Hendy-Freegard v R

Kidnapping is an offence against personal liberty. It requires a taking or carrying away which entails a deprivation of liberty, as well as the other established ingredients of force or fraud, absence of consent and absence of lawful excuse.

A fraudulent inducement to travel unaccompanied does not, by itself, amount to either a taking or carrying away or a deprivation of liberty. A conviction based on a direction permitting that conclusion is unsafe where the verdict does not establish facts which would satisfy the offence under a correct direction.

The appellant was convicted at Blackfriars Crown Court of two counts of kidnapping and numerous offences of dishonesty committed against people whom he had deceived into believing that he was a secret-service or police agent.

The kidnapping counts alleged that he had induced John Atkinson and Sarah Smith, by false representations, to undertake or continue a journey. The trial judge directed that a person could be taken or carried away by fraud even if the defendant did not accompany that person.

On appeal, the court identified the central issue as whether fraudulent inducement of an unaccompanied person to move from one place to another could constitute kidnapping. It also considered the total sentence of nine years’ imprisonment for the dishonesty offences.

1. Appeal allowed in part. The convictions for kidnapping were quashed. The appeal against the sentences for the dishonesty offences was dismissed.
2. Kidnapping is an attack on personal liberty. The four ingredients identified in R v D [1984] 1 AC 778 must be understood in that light. A deprivation of liberty is an essential element of the offence.
3. R v Wellard (1978) 67 Cr App R 364 was consistent with that principle. A short movement may amount to carrying away, but the case involved deprivation of liberty. The court considered that the reasoning in R v Cort [2003] EWCA Crim 2149, which treated fraudulent inducement to travel in a car as kidnapping despite no intended detention, had departed unjustifiably from established principle. It was unnecessary, however, to determine whether that decision bound the court.
4. The trial direction was wrong. Fraudulently causing a person to move while unaccompanied by the defendant cannot, of itself, constitute taking or carrying away and cannot establish deprivation of liberty. The jury may therefore have convicted on facts which did not amount to kidnapping. The verdicts could not be preserved because it was impossible to infer that the jury had found the facts necessary for properly directed convictions.
5. The dishonesty offences involved prolonged and highly aggravating exploitation of the victims, including the extraction of about £500,000. The concurrent and consecutive sentences, totalling nine years, were not manifestly excessive.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1236, allowed the appeal against the two kidnapping convictions and quashed them; dismissed the appeal against sentence for the dishonesty offences.
• Crown Court at Blackfriars: Convicted the appellant of two counts of kidnapping and multiple dishonesty offences, and imposed life sentences for kidnapping together with a cumulative nine-year term for the dishonesty offences.