Simplification of the Criminal Law: Kidnapping and Related Offences

Bringing how the law deals with kidnapping into the 21st century. We await a response from government.

Main project: Simplification of the Criminal Law

The problem (Back to top)

Kidnapping is an offence created by judges in the seventeenth century. There are generally 600 to 750 cases per year in which a person charged with kidnapping is brought before the courts. Many involve parents and children.

The current definition is that kidnapping is an attack on or 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.

This definition is problematic for at least the following reasons:

The elements of the offence overlap, and their relationship to one another is unclear. For instance, it is unnecessary to have both a force or fraud requirement and a requirement of absence of consent.
The meaning of ‘deprivation of liberty’ is unclear. For instance, does the loss of liberty have to occur while the victim is being taken or carried away, or is it sufficient if the victim is first taken to a place and then confined there?
The relationship between kidnapping and false imprisonment is poorly defined under current law.

This means that the offence is confusing, can be difficult to apply and may be leaving worrying gaps in the law.

The project (Back to top)

In its Tenth Programme the Law Commission embarked on a programme of simplification of the criminal law, criminal evidence and procedure. As part of this in September 2011 we published a consultation on the laws around kidnapping and false imprisonment.

On consultation we provisionally proposed that kidnapping and false imprisonment should be replaced by one or more offences set out in statute.

We raised the following questions for consultation:

Should there be one offence or two?
If there are to be two offences, should the distinction be between detaining and moving, or between simple and aggravated detention?
Should it be a defence that the abductor honestly believed that the victim consented, or should that belief be required to be reasonable?
Should the new offence or offences be made triable in a magistrates’ court as well as in the Crown Court?

Responses to the consultation favoured the retention of two distinct offences, but also the removal of the unnecessary overlap between the current law of kidnapping’s force or fraud and lack of consent elements.

Our recommendations (Back to top)

We published our final report in November 2014. We recommended:

the creation of two distinct statutory offences to replace the existing common law
a more focused and closely defined kidnapping offence than the existing common law offence
that false imprisonment be replaced with a new statutory offence of unlawful detention – a label which we believe better captures the nature of the offence

We also recommended changes to the offences under sections 1 and 2 of the Child Abduction Act 1984. We recommend:

the increase of the maximum sentences for these offences from 7 to 14 years imprisonment
that the offence under section 1 be extended to cover cases of wrongful retention of a child abroad, in breach of the permission given by another parent (or other connected person) or the court. This extension would close the gap in the law highlighted in the case of R (Nicolaou) v Redbridge Magistrates’ Court.