Practice and Procedure


PUBLISHED July 7, 2003

Where women were given or offered lifts by the defendant by way of fraud the correct offence was kidnapping and attempted kidnapping. Fraud was the essence of an offence of kidnap and if fraud was established consent could not be relied on at all, there was no room for the element of consent in kidnap cases as in the definition in R v D.Appeal, with leave of the single judge, against conviction for two counts of kidnapping and ten counts of attempted kidnapping at Leicester Crown Court before HH Judge Pollard on 3 May 2002. The defendant ('C') pleaded guilty following a ruling by the judge and was sentenced to a total community rehabilitation order of two years. On a number of dates in 2001 C stopped his car at bus stops alleging that the bus had broken down and then asking various women whether they wanted a lift. On most occasions his offer was rejected which, formed the counts of attempted kidnap. On two occasions two women accepted his offer, one changed her mind and got out of his car and the other was taken to her destination. C pleaded guilty on the basis that he only gave them lifts as he wanted to enjoy the company of the women and the handcuffs, string and stanley knife in the boot of his car were carried for unrelated reasons. C appealed conviction, relying on R v D (1984) 79 Cr App R 313, on the basis that his actions did not amount to kidnap as the women were taken by consent as they freely got into his car to go to the place where they wanted to go albeit they did so under mistake. He had not infringed any person's liberty.HELD: (1) Kidnap was a common law offence the elements of which were set out by Lord Brandon in R v D (supra). The nature of an attack had to lead to an infringement of a person's liberty and four elements were required: (a) there had to be a taking or carrying away; (b) by fraud; (c) without consent; and (d) without lawful excuse. (2) In the present case two women were taken or carried away by fraud because they would not have got into the car unless C had told them the bus had broken down. Authority in rape and assault cases showed that only two mistakes were recognised; either mistake as to identity or mistake as to the nature of the act, and that limited rule was relied on in relation to consent, see R v Clarence (1888) 22 QBD 23 and R v Linneker (1995) 2 Cr App R. (3) The contention that the women consented because they got what they wanted all along was wrong. That was not what the offence consisted of and was not the basic act which he was charged with. The women were taken by fraud and they did not consent to that, in fact they could not consent at all if fraud was established. That could be compared to rape cases, the court, in R v Linneker (supra), held it was absence of consent to intercourse rather than fraud that constituted rape. In kidnap fraud was the essence of the offence. (4) If Lord Brandon in R v D (supra) had had this type of kidnap offence in mind he would have made it clear that consent could not be relied on where the taking away was by fraud. (5) The implication of this judgment meant there was probably no room for the element of consent in kidnap cases, as set out in R v D (supra). That did not present a problem because that was not a statutory definition. Any contention that this case should not be met with a charge as serious as kidnap was wrong. Society should be able to control such situations and in some cases much stiffer penalties might be appropriate.Appeal dismissed.

[2003] EWCA Crim 2149