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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hendy-Freegard v R [2007] EWCA Crim 1236 (23 May 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1236.html Cite as: [2008] QB 57, [2007] EWCA Crim 1236, [2007] 3 WLR 488

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
BLACKFRIARS CROWN COURT
His Honour Judge Pillay
T20037313, T20037168

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2007

Lord Phillips CJ

Introduction.

1. On 23 June 2005 in the Crown Court at Blackfriars, after a trial that had lasted about 8 months, the appellant was convicted of two counts of kidnapping, the victim of the first offence being John Atkinson and of the second Sarah Smith. On 6 September 2005 he was sentenced by the trial judge, HH Judge Pillay, on the first count to life imprisonment with a recommended minimum term of 7 ½ years and on the second count to life imprisonment with a recommended minimum term of 10 years. He was also convicted of a large number of counts of dishonesty of which the victims were, John Atkinson, Sarah Smith, Caroline Cowper, Elizabeth Richardson and Kimberly Adams. These were ten counts of theft, 5 counts of obtaining a money transfer by deception and three counts of procuring the execution of a valuable security by deception. These counts spanned a period of 10 years from 1993 to 2003.
2. For these counts he was sentenced to imprisonment. The sentences of imprisonment imposed in relation to each individual victim were ordered to be served concurrently but the groups of concurrent sentences were ordered to be served consecutively, with the result that the cumulative total was 9 years imprisonment. This total was ordered to be served concurrently with the sentences in respect of the first two counts. Credit was given for two years and 107 days spent remanded in custody. This lengthy period is explained, in part, by the fact that an earlier trial had commenced but the jury had had to be discharged and a retrial ordered.
3. The appellant was acquitted of two other counts of kidnapping, in respect of which the alleged victims were Maria Hendy and Elizabeth Richardson. He was acquitted of a count of threatening to kill Kimberly Adams
4. The appellant's applications to appeal against conviction on the first two counts and against the sentences in respect of all the counts were referred to this court by the Registrar. We gave permission to appeal at the beginning of the hearing.
5. There were a substantial number of grounds of appeal against conviction, but we identified one fundamental issue of law on which we invited initial argument. At the end of that argument we ruled on it in favour of the appellant and held that the conviction would be quashed and that accordingly there would be no need to consider the other grounds of appeal against conviction nor the appeal against sentence in relation to the first two counts. We then heard the appeal against the sentences imposed in relation to the remaining counts and dismissed that appeal. We now give the reasons for our decisions.
6. The facts of this case are, happily, extraordinary. The appellant is a confidence trickster who combines 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 approximately £500,000.
7. Some aspects of the appellant's conduct laid the ground for the 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. The Crown decided that the offence of kidnapping would fit this bill. A single count of kidnapping was charged in relation to each of the four victims 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 these facts constituted the ingredients of the offence of kidnapping, as identified by Lord Brandon in R v D [1984] 1 AC 778. The judge accepted the latter proposition and directed the jury accordingly. He subsequently treated the two counts of kidnapping in respect of which the jury returned guilty verdicts as enabling him to impose sentences that reflected the overall seriousness of the appellant's behaviour.

