The Law On Kidnapping: A Response To The Law Commission's Consultation Paper

The Consultation Paper

1. In September 2011 the Law Commission published 'Simplification of Criminal Law: Kidnapping – A Consultation Paper1'. 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.

2. 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. 3.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

4. Kidnapping is a common law, indictable only offence; the leading authority (which provides the definition of 'kidnapping' in modern criminal law) is D2. The House of Lords in D. define the offence in terms of five necessary elements:

   a.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 kidnapping3. However, the Victim can travel a comparatively short distance (as little as 100 yards) for this criterion to be fulfilled4 as long as he is accompanied by his assailant5.

   b.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]"6. 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 resolved7.

   c.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 offence8; 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 capacity9. 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 child10.

   d.The Defendant's lack of lawful excuse – A lawful excuse would include exercise of reasonable parental...