House of Lords
| Published date | 01 February 1985 |
| Date | 01 February 1985 |
| DOI | http://doi.org/10.1177/002201838504900105 |
| Subject Matter | Case Notes |
HOUSE
OF
LORDS
PARENTAL KIDNAPPING
R.
v.D.
The House of Lords in the instant appeal ([1984] 2 All E.R. 449)
has reversed the decision of the Court of Appeal (noted 48 J.C.L.
147) which had declared that the common law offence of kidnap-
ping did not exist in the caseof a child victim under the age of 14 and
that a parent could not be convicted of the offence of kidnapping
when the victim was his own unmarried child under the age of 18.
Subject to one reservation by Lord Bridge regarding the second
issue, the decision of the House, as expressed in the judgment of
Lord Brandon, was unanimous.
Lord Brandon analysed the ingredients of the common law
offence of kidnapping as established through leading treatises and
cases. He identified the four ingredients of the offence as: (1) the
taking and carrying away of one person by another; (2) by force or
fraud; (3) without the consent of the person so taken; (4) without
lawful excuse. His Lordship recognised that a taking out of the
jurisdiction and an element of secreting the victim had been
involved in the offence in former times but that these were no longer
ingredients of the crime. He was, however, unable to trace any
limitation on the offence which denied its operation against a child
under 14 or by a parent against his unmarried, minor child.
Furthermore, Lord Brandon could find nothing in The People v.
Edge [1943] I.R. 115 (which the Court of Appeal had partially
relied on) to support the proposition that no offence of kidnapping a
child under 14 existed at common law. Rather, he saw that case as
being concerned merely with whose consent must be absent before
such an offence is made
out-
the child's or the parent's. Nor, in his
Lordship's opinion, did the creation of the statutory offence of child
stealing in section 56 of the Offences against the Person Act 1861
(and its predecessors), in respect of children under 14, in any way
detract from the common law offence of
kidnapping-it
merely
provided for a more effective means of dealing with conduct which
30
To continue reading
Request your trial