In September 2011 the Law Commission published ‘Simplification of Criminal Law: Kidnapping – A Consultation Paper ’. The paper formed part of the on-going ‘simplification project’ which has already addressed the issue of ‘Public Nuisance and Outraging Public Decency’ in a Consultation Paper published in Spring 2010.
Simplification, as defined by the Law Commission involves:
Giving the law a clearer structure;
Using more modern terminology;
Making the law in a given area more consistent with other closely allied areas of law;
Making the law readily comprehensible to ordinary people by ensuring that it embodies sound and sensible concepts of fairness;
In the Law Commission’s view, the current law on kidnapping is in need of such simplification.
The Law on Kidnapping: Where We Stand Now
Kidnapping is a common law, indictable only offence; the leading authority (which provides the definition of ‘kidnapping’ in modern criminal law) is D . The House of Lords in D. define the offence in terms of five necessary elements:
The Defendant carrying/ taking away the Victim – This is the principal conduct element of the offence; some movement is a necessary element of the offence of kidnapping . However, the Victim can travel a comparatively short distance (as little as 100 yards) for this criterion to be fulfilled as long as he is accompanied by his assailant .
The Defendant’s use of force or fraud – In the opinion of the Law Commission the force element of the offence is satisfied “if there is coercion of the Victim by physical means or by the threat [to the Victim]” . By contrast, under the current law there is no precise definition of fraud in the context of kidnapping; the issue of when non-disclosure of pertinent information to the Victim crosses the fraudulent threshold has not been resolved .
The lack of the Victim’s consent – This element is additional to the use of fear or fraud. If the Defendant is to use consent as a defence, that consent must last throughout the conduct alleged to amount to the offence ; the Victim must consent to the taking or carrying away that is actually carried out by the Defendant. Consent may by vitiated by force, fraud or lack of capacity . Consent can never be given by one party on behalf of another, even if that party is a parent or guardian acting on behalf of a child .
The Defendant’s lack of lawful excuse – A lawful excuse would include exercise of reasonable parental discipline, action in accordance with an order under the Mental Capacity Act 2005, as amended by the Mental Health Act 2007 and arrest by a Police Officer.
The Defendant’s attack on the Victim’s liberty – This provides both the rationale behind the criminalisation of the conduct defined above, and also a necessary element of the offence. In order for this element to be present “the deprivation of liberty must occur simultaneously with the conduct nature of the offence”.
The secreting/detention of the Victim is not a necessary condition of the offence of kidnapping ; it is however likely to be of evidential significance in the case against the Defendant.
Problems with the Common Law
The Law Commission’s Consultation Paper identifies three key problems with the common law position. It aims to address these as part of the ‘simplification’ process:
The requirement for force or fraud: a lacuna in the law – The requirements of ‘use of force and fraud’ and ‘lack of consent’ are not, as they may initially seem, “two ways of saying the same thing” . In cases concerning children and the mentally incapacitated there is a real possibility of the Victim being carried/ taken away without force or fraud being used; consent in such cases is however vitiated by virtue of the Victim’s age/ mental capacity. On the current law such cases could not be prosecuted as kidnapping. This lacuna in the law needs to be filled.
The overlap between false imprisonment and kidnapping – False imprisonment is currently a separate offence to kidnapping. The essential difference between the two offences is that the former does not involve ‘the Defendant carrying/ taking the Victim away’. The harm involved in both offences is however the same; the Victim is deprived of his or her liberty. In cases where the Victim is not accompanied by the Defendant in transit but the other elements of the offence of kidnap pertain , and cases where the loss of liberty does not begin until the end of the process of taking and carrying away , the distinction between these two offences is illusory. This overlap creates uncertainty in the law .
Problems surrounding the decision to prosecute – Kidnapping is a serious offence; its indictable-only status signifies this. Prosecutorial discretion is used as a safeguard to prevent cases which technically constitute kidnapping, but which do not meet the ‘seriousness threshold’ associated with the offence , being indicted as such. This creates uncertainty, with offences technically constituting kidnapping being charged as false imprisonment or not at all.
The Law Commission suggests three models for reform of the law on kidnapping . All involve simplification and codification of the current law:
Model One – A single offence of ‘non-consensual deprivation of liberty’. This can be affected by detention or abduction, thus encompassing both kidnapping and false imprisonment.
Model Two – Two offences, one of ‘non-consensual detention’ and one of ‘abduction’, of equal gravity.
Model Three – A basic offence of ‘non-consensual detention or abduction’ and a more serious offence distinguished by a list of aggravating factors.
In all three Models it is proposed that the issue of consent should be dealt with as follows :
Lack of consent should be a condition of liability for any new offence created.
The use of force or fraud should be not be a separate requirement of the offence. It should however be taken into account when considering the issue of consent.
This serves to ‘fill-in’ the lacuna in the law.
Models One and Two both fail to adequately resolve the second and third problems the Law Commission has identified with the current law; they fail to distinguish between less and more serious versions of an offence that can have many permutations.
However, Model Three tackles the issue of seriousness within the definition of the offence; a list of aggravating factors allows for a schematic approach to offences involving deprivation of liberty based on their gravity. The following are examples of factors which could aggravate the offence:
The threat/ use of force/ actual bodily harm;
Intention to demand ransom or obtain any other form of advantage;
Acting in the company of others;
The exploitation of the Victim whilst detained;
The sending of the Victim out of the country;
Model Three allows the offence to be tried either way; cases in which no aggravating factors are present are suitable for summary trial and would be dealt with as such. Cases in which one or more aggravating factors are present should be committed to the Crown Court. This alleviates the uncertainty created by reliance on prosecutorial discretion.