The facts

8. The two counts of kidnapping on which the appellant was convicted alleged initially that each victim was kidnapped between the 14^th and the 31^st March 1993. In the case of Sarah Smith the latter date was altered by amendment to the 30^th April 1993. Thus, in each case, the kidnapping was alleged to have occurred close to the beginning of the story. That story began at the end of 1992. The appellant obtained employment as the manager of the Swan public house in Newport, Shropshire. There he met three students who were studying at a nearby agricultural college. These were John Atkinson, his girl friend Sarah Smith and another girl called Maria Hendy. He persuaded John Atkinson to work part time in the pub as a barman.
9. Shortly after the Christmas vacation of 1992 the appellant's relationship with Maria Hendy became sexual. At about the same time the appellant falsely told John Atkinson that he was a secret agent investigating an IRA cell at the agricultural college. He said that as a result of his having uncovered the cell his life was in danger as were the lives of those associating with him, namely John Atkinson, Maria Hendy and Sarah Smith. He said that, for this reason, it was necessary for them all to leave Newport. He told John Atkinson not to disclose these matters, but to tell the girls that he, John Atkinson, was terminally ill, and persuade them to go together on a farewell tour of the country.
10. John Atkinson carried out this plan. The girls agreed to leave with the two men. At the time that they were due to leave, however, the appellant fell ill and was taken to hospital and Maria Hendy accompanied him. John Atkinson and Sarah Smith set off together and went, initially to a friend's farm. The appellant and Maria Hendy subsequently joined them there and they set off for a tour of the country. In the course of the journey visits were made to the parents of the students. At some stage each of the girls became aware of the appellant's alleged membership of the secret service.
11. The group settled in a flat in Sheffield. Maria Hendy became pregnant; the other three went out to work. The appellant took from them all the money that they earned and subjected them to humiliating house rules. He made them draw out and hand over to him money from their bank accounts.
12. Maria Hendy's relationship with the appellant lasted until 2002. She had two children by him and continued to live in Sheffield, while the appellant travelled around the country. John Atkinson remained under the appellant's influence and acted in accordance with his directions until 1997, when he managed to extricate himself from the relationship and restructure his life. By then he had been induced to hand to the appellant substantial sums of money, much of which was obtained from his family.
13. Sarah Smith remained under the appellant's influence until after he had been arrested by the police in 2003. She moved around the country, staying in a variety of accommodation under his directions, often in some discomfort. The appellant would relieve her of money that she earned or obtained from other sources. On occasions he had sexual intercourse with her.
14. Elizabeth Richardson, Caroline Cowper and Kimberly Adams came under the appellant's influence at different times during this period, to the detriment of each of them.
15. The appellant met Elizabeth Richardson in Sheffield and started an affair with her. He told her that he worked for MI5, and was on the run. He made her give him substantial sums of money. The relationship ended, but in 2000 he tracked her down and resumed it. He persuaded her to go away with him to start a new life in the South East. It was the Crown's case that he had induced her to go with him by fraud and that this was kidnapping, The jury acquitted him of that charge.
16. Whilst working in London the appellant met Caroline Cowper and began a relationship with her. They agreed to get married and the wedding day was fixed for 2 February 2002 but the relationship broke down. The appellant obtained substantial sums from Miss Cowper's bank account by deception.
17. The appellant began a relationship with Kimberly Adams in March 2002. He told her that he was a spy, working under cover as a car salesman in London. They became engaged in August 2002 and planned to marry in November 2002. The wedding was then postponed. The appellant induced Kimberly Adams to part with large sums of money, some of which was obtained from her father.

The Crown's case on the elements of kidnapping

18. We shall restrict our comments to the Crown's case in relation to the counts of kidnapping John Atkinson and Sarah Smith, although its case in relation to the other two counts of kidnapping was of the same nature. We shall first outline the Crown's case on the facts and then explain the contentions of law that the Crown based on these facts.
19. It was the Crown's case that the kidnapping of John Atkinson and Sarah Smith occurred as incidents of the journey that they made around the country after leaving Newport at the end of March 1993. So far as John Atkinson was concerned, it was the Crown's case that he was induced to set off on this journey as a result of the false story that the appellant had given that it was necessary for them all to leave to escape from the IRA cell. This deception was enough, on the Crown's case, to turn the commencement of the journey and, indeed its subsequent stages, into the crime of kidnapping. The fact that the appellant was in hospital, rather than with John Atkinson and Sarah Smith when the journey began did not matter.
20. So far as Sarah Smith was concerned, the evidence was that she began the journey under the impression that they were making it for John Atkinson's sake, because he was terminally ill. There was a conflict as to when, and how, Sarah Smith was told that the true reason for the journey was that the appellant was a secret agent and that the party was at risk from the IRA cell. It was the Crown's case that it did not matter when this occurred, provided that the jury were sure that at a point in time Sarah Smith continued on the journey because, and only because, she believed in the truth of this alternative false story. The amendment to the indictment, extending the period during which Sarah Smith's kidnapping was alleged to have occurred, was made in order to ensure that the moment at which she was informed of what was alleged to be the true reason for the party's voyaging fell within that period.
21. The Crown's case on the elements of the crime of kidnapping was and is based essentially on one decision of the House of Lords and two of the Court of Appeal. It is as follows:
22. R v D [1984] AC 778 established that there were four ingredients of the crime of kidnapping:

i) the taking or carrying away of one person by another;

ii) by force or fraud;

iii) without the consent of the person so taken or carried away; and

iv) without lawful excuse.

