Keeping someone against their will is a serious crime, in addition to being a civil wrong. It is a primal violation of personal liberty. However, English law governing this area has to be quite subtle, as there are many situations in which society quite reasonably wants to empower someone to keep another person against their will. Think of parents controlling young children, or institutions such as schools or prisons acting “in loco parentis” (in the place of parents).

The definition of the common law offence of kidnapping is to take someone, by force or fraud, without their consent and “without lawful excuse”. Even being taken 100 yards can be enough for the crime to be committed. It can also include parents who take a child away without the child’s consent.

But there are various rules that stop prosecutions being brought too easily. For example, the consent of the Director of Public Prosecutions is needed for the prosecution of kidnapping against a child under the age of 16 by “a person connected with the child”. And it was noted in a House of Lords case in 1984 that parents should only be prosecuted for the crime “in exceptional cases, where the conduct of the parent concerned is so bad that an ordinary right-thinking person would immediately and without hesitation regard it as criminal in nature”.

There is also a common law crime of “false imprisonment”. This is the intentional or reckless restraint of someone’s freedom of movement from a particular place – a crime unless the restrainer has a lawful excuse. In assessing the seriousness of a false imprisonment when it decides on an appropriate punishment, the court can look at the purpose for the imprisonment. In a case in 1998, the Court of Appeal supported a life sentence against a repeat sex offender who had locked a university student in a bathroom cubicle and, at knifepoint, made her perform acts of gross indecency. The imprisonment lasted only 20 minutes but its purpose was inextricably linked to non-consensual sex.

Parents are seldom found guilty of false imprisonment of their children because the sort of restraint imposed at home is usually well within the realms of what the law allows as “reasonable parental discipline”. But parental restraint can be unlawful where, for example, a parent stops a child from returning to residence of the person at which a court has ordered that the child shall live. A restraint on a child will also be unlawful if it is “outside the realm of reasonable parental discipline”. In a case in 1985, the Court of Appeal held that a conviction could stand against a father who had been trying to take his fifteen year old daughter back to her country of origin against her will. His car, in which she was being carried, was stopped by police officers as she was screaming for help out of the car window.

The crime of false imprisonment can be committed when the victim is restrained physically, like being locked in a car. It can also be committed simply by words, as where intimidation or commands are used, if the victim submits. A woman prevented from leaving a flat through the deliberate intimidating behaviour of a man who had assaulted her, and who had her apartment keys, would be falsely imprisoned.

In addition to kidnapping and false imprisonment, there are various relevant statutory offences. The Child Abduction Act 1984 is an example. Under this law, a person (for example, a parent or guardian) connected with a child under the age of 16 commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.

All this criminal law is geared to punish wrongdoers with a fine or imprisonment. But there is also civil law covering this area. False imprisonment is also a tort (a civil wrong), which means the victim can sue for compensation. Total restraint of the liberty, even for a short time, by the use or threat of force or by confinement is considered an imprisonment. The claimant needn’t prove that the imprisonment was unlawful or malicious: if the claimant establishes a prima facie (at first impression) case by proving that he was imprisoned by the defendant, the onus then falls on the defendant to prove a legal justification.

The rules here have been carefully developed to reflect general standards in contemporary Britain – making anything brutal unlawful while permitting the responsible exercise of power.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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