R v Wellard
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 02 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Crim J0502-5 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2163/B2/77 |
| Date | 02 May 1978 |
[1978] EWCA Crim J0502-5
Lord Justice Lawton
Mr. Justice Thesiger
and
Mr. Justice Lawson
No. 2163/B2/77
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J. PROSSER, Q. C. and MR. POTTER. appeared for the Appellant.
MR. McCULLOUGH, Q. C. and MR. PERRETT appeared for the Crown.
On 31st March, 1977, in the Crown Court at Shrewsbury after a trial before Mr. Justice Goff this Appellant, Mike Colin Wellard, was convicted of kidnapping. He was sentenced to three years' imprisonment. He was acquitted on the direction of the learned Judge of abducting a girl. He now appeals against both conviction and sentence by leave of the single Judge.
On 24th May, 1976, at about 10 p.m. the Appellant approached a young woman called Deborah Garry, who was aged 17 ½ end her boyfriend, a young man called Michael Gordon on Stafford Common. He told them that he was a police officer looking for drugs. He told Mr. Gordon to go home and then said that he would escort Miss Garry to her home which was about five minutes walk away. She believed him when he said that he was a police officer and she said in her evidence, which must have been accepted by the jury, that she would not have gone with the Appellant had she not believed him to be a police officer. She accompanied him for about 100 yards to the road, where there was a car. He asked her to get into it. She got into the back. Before the Appellant could drive away, however, Mr. Gordon returned with two friends, a Mr. Brown and a Miss Day. Miss Day helped Miss Garry to get out of the car. The two men asked to see the Appellant's identification papers. He replied that he was Police Constable Jones and that he did not have any identification papers on him. He then drove away. Fortunately for Justice, one of the men took the number of his motor car and as a result it was found possible to trace him.
The Appellant did not go into the witness box. It follows that at no time was there any explanation from him as to why he behaved as he did. His complaint is that the learned Judge misdirected the Jury about the common law offence of kidnapping. In an admirably clear direction to the Jury the learned Judge told them what were the elements which had to be established by the prosecution before the jury could return a verdict of guilty of kidnapping.
The learned Judge put the matter in this way: "The first element that the prosecution have to prove is this, that is that the Defendant deprived Deborah Garry of her liberty." He then went on to tell the jury what depriving of liberty meant. He then said: "Now, the second element is that the Defendant unlawfully carried away Deborah Joyce Garry. Again, members of the jury, rather archaic language, but what it means is this, that for the crime of kidnapping to be established it is not enough that the victim should be deprived of his or her liberty. What the law requires is also that the Defendant should have, as it is said, secreted or hidden the victim or carried him or her away, and in this case what is being said by the prosecution is that Deborah Garry was carried away. Now, members of the Jury, for that to be established what has to be established is quite simply that Deborah Garry was removed from one place to another. It need not be very far, quite a short distance will suffice. It is not necessary that she should be physically removed, for example picked up and carried or anything of that kind. It would be quite enough if, because of his conduct, the Defendant had the practical effect upon Deborah Garry that she felt compelled to submit to his instructions, and for example to walk a short distance. If that was to be the case then she would have been carried away for that distance and the prosecution, members of the jury, say that that is what happened in this case."
Mr. Prosser has not suggested that the learned Judge's direction about the first element was incorrect. He has, however, submitted that his direction about the second element was incorrect. His submission came to this; that for the offence of kidnapping to be proved against the Appellant there had to be proof not only that he had carried away Miss Garry from a place hut that she was carried to the place where he had intended to carry her. It is that second part of the suggested direction to the jury which has been challenged by the Crown. Mr. McCullough, on behalf of the Crown, has submitted that there are two relevant elements. First, the deprivation of liberty – and that has not been in dispute – and secondly, the carrying away from a place. Mr. McCullough says that it is immaterial that the victim never reached the place where the Appellant intended to take her.
There is surprisingly little authority in the hooks about the crime of kidnapping. The authority which has been referred to in the fairly...
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