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Criminal Law: Criminals could escape kidnapping conviction through loophole

The Law Commission have claimed that a loophole exists in the law which may result in people guilty of kidnap not being punished as harshly as they should.

The commission claims that the current legal definition of kidnap is "ambiguous" and that it is not enough for a victim to simply be taken away, other conditions need to be met for the crime to be defined in law as kidnap.

Professor David Ormerod of the Law Commission said: "The definition of kidnapping is both vague and arbitrary. Reform is needed to clarify the nature of kidnapping for the courts and allow practitioners to deal effectively and proportionately with the range of criminality."

The offence of kidnapping, a common law offence, was created in the seventeenth century by judges in the courts rather than by Act of Parliament.

Kidnapping occurs when an attack on or infringement of personal liberty is made, consisting of one person taking or carrying away another, by force or fraud, without the consent of the person being taken or carried away, and without lawful excuse.

The Law Commission argues that the definition does not allow for the enticing away of a child or mentally impaired adult, when there is no capacity for consent to be given or withheld and the taking is not done by force or fraud.

In these circumstances, the law might state that kidnapping did not occur, but abduction and false imprisonment did.

Kidnapping carries a maximum life sentence, while the maximum sentence for child abduction is seven years' imprisonment.

Prof. Ormerod said: "In practical terms, a young child or vulnerable adult who accompanies an offender without having been forced or defrauded into doing so won't necessarily have been kidnapped.

"Our aim is to clarify the definition and boundaries of kidnapping and to ensure that these forms of wrongdoing can be prosecuted with confidence."

The commission is carrying out a consultation on its ideas, which will continue until 27 December 2011, with the aim of publishing a final report in 2014.

Related links:
Read more on the story (Law Commission)
Read 'Help and support for victims of crime' (FindLaw)
Find local criminal solicitors throughout the UK (FindLaw)