Main project: Simplification of the Criminal Law
Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
Bringing how the law deals with kidnapping into the 21st century. We await a response from government.
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.
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.
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.
We are waiting for a response from Government.
Area of law
Professor David Ormerod QC