Court of Appeal Criminal Division
Published May 30, 2007
Regina v Hendy-Freegard
Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Burton
and Mr Justice Stanley Burnton
Judgment May 23, 2007
The offence of kidnapping was not committed by a defendant who fraudulently
induced a person to make a journey which did not deprive him of his liberty.
The Court of Appeal, Criminal Division, so held in a reserved judgment giving
reasons for allowing, on April 25, 2007, Robert Hendy-Freegard’s appeal
against his conviction at Black-friars Crown Court (Judge Pillay and a jury)
on June 23, 2005 on two counts of kidnapping, for which he was sentenced to
life imprisonment, with a minimum term to be served of 10 years.
Mr Tim Owen, QC and Miss Samantha Riggs, assigned by the
Registrar of Criminal Appeals, for the appellant; Mr Godfrey Carey, QC
and Mr Michael Hick for the Crown.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the
appellant was a confidence trickster who combined seductive charm with an
astonishing capacity to deceive.
At the heart of what the judge rightly described as a web of deceit and lies
was his pretence that he was an undercover agent working variously for MI5
or Scotland Yard.
Once his victims were under his influence, he took control of their lives,
directing them what to do and where to live. His directions often exposed
them to substantial hardship. He treated them with callous cruelty and
fleeced them and their parents of sums of money totalling about £500,000.
Some aspects of the appellant’s conduct laid the ground for charges of
dishonesty, of which he was convicted.
The Crown searched, however, for an offence that would encapsulate all aspects
of the appellant’s conduct and, in particular, the deprivation, as a result
of his malign influence and deception, of his victims’ freedom to pursue
their own lives.
A single count of kidnapping was charged in relation to each victim on the
basis that it could be shown that each had been induced by deception to make
a journey that he or she would not have made had he or she known the truth
and that those facts constituted the ingredients of the offence of
kidnapping.
The Crown’s case was based essentially on R v D ([1984] AC 778), R v
Wellard ([1978] 1 WLR 921) and R v Cort ([2004] QB 388).
It was the Crown’s case that the element of “taking and carrying away” could
be achieved by causing the victim to move from one place to another, even
where the victim was unaccompanied. The Crown argued that kidnapping did not
necessarily involve false imprisonment It was the defence case that
kidnapping was a variety of false imprisonment. If taking and carrying away
was all that was relied on, that must involve deprivation of liberty. That
did not have to involve physical coercion. It was enough if the kidnapper
induced the victim to accompany him by persuading her that it was necessary
to do so, whether by threat or fraud. Causing a person by fraud to go from
one place to another unaccompanied could not amount to kidnapping.
The Crown had relied on Wellard in submitting that inducing a person by
fraud to move even a short distance from one place to another constituted
kidnapping.
The Crown had failed, however, to grapple with the fact that the Court of
Appeal had held that to make out the offence of kidnapping, the prosecution
had to establish that the defendant had deprived the victim of her liberty.
In R v D Lord Brandon remarked that the House of Lords had, for the first
time, to examine the nature, ingredients and scope of the offence as it was
under modern conditions and he then summarised the offence as follows (at
p800): “First, the nature of the offence is an attack on, and infringement
of, the personal liberty of an individual. Secondly, the offence contains
four ingredients as follows: (1) the taking or carrying away of one person
by another; (2) by force or by fraud; (3) without the consent of the person
so taken or carried away; and (4) without lawful excuse.”
The Crown submitted that, in that passage, Lord Brandon had overruled the
requirement, if such there was, that kidnapping involved deprivation of
liberty.
Their Lordships rejected that submission. It was inconceivable that Lord
Brandon would have made such a radical change in the law without making it
clear that he was doing so.
His opening statement that the nature of the offence was an attack on, and
infringement of the personal liberty of an individual, was a recognition of
that element of the offence.
What he did not make clear, for the question did not arise on the facts before
him, was how the requirement of that element was satisfied when the taking
and carrying away was achieved not by force but by fraud.
That was a question that might well have been discussed in Cort. Unhappily
it was not.
In Cort the appellant had, on numerous occasions, stopped his car at a bus
stop, falsely told those at the stop that the bus had broken down and
offered a lift to a single woman standing in the queue.
Two women accepted. The first changed her mind and asked to be let out of the
car and the appellant complied. The second was taken by him to her
destination.
The issue was whether the offence of kidnapping could be made out where the
alleged victims had consented to being taken in the appellant’s car to the
very place that they wished to go.
The judge ruled that the offence could be made out if the consent was induced
by fraud. The Court of Appeal dismissed the appeal that challenged that
ruling.
How could one arrive at a satisfactory definition of the offence of kidnapping
that accommodated both Wellard and Cort?
The difficulty arose principally because in neither case did the court discuss
the element of deprivation of liberty. In Wellard it had been conceded; in
Cort it was simply not discussed.
Their Lordships’ conclusion was that the decision in Cort represented
an unjustified departure from established principle.
It was, however, not necessary to consider whether their Lordships were bound
to follow Cort for, even if it was binding, it was not determinative of
the result on the facts of the present case.
The fact that it was difficult on the facts of Cort to identify the
deprivation of liberty that, on previous authorities, was an essential
ingredient of kidnapping did not justify the further extension of the law
for which the Crown had contended.
The Crown persuaded the judge that the offence of kidnapping would be
committed if a defendant, by a fraudulent misrepresentation, induced a
person to go from one place to another, even if that person was
unaccompanied.
In such circumstances there was nothing that was capable of constituting a
“taking and carrying away”. Even less was it possible to identify any
deprivation of liberty.
The Crown accepted that, if its submission was correct, the bigamist who
induced a woman to travel to the church for a wedding ceremony might be
guilty not merely of bigamy but also of kidnapping.
Such a submission transformed the offence of kidnapping in a manner that could
not be justified, even on the basis of the decision in Cort.
The judge was wrong to rule that causing a person by a fraudulent
misrepresentation, to move from one place to another, unaccompanied by the
defendant, of itself sufficed to constitute the element of taking and
carrying away in the offence of kidnapping.
Such a movement could not of itself constitute either taking and carrying away
or deprivation of liberty.
Having regard to the judge’s direction it was possible that the jury
convicted the appellant of having kidnapped his victims by fraudulently
inducing them to make a journey which did not deprive them of their liberty.
The convictions could not stand.
Solicitors: Crown Prosecution Service, Headquarters.
