidence of how far the problems of definition in the existing law are in practice reflected in the
conviction rates we can put no figure on this saving.

The impact on cases involving the abduction of children and mentally impaired persons is the same as in
Option 1.
By eliminating the requirement of force or fraud from the kidnapping offence, and by clarifying that that
offence can include periods of stationary detention, Option 2 also resolves the anomaly concerning
mentally impaired persons. Where such persons are enticed by whatever means to a place of
confinement this will certainly be kidnapping.
3. Court savings as a result of reclassifying the offences as either way
The benefits of reclassifying the offences as either way will be the same as in option 1.
For the same reasons as in Option 1, we do not expect the redefinition of the offences to have any effect
on prison resources, unless one or both of the new offences has a fixed maximum sentence, in which
case there may be a small reduction if the maximum is set lower than the longest prison sentences
currently passed, although such a change may not be welcomed by the public. As no proposals have
been made about sentencing we cannot attach a figure to this reduction and we do not count it as a
monetised benefit. A possible saving may result from making the offences triable either way, but given
the possibility of committal to the Crown Court for sentence we do not expect this to be significant.
Net impact

Best estimate
Ongoing benefits (annual) £3,057,417
145
Option 3: Replace kidnapping and false imprisonment with one statutory offence of
deprivation of liberty and a more serious offence of deprivation of liberty coupled with any
of a list of aggravating factors
Costs
Transitional costs
The costs associated with judicial training are the same as in Option 1, £0.
As with Option 1 there is a possible spike in appeals. The costs per appeal and per day’s sitting would
be the same as in Option 1. However, given the somewhat greater complexity of this option, and the
introduction of a new list of aggravating factors, the number of appeals may be somewhat higher. We
have estimated a 50% increase in the applications for leave to appeal against conviction per year, which
will be paired with a 50% increase in appeals heard. This increase will begin in year 0 and end in year 2.
The costs are tabulated in table 10 below:
Table10: Costs from transitional increase in appeals



On-going costs
Under Option 3, as under Option 2, the two offences will between them cover the same range of cases
as the two existing offences: the only change will be in the boundary between them. There should
therefore be no increase in the number of prosecutions.
The main on-going cost is that the law will be perceived as complex. The more serious offence will
depend on proof of any of a number of factors: some extra time and expense will be involved in
producing such proof, and some prosecutions for the more serious offence may fail because the relevant
factor is not proved, though in such cases the defendant may be convicted of the basic offence. There
may be fewer pleas of guilty to the more serious offence; conversely, however, there will be an added
incentive to offer a plea of guilty to the more basic offence, whichever offence is charged.
As with Option 2, there may sometimes be difficulty in deciding which of the two offences to charge. The
effect of mistakes should not be significant: as stated above, a person charged with the aggravated
offence can be convicted of the basic offence if the aggravating factors are not made out. This will be so
whether or not the basic offence has been charged as an alternative.
The burden on the prison service should also be the same as at present, subject to the remarks made
below under “benefits”.
Benefits
146
On-going benefits
As with the other two options, increased clarity in the law could in principle have a net effect of increased
guilty pleas, shorter trials and a lower proportion of convictions appealed against, but as we have no
evidence of how far the problems of definition in the existing law are in practice reflected in the
conviction rates we can put no figure on this saving.
The more serious offence includes aggravating factors such as the making of ransom demands, and
therefore expresses the full range of the defendant’s conduct in a single charge. There may therefore be
less need to charge multiple offences, for example false imprisonment together with blackmail: this
should shorten trials, as there will be less need either to give complex directions on the ingredients of the
different offences or to consider complicated questions about how to sentence a defendant for several
offences at once.
While removing the need to consider technicalities about whether the victim was in motion or stationary
at a given stage, this option distinguishes between a more serious and a less serious offence, and the
more serious offence will include all or most cases which the public would regard as deserving the
stigma associated with kidnapping. Unlike Option 1 it will therefore not create an impression that the
criminal law is being diluted (or, as the case may be, that the kidnapping label is being over-extended).
Conversely, less serious cases involving the moving of the victim will not fall within the more serious
offence as at present: the stigma will therefore be reserved for cases that deserve it. This will save the
need for the prosecution to limit the over-wide scope of kidnapping by deciding as a matter of discretion
not to bring kidnapping charges for minor cases involving moving.

