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Offences Involving the Deprivation of Liberty 

Offences Involving the Deprivation of Liberty
Chapter:
Offences Involving the Deprivation of Liberty
Author(s):

Paul Connor

DOI:
10.1093/law/9780198831402.003.0014
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Subscriber: null; date: 09 July 2020

14.1 Introduction

This chapter concentrates on the closely related offences of false imprisonment and kidnapping. This close relationship may cause you difficulty in your examination if you do not understand the individual offences and their differences. This section is designed to provide you with that knowledge.

14.2 Aim

The aim of this section is for you to be able to explain and distinguish between the offences of kidnapping and false imprisonment.

14.3 Objectives

At the end of this section you should be able to:

  1. 1. Outline the offence of kidnapping.

  2. 2. Outline the offence of false imprisonment.

  3. 3. Distinguish between the offences of kidnapping and false imprisonment.

  4. 4. Apply your knowledge to multiple-choice questions.

14.4 False Imprisonment (Common Law)

14.4.1 Exercise—False Imprisonment?

Examine the following comments and decide whether they are ‘true’ or ‘false’.

  1. 1. False imprisonment can only be committed intentionally.

    True / False

  2. 2. An offence of false imprisonment is complete when the victim’s freedom of movement is restrained.

    True / False

  3. 3. The offence of false imprisonment is complete even though the restraint may be momentary only.

    True / False

  4. 4. A physical assault is a necessary ingredient of the offence of false imprisonment.

    True / False

  5. 5. An offence of false imprisonment may take place anywhere so long as the victim is prevented from moving from a particular place.

    True / False

14.5 Kidnapping (Common Law)

14.5.1 Exercise—Four Points to Prove

There are four points to prove when considering the offence of kidnapping. What are they? (Do not worry about the order of the points to prove.)

Kidnapping is an aggravated form of false imprisonment. It can be committed by any person against any person, i.e. there are no exceptions; a husband can kidnap his wife, a father can kidnap his child.

For the offence of kidnapping think of all the elements of false imprisonment, but also think of the offender causing some form of movement of the victim by taking or carrying them away (whether this movement is achieved by force or fraud is immaterial). Do not concern yourself about the distance that the victim has been moved (in R v Wellard (1978) 67 Cr App R 364, a distance of 100 yards was held to be ‘ample evidence’ of such movement), as any distance will suffice. Once movement occurs, the offence is committed.

It is important to remember that the offence can be committed by the use of fraud. This is well illustrated by the case of R v Metcalfe ((1983) 10 CCC (3d) 114). The victim entered the vehicle of the accused, a former acquaintance, in which a friend of the accused was also sitting. The victim was driven to a garage in the belief that he was either going to talk about ‘old times’ or alternatively was going to be given drugs. In fact the accused and his friend were planning to lure the victim to the garage where he was to be confined and held to ransom. In refusing the appeal, Nemets CJBC said: ‘In my opinion the offence of kidnapping was complete on the victim’s entry into the car. His agreement to go with the abductors was no consent in law. It was obtained by a fraudulent stratagem. Fraud was used as a substitute for force.’

Therefore, as soon as the victim is moved from one point to another (by force or by fraud) the offence is committed.

Remember that consent can be removed at any time. If a victim willingly accompanies the offender (no force or fraud is used by the offender at this stage) and a point is reached where the victim removes that consent, any further movement of the victim by the offender (by force or fraud) will constitute an offence.

A final point to note (which would make for a great examination question) relates to R v Hendy-Freegard [2007] EWCA Crim 1236. Effectively the principle is that kidnap can only occur when the kidnapper accompanies the victim—not a ‘remote’ movement as in this case.

See Investigators’ Manual, para. 2.10.2

14.6 Conclusion

Although the offences of kidnapping and false imprisonment are relatively uncommon and only briefly mentioned in the Investigators’ Manual, you would be ill advised to exclude them from your study and revision. This short section should have assisted you in understanding and differentiating between the two offences.

14.7 Recall Questions

Try and answer the following questions.

  • What are the points to prove for an offence of kidnapping?

  • What is the sentence for an offence of kidnapping?

  • What are the points to prove for an offence of false imprisonment?

  • What type of ‘recklessness’ is required for an offence of false imprisonment?

  • What are the differences between an offence of kidnapping and an offence of false imprisonment?

14.8 Multiple-Choice Questions

Answers to these questions can be found in the ‘Answers Section’ at the end of the book. All explanations also include a reference back to the Investigators’ Manual 2019.

1. NICKLIN is going through a difficult divorce after his wife left him and moved in with POYNER. NICKLIN intends to force his wife to come back to him and drives to POYNER’s address, where he speaks to his wife at the front door of the house. NICKLIN asks his wife to sit with him in his car on the false pretext of trying to sort out some of their differences. NICKLIN’s wife agrees and walks to the car with him. After several minutes the two begin to argue and NICKLIN’s wife attempts to get out of the car. NICKLIN grabs hold of her and locks the car doors. He then drives the car 200 metres along the road, before unlocking the doors and letting his wife out.

At what stage, if at all, does NICKLIN first commit the offence of kidnapping?

  1. A When his wife agrees to walk with him to his car.

  2. B When he grabs hold of his wife and locks the car doors.

  3. C When he drives her 200 metres along the road.

  4. D NICKLIN does not commit the offence, as a husband cannot kidnap his wife.

Answer _____________________________

2. UDALL is walking through a park looking for someone to sexually assault. He plans to take his victim back to his house to carry out the assault. He sees YOUNG and ACTON (boyfriend and girlfriend) taking some drugs near a tree and approaches them. UDALL falsely states that he is a plain-clothes police officer searching for drugs. He tells YOUNG that he has been cautioned and his punishment is to stay in the same spot for 30 minutes, but tells ACTON that she will have to come with him to the police station. YOUNG remains next to the tree while ACTON, who believes UDALL is a police officer, walks several metres with him. As ACTON and UDALL are walking together, ACTON asks to see UDALL’s warrant card. UDALL panics and runs away.

Which of the following statements is correct?

  1. A UDALL has kidnapped ACTON and falsely imprisoned YOUNG.

  2. B UDALL has kidnapped ACTON, but has not falsely imprisoned YOUNG because no force was used.

  3. C UDALL has attempted to kidnap ACTON and falsely imprisoned YOUNG.

  4. D UDALL has not kidnapped ACTON as she was not taken to UDALL’s house, but has falsely imprisoned YOUNG.

Answer _____________________________

3. TURNER comes home to her 10th floor flat and sees that the front door to the flat is slightly open. There have been a spate of burglaries in the block of flats and as TURNER looks through her front door she can see FELLOWES in her lounge dismantling her hi-fi system and placing it into a bag. TURNER genuinely believes that FELLOWES is a burglar and locks her front door to prevent FELLOWES from escaping. There is no other route out of the flat as it is on the 10th floor. TURNER calls the police but when they arrive five minutes later it transpires that TURNER’s partner had let FELLOWES in to install a new hi-fi system as a surprise for TURNER.

Which of the following comments is correct in respect of TURNER?

  1. A TURNER has committed the offence of false imprisonment in these circumstances and has no defence to the charge.

  2. B TURNER has not committed the offence as the period of imprisonment was too short.

  3. C TURNER has committed the offence of false imprisonment but would have a defence in that she genuinely believed FELLOWES to be a burglar.

  4. D TURNER has not committed the offence as she has not used any form of physical force against FELLOWES in order to imprison him.

Answer _____________________________