The Law Commission has been busy with a consultation designed to look at simplifying the laws surrounding various crimes including kidnapping and how best to improve those laws with a view to bringing them up to date with current understanding and thinking.
The consultation proposed that kidnapping and false imprisonment should be replaced by one or more offences set out in statute.
The following questions were raised 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?
The report stemming from the consultation has been published today, and makes a series of recommendations, which have been set out on the Law Commission’s website. We reproduce the salient bits, below:
Reform of kidnapping and false imprisonment
We provisionally proposed that the offences should be made triable in a magistrates’ court as well as in the Crown Court. Consultees disagreed, and on further statistical analysis it appeared that no significant number of kidnapping and false imprisonment cases result in sentences of less than 6 months’ imprisonment. We therefore recommend that these offences remain triable in the Crown Court only, with the existing maximum penalty of life imprisonment.
In line with the model favoured by consultees, we recommend the creation of two distinct statutory offences to replace the existing common law.
We recommend 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). The elements of the new offence would closely follow the existing common law.
The new statutory kidnapping offence would be somewhat narrower and more focussed that the existing common law offence. Kidnapping would have fewer, more closely defined, elements and a clearer relationship with the offence of unlawful detention. The new kidnapping offence would be committed where a person, D:
- without lawful authority or reasonable excuse;
- intentionally uses force or the threat of force;
- in order to take another person V, or otherwise cause them to move in his company.
Reform of sections 1 and 2 of the Child Abduction Act 1984
We also recommend 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, in order to avoid undesirable inconsistency between the most serious instances of these offences and kidnapping offences of a comparable level of seriousness.
- We also recommend 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.
It will be very interesting to see how these recommendations work, if implemented. In cases where parents feel let down by the courts and flee the country with their children to avoid violent partners and escape domestic abuse, we hope that the new statutory offence’s “reasonable excuse” caveat is given due weight. Watch this space.