The position of children and mentally impaired persons will be resolved in the same way as in Option 1.
If such a person is enticed to a place of confinement, this will constitute the basic offence. If aggravating
factors such as ransom demands are present or intended, it will constitute the more serious offence.
3. Court savings as a result of reclassifying the less serious form of the offence as either way
The benefits of making the less serious of these two offences either way will be the same as under
options 1 and 2 above. The more serious offence will remain triable only on indictment. We do not
expect that this will have any effect on the proportion of cases tried in magistrates’ courts, as cases
where the aggravating factors are present will always be at the serious end of the spectrum and would
not be regarded as suitable for magistrates’ court trial under any of the options.
For the same reasons as in Option 1, we do not expect the redefinition of the offences to have any effect
on prison resources, unless the basic offence has a fixed maximum sentence, in which case there may
be a small reduction if the maximum is set lower than the longest prison sentences currently passed,
although such a change may not be welcomed by the public. As no proposals have been made about
sentencing we cannot attach a figure to this reduction and we do not count it as a monetised benefit. A
possible saving may result from making this offence triable either way, but given the possibility of
committal to the Crown Court for sentence we do not expect this to be significant.
147
Net impact

Best estimate
Ongoing benefits (annual) £469,800
Assumptions
We assume the following.
 Our account of the law is correct. One unresolved question is whether abduction followed by
detention qualifies as kidnapping. As one of the effects of our proposals is to remove this doubt, the
proposed reform works equally well on either assumption.
 Training costs under all three options are zero.
 There will be an initial spike in application for leave to appeal and appeals from years 0 to 2 for all
policy options. Subsequently appeals will return to the previous level. For Option 1 we have assumed
a 25% increase and for Options 2 and 3 a 50% increase.
 The figures supplied by the Ministry of Justice for committals, convictions and acquittals for 2000 and
for sentencing for the years 1998 to 2008 are accurate for those years, and typical of current trends.
 In the committal figures, “kidnapping etc” includes false imprisonment.
 The reason for the discrepancy between the number of cases committed to the Crown Court and the
number of cases listed for trial is that some cases were discontinued.
 The cost of a day’s sitting is £16,635 for the Court of Appeal Criminal Division, £4,454 for the Crown
Court and £4,010 for a magistrates’ court.
 The total number of cases prosecuted under our proposals will be the same as at present.
 If the new offence or offences were triable either way, the proportion of cases which would be
regarded as suitable for trial in a magistrates’ court would be the same as the proportion of
convictions leading to non-custodial sentences or sentences of 6 months or less.
 Cases in this category, when tried in the Crown Court, typically last one to two days.
 The same cases, if tried in a magistrates’ court, would take between half a day and just over a day.
 Cases in which factors such as the intention to cause bodily harm or to demand ransom are present
will usually or always attract custodial sentences of over 6 months and be regarded as suitable for
trial in the Crown Court.
Risks
Some risks are listed under the “costs” sections of the costs benefit analysis, for example the risk of
adverse public reaction to the removal of the “kidnapping” label.
In addition, there is the risk that one or more of the above assumptions is incorrect. In particular, there is
a medium level risk that, if the new offence is made triable either way, there will be more prosecutions in
minor cases that would at present be regarded as not justifying Crown Court trial. This is to some extent
offset by the possibility that the availability of magistrates’ court trial will encourage pleas of guilty. We
have therefore not taken account of this risk in our above analysis.
148
SPECIFIC IMPACT TESTS
Here we deal with the specific tests that we suggest are relevant to our provisional proposals.
Statutory Equality Duties
We have considered the three screening questions as the prerequisite for a full equality impact
assessment. Using a range of sources of evidence we have not identified any adverse impact on
equality of opportunity – but identify a number of positive policy implications as follows:
Gender
The majority of reported kidnapping cases appear to concern the taking of women or girls by men. To
that extent, any strengthening or clarifying of the offence applies unequally between the sexes, but only
because the problem itself does so. Any gender imbalance in the impact of our proposals is therefore
justified, and indeed desirable in strengthening the protection of women and girls (while giving equal
protection to males who are kidnapped).
Disability
The proposals should have a positive impact as concerns disability, as they confirm that the abduction of
a person without the mental capacity to give a meaningful consent is capable of amounting to
kidnapping, without the need to demonstrate force or fraud.
Race
Under Option 3, the intention to send a person outside the United Kingdom is one of the aggravating
factors. In some cases, for example those involving forced marriage, this may have a greater impact on
families with existing foreign connections, but only because the problem itself is more likely to arise in
these circumstances. Otherwise the proposals appear to be neutral as to religion and ethnic origin.
Competition
There are four filter questions provided by the Office of Fair Trading to ascertain whether a competition
impact assessment in necessary. If the answer to one or more of the questions is positive a competition
assessment should be carried out. As our proposals do not impact on business they do not directly or
indirectly limit the number or range of suppliers, or their ability to compete. Nor do they reduce suppliers’
incentives to compete vigorously. Therefore a competition assessment is not necessary and we do not
think that our provisional proposals would have any competition effects.
Small firms
We do not think that our provisional proposals would have any effect on small firms.
Greenhouse gas assessment
We do not think that our provisional proposals would have any effect on greenhouse gas emissions.
Wider environmental issues
We do not think that our provisional proposals would have any effect on wider environmental issues.
Health
We have considered the screening questions set by the Department of Health.10 There are three
screening questions, and according to the guidance, a health impact assessment is only necessary if the
answers to two or more of them are positive.
Our proposals will not have any impact on lifestyle related variables, or on the demand for relevant
medical or social services.
The only question with a potential affirmative answer, is “Will your policy have a significant impact on
human health by virtue of its effects on the following wider determinants of health?”, where one of the
“wider determinants” listed is “Crime”. We are not proposing any changes which would change
behaviour, but rather a new definition of the crime of kidnapping, so it is unlikely that our proposals will
change behaviour which may impact on health.
10
At http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Healthassessment/DH_4093617.
149
Thus there is therefore no need for a health impact assessment, and we conclude that our proposals will
not impact on health.
Human Rights
Our proposals clarify the definition of the offence of kidnapping, and therefore accord with the rights of
the accused under Article 7 of the European Convention on Human Rights. They also increase the
protection of young and vulnerable persons from kidnapping, in accordance with Article 5 of that
Convention: see above under Option 1: Benefits (page 17).
Justice
The impact on the justice system of our proposals has been considered throughout the evidence base of
the impact assessment. Therefore, we do not feel it is necessary to conduct a further, specific, impact
assessment on this issue.
Rural proofing
We do not think that our provisional proposals would have any effect on rural communities or the farming
industry.
Sustainable development
We do not think that our provisional proposals would have any effect on sustainable development.
150
ANNEXES
Annex 1 should be used to set out the Post Implementation Review Plan as detailed below. Further
annexes may be added to provide further information about non-monetary costs and benefits from
Specific Impact Tests, if relevant to an overall understanding of policy options.
ANNEX 1: POST IMPLEMENTATION REVIEW (PIR) PLAN
A PIR should be undertaken, usually three to five years after implementation of the policy, but
exceptionally a longer period may be more appropriate. A PIR should examine the extent to which
the implemented regulations have achieved their objectives, assess their costs and benefits and
identify whether they are having any unintended consequences. Please set out the PIR Plan as
detailed below. If there is no plan to do a PIR please provide reasons below.
Basis of the review:
N/A
Review objective:
N/A
Review approach and rationale:

N/A
Baseline:
N/A
Success criteria:
N/A
Monitoring information arrangements:

N/A
Reasons for not planning a PIR:

The Law Commission does not implement policy, therefore does not review policy implementation.
151

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The Law Commission

Consultation Paper No 200

SIMPLIFICATION OF CRIMINAL LAW:

By post to: Simon Tabbush at the address above

After the consultation

Criterion 1: When to consult

Criterion 2: Duration of consultation exercise

Criterion 3: Clarity and scope of impact

Criterion 4: Accessibility of consultation exercises

Criterion 5: The burden of consultation

Criterion 6: Responsiveness of consultation exercises

Criterion 7: Capacity to consult

The Law Commission’s Consultation Co-ordinator is Phil Hodgson.

Freedom of Information statement

SIMPLIFICATION OF CRIMINAL LAW:

PART 2: CURRENT LAW OF KIDNAPPING 7

PART 3: PROBLEMS IN THE LAW OF KIDNAPPING 56

PART 4: REFORMING THE OFFENCES 67

PART 5: QUESTIONS FOR CONSULTATION 93

APPENDIX A: PREVIOUS REFORM PROPOSALS 95

APPENDIX B: THE LAW IN OTHER COUNTRIES 98

APPENDIX C: OTHER ABDUCTION OFFENCES 118

APPENDIX D: IMPACT ASSESSMENT 125

(1) giving the law a clearer structure;

(2) using more modern terminology;

(4) making the law readily comprehensible to ordinary people by ensuring

The general aim of the simplification project

The Commission continues to support the objective of codifying the

The lack of a compendious offence to cover ransom kidnappings

(1) False imprisonment at common law.7

(2) Kidnapping at common law.8

(4) Hostage taking under the Taking of Hostages Act 1982.10

In the case of a kidnapping for ransom, there may also be:

(6) blackmail under section 21 of the Theft Act 1968;

Definition of the offence

(1) The offence is over-inclusive in some respects. It is defined in extremely

1.15 Briefly, we provisionally conclude as follows.

(a) A single offence of intentional or reckless deprivation of liberty

(b) Separate offences of unlawful detention and unlawful abduction.

(c) A basic offence of intentional or reckless abduction or detention

(2) An absence of consent to the conduct (abduction or detention) should be

Scale and context

The issues in brief

(a) taking/carrying away,

(b) force or fraud,

(c) lack of consent,

(d) lack of lawful excuse, and

(e) attack on liberty.

For each of these ingredients we consider two fundamental issues: its

(3) Then we consider the fault element of the offence.

(4) Finally we give an account of the offence of false imprisonment and

The most aggravated species of false imprisonment is the stealing

The forcible abduction or stealing away of any person is greatly

What about kidnapping?

2.11 For Glanville Williams, kidnapping is false imprisonment, aggravated by secreting

The principal modern cases

In our judgment, although apparently the authorities do not yet

INGREDIENTS OF THE OFFENCE