Court of Appeal
| DOI | 10.1350/jcla.2007.71.6.484 |
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
| Subject Matter | Court of Appeal |
Court of Appeal
Kidnap: Elements of Offence
R v Hendy-Freegard [2007] EWCA Crim 1236
The appellant had been convicted on two counts of kidnapping and of
several offences stemming from dishonesty towards the victims in the
kidnapping counts, and towards others. He had also been acquitted of
two further kidnapping charges and of a charge of threats to kill.
The facts that led to these charges are extraordinary and disturbing.
The appellant had for 11 years exercised a great deal of control over
several individuals by employing an elaborate web of deception centred
around his claims to be a MI5 agent working under cover and investigat-
ing activities of the IRA. The control was manifested in violence towards
some of the victims, sexual interaction with others and financial and
geographical control over all of them.
The appellant had met the victims while they were students and
insisted that they all leave the area to move around the country, only
staying in any one location for a short period because he told them that
it was not safe to remain for any length of time. The first successfully
prosecuted charge of kidnap was in respect of an allegation that the
appellant had induced victim A to go with him by fraud, and that to do
so was kidnapping.
The second successfully prosecuted charge of kidnap was based on a
different type of situation. Rather than the appellant deceiving the
victim S into accompanying him, S was initially persuaded to go along
on the journey by the victim A on the basis of a false story the appellant
instructed A to tell S. The precise point at which S was told that the ‘real’
reason was the appellant’s claimed MI5 membership could not be estab-
lished. Therefore, the charge was grounded on the allegation that pro-
vided the victim S, having eventually been told of the appellant’s false
claims, only continued her journey with the appellant because she
believed his story, then this was sufficient to establish her kidnap. It was
the Crown’s case that even though the appellant did not physically
accompany the victims on all occasions, if their reason for moving
around was his deception, then that fraud gave rise to kidnap.
The appellant appealed against conviction on the two counts of
kidnap, and against sentence on all the counts.
H
ELD
,
ALLOWING THE APPEAL AGAINST CONVICTION
, the judge had
been wrong to direct the jury that causing a person to move from place
to place unaccompanied by the defendant could satisfy the requirement
in the offence of kidnap of ‘taking and carrying away’. Furthermore,
although a conviction may be permitted to stand by the Court of Appeal
despite the judge having made a misdirection at trial, that may only
occur where the verdict of the jury demonstrates that they have been
satisfied of all the elements of the offence. It was impossible to know if
this was the case.
484
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