Editing Kidnapping (section)

===United Kingdom===
Kidnapping is an [[Common law offence|offence under the common law]] of [[England and Wales]]. Lord Brandon said in 1984 ''R v D'':<ref>The Law Reports. Lord Brandon: ''R v D'' [1984] AC 778, [1984] 3 WLR 186, [1984] 2 All ER 449, 79 Cr App R 313, [1984] Crim LR 558, [[House of Lords|HL]], reversing [1984] 2 WLR 112, [1984] 1 All ER 574, 78 Cr App R 219, [1984] Crim LR 103, [[Court of Appeal of England and Wales|CA]]</ref>

{{blockquote|First, the nature of the offence is an attack on, and infringement of, the personal liberty of an individual. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by [[Force (law)|force]] or [[fraud]]; (3) without the consent of the person so taken or carried away; and (4) without [[lawful excuse]].<ref name="RvD">Lord Brandon: ''R v D'' [1984] AC 778 at 800, HL. The following cases are relevant: ''R v Reid'' [1973] QB 299, [1972] 3 [[Weekly Law Reports|WLR]] 395, [1972] 2 [[All England Law Reports|All ER]] 1350, 56 [[Criminal Appeal Reports|Cr App R]] 703, [1972] Crim LR 553, CA; [as well as:] ''R v Wellard'' [1978] 1 WLR 921, [1978] 3 All ER 161, 67 Cr App R 364, CA; [and:] ''R v Cort'' [2003] EWCA Crim 2149, [2003] 3 WLR 1300, [2004] 1 Cr App R 18, CA; [and:] ''R v Hendy-Freegard''.</ref><ref>{{cite web|url=https://www.bailii.org/ew/cases/EWCA/Crim/2007/1236.html |title=Hendy-Freegard v R [2007&#93; EWCA Crim 1236 (23 May 2007) |publisher=Bailii.org |access-date=2012-05-14}}</ref><ref>{{cite news |author=Chris Johnston |url=https://business.timesonline.co.uk/tol/business/law/reports/article1856903.ece |title=The Times |publisher=Business. timesonline.co.uk |access-date=2012-05-14 |quote=EWCA Crim 1236, [2007] 3 WLR 488.}}{{dead link|date=September 2024|bot=medic}}{{cbignore|bot=medic}}</ref>}}

In all cases of kidnapping of children, where it is alleged that a child has been kidnapped, it is the absence of the consent of that child which is material. This is the case regardless of the age of the child. A very small child will not have the understanding or intelligence to consent. This means that absence of consent will be a necessary inference from the age of the child. It is a question of fact for the jury whether an older child has sufficient understanding and intelligence to consent.<ref name="R v D 1984 AC 778, HL">''R v D'' [1984] AC 778, HL</ref> Lord Brandon said: "I should not expect a jury to find at all frequently that a child under fourteen had sufficient understanding and intelligence to give its consent."<ref>''R v D'' [1984] AC 778 at 806, HL</ref> If the child (being capable of doing so) did consent to being taken or carried away, the fact that the person having custody or care and control of that child did not consent to that child being taken or carried away is immaterial. If, on the other hand, the child did not consent, the consent of the person having custody or care and control of the child may support a defence of lawful excuse.<ref name="R v D 1984 AC 778, HL"/> It is known as [[Gillick competence]].<ref>For the Charging child abduction and kidnapping in the same indictment see: ''R v C'' [1991] 2 FLR 252, [1991] Fam Law 522, CA.</ref>

Regarding restriction on prosecution, no prosecution may be instituted, except by or with the consent of the [[Director of Public Prosecutions]], for an offence of kidnapping if it was committed against a child under the age of sixteen and by a person connected with the child, within the meaning of section 1 of the [[Child Abduction Act 1984]].<ref>The [[Child Abduction Act 1984]], [https://www.legislation.gov.uk/ukpga/1984/37/section/5 section 5] {{webarchive |url=https://web.archive.org/web/20160104185020/https://www.legislation.gov.uk/ukpga/1984/37/section/5 |date=January 4, 2016 }}</ref> Kidnapping is an [[indictable-only offence]].<ref>{{cite web |url=https://www.cps.gov.uk/legal/s_to_u/sentencing_manual/kidnapping_false_imprisonment/ |title=Kidnapping - False Imprisonment:Offences against the Person: Sentencing Manual: Legal Guidance: The Crown Prosecution Service |publisher=Cps.gov.uk |date=2010-03-31 |access-date=2012-01-20 |archive-url=https://web.archive.org/web/20120112014642/https://www.cps.gov.uk/legal/s_to_u/sentencing_manual/kidnapping_false_imprisonment/ |archive-date=2012-01-12 |url-status=dead }}</ref> Kidnapping is punishable with imprisonment or fine at the discretion of the court. There is no limit on the fine or the term of imprisonment that may be imposed provided the sentence is not inordinate.<ref>For background, see: ''R v Morris'' [1951] 1 KB 394, 34 Cr App R 210, CCA. (Also:)'' R v Spence and Thomas'', 5 [[Criminal Appeal Reports (Sentencing)|Cr App R (S)]] 413, [1984] Crim LR 372, CA. Further information: Crown Prosecution Service: {{cite web |url=https://www.cps.gov.uk/legal/s_to_u/sentencing_manual/kidnapping_false_imprisonment/ |title=Kidnapping - False Imprisonment: Offences against the Person: Sentencing Manual: Legal Guidance: The Crown Prosecution Service |publisher=Cps.gov.uk |date=2011-06-24 |access-date=2012-05-14 |archive-url=https://web.archive.org/web/20120421181525/https://www.cps.gov.uk/legal/s_to_u/sentencing_manual/kidnapping_false_imprisonment/ |archive-date=2012-04-21 |url-status=dead }}</ref><ref>For the CPS guidance, see: {{cite web|url=https://www.cps.gov.uk/legal/p_to_r/prosecuting_cases_of_child_abuse/index.html#kidnapping |title=Legal Guidance:The Crown Prosection Service: Prosecuting Cases of Child Abuse |publisher=Cps.gov.uk |access-date=2012-05-14}}</ref><ref>For Offences against the person, see: {{cite web |url=https://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/index.html#Other_Relevant_Offences |title=Offences against the Person: Legal Guidance: The Crown Prosecution Service |publisher=Cps.gov.uk |access-date=2012-05-14 |archive-url=https://web.archive.org/web/20120410073418/https://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/index.html#Other_Relevant_Offences |archive-date=2012-04-10 |url-status=dead }}</ref>

A parent should only be prosecuted for kidnapping their own child "in exceptional cases, where the conduct of the parent concerned is so bad that an ordinary right-thinking person would immediately and without hesitation regard it as criminal in nature".<ref name="R v D 1984 AC 778, HL"/><ref>{{cite news |work=[[The Times]] |title=The Law Explored: abduction and false imprisonment |url=https://business.timesonline.co.uk/tol/business/law/columnists/article2316202.ece |author=Gary Slapper |date=23 August 2007 |location=London |access-date=2011-01-09 }}{{dead link|date=September 2024|bot=medic}}{{cbignore|bot=medic}}</ref>