When does tricking a person into taking a journey from one place to another amount to kidnapping?

This issue came before the Court of Appeal in the case of R. v. Hendy-Freegard (CLW/07/20/5). The defendant was a confidence trickster, who pretended to be an undercover agent working variously for MI5 or Scotland Yard.

Once his victims were under his influence, he took control of their lives, directing them as to what to do and where to live. He was ­convicted of a number of offences of dishonesty; but the prosecution also wished to allege further criminality reflecting the deprivation by the defendant of his victims’ freedom to pursue their own lives.

The offence of kidnapping was chosen for this purpose, and it was alleged that such offences had been committed by the defendant by deceiving his victims into taking journeys which they would not have made had they known the truth.

Each of these journeys was made by the victim unaccompanied by the defendant.  

Allowing the defendant’s appeal against conviction, the court said that it was implicit in the elements of the offence of kidnapping that there had to be some deprivation of the liberty of the person taken or carried away.

There was no deprivation of liberty on the facts of this case and there was no basis for extending the offence so that it would be ­committed by a person who by fraudulent means induced another to go unaccompanied from one place to another.

CLW Comment

In R. v. D. [1984] A.C. 778, H.L., it was said that there were four elements to the offence of kidnapping: (1) taking or carrying away of one person by another;  (2) by force or by fraud;  (3) without the consent of the person so taken or carried away; and (4) without lawful excuse. In the instant case, the court explained that it was implicit in the first element that there had to be a deprivation of liberty. The court then referred to the earlier decision of R. v. Cort (CLW/03/29/4), where the defendant had stopped his car by a bus stop and told a woman waiting for a bus (falsely) that the bus had been cancelled. Having done so, he then offered the woman a lift, which she accepted, and he took her where she wished to go. A conviction for kidnapping in that case was upheld, but in this case the court doubted whether the earlier decision was correct because it suggested that the offence could be committed without any deprivation of liberty However, the court also referred to the earlier case of R. v. Wellard, 67 Cr.App.R. 364, C.A., where the defendant had induced a girl to accompany him to his car and to get into the back of it by falsely pretending to be a police officer searching for drugs and saying that he would escort her to her home. The court in this case said that those circumstances could be distinguished from Cort and were capable of amounting to kidnapping, because there would be a deprivation of liberty where one person acquiesced in accompanying another because she believed she was under compulsion.