23. R v Wellard (1978) 67 Cr App R 364 established that the 'taking and carrying away' did not have to involve physical removal of the victim. It was enough if the defendant so acted as to cause the victim to feel that she was compelled to submit to his instructions and move a comparatively short distance from one place to another.
24. R v Cort [2003] EWCA Crim 2149; [2004] 1 Cr App R 18 established that the way in which the defendant caused the victim to move from one place to another did not have to involve coercion. It was enough if the defendant induced the victim to make that journey by fraud.
25. It was and is the Crown's case that the element of 'taking and carrying away' can be achieved by causing the victim to move from one place to another, even where the victim is unaccompanied. Thus, in his skeleton argument prepared for this appeal Mr Carey QC for the Crown submitted, in the case of Sarah Smith, that any movement caused by the appellant's misrepresentation that he was an undercover policeman amounted to kidnapping by fraud. "There was clear evidence that as a result of the fraud Sarah Smith went where she would not otherwise have gone and continued to do so for 10 years. Manifestly she was deprived of her liberty for that long period of time". There was no need for the Crown to allege or prove precisely when or where Sarah Smith was first deceived by the appellant and thus first kidnapped. There was a series of kidnappings every time she was induced to move by fraud. The same was true in the case of John Atkinson.
26. These submissions do not focus on what was a critical issue in the argument before us, namely whether there can ever be a case of kidnapping that does not involve the offence of false imprisonment. Mr Carey argued that kidnapping does not necessarily involve false imprisonment; furthermore at one point he appeared to concede that the Crown had not been in a position on the facts of this case to establish the offence of false imprisonment.

The defence case

27. It was and is the defence case that Mr Carey has misinterpreted the authorities upon which he relies. Kidnapping is a variety of false imprisonment. If taking and carrying away is all that is relied on, this must involve deprivation of liberty. This does not have to involve physical coercion. It is enough if the kidnapper induces the victim to accompany him by persuading her that it is necessary to do so, whether by threat or fraud. Causing a person by fraud to go from one place to another unaccompanied cannot amount to kidnapping.

The judge's rulings and direction to the jury

28. Mr Draycott QC, who was then acting for the defence, advanced the submission that, on the evidence adduced by the Crown, there was no case to answer in respect of the kidnapping counts. In the judgment that he delivered on 12 April 2005, rejecting that submission, the judge's summary of the arguments advanced by Mr Draycott included the contention that it was imperative the defendant took or carried away the victim, that is that he accompanied the victim. He submitted that the word 'takes' connoted a physical involvement of the defendant with the victim. In rejecting this submission the judge said this:

"Neither counsel have placed before me any dictionary definition of the word 'takes'. It is not without significance in my judgment that the current edition of Websters New English Dictionary and Thesaurus defines the word as including: 'to grasp, or to seize, to gain, to win, to choose or select, to lead, to carry, to swindle, to deceive, to procure, or to escort.' The word 'takes' is in my judgment, wide enough to encompass the allegations made by the Crown within the said Counts."

29. Mr Draycott was not satisfied that the judge had adequately addressed his submissions, so on 13 May 2005 he sought further rulings from the judge, posing specific questions. These included the question "does the defendant have to accompany the victim at the time of the alleged taking and carrying away?" to which the judge answered "no".
30. The material parts of the judge's summing up to the jury appear at pages 21 to 25 of the transcript:

"Kidnap. Kidnap is a serious offence representing the deprivation of a victim's liberty. The House of Lords, in a celebrated case, laid down the ingredients as follows.

'1. There must be a taking or carrying away of one person by another.

2. The taking or carrying away must be by force or fraud.

3. The taking or carrying away must be without the consent of the person so taken or carried away.

4. The taking or carrying away must be without lawful excuse. So the ingredients of the offence which the prosecution must prove, in any particular case of kidnap are: One, there must be a taking or a carrying away of one person by the other; two, the taking or carrying away must be by force or fraud; three, the taking or carrying away must be without the consent of the person so taken or carried away, and; four, the taking or carrying away must be without lawful excuse."

…

"Now, it does not end there. The Court of Appeal has provided a further refinement and held that where the allegation alleges as here, a kidnap by fraud, once the fraud alleged within the count has been proved, that fraud then cancels out the consent of the person so taken or carried away. In other words, fraud negates consent. It disposes of the requirement for the ingredient because, members of the jury, consent obtained as a result of fraud cannot be true consent.

Now, in relation to all the kidnaps alleged in this case, the Crown's allegation is that it was by fraud. Namely, that the defendant pretended that he was or passed himself off as an MI5 or an MI6 agent or as a Metropolitan Police officer or, alternatively, that he worked for the Secret Services of the United Kingdom with a brief to infiltrate and report on the IRA."

…

"The words 'take' and 'carried away' must be given their ordinary meaning within the English Language. 'Take' within the context of this case, means to physically move or to cause the complainant to physically move from one place to another. 'Carrying away', in the context of this case, also means moving the victim from one place to another. It need not be very far. Quite a short distance will suffice. It is not necessary that the victim should be physically moved, for example by being picked up and carried away. It will be quite enough if, because of the defendant's conduct, the practical effect on the victim was that he or she felt compelled to move because of the defendant's instructions. That would be quite sufficient. If that happened, then that victim would have been carried away and that is what the Crown alleges happened to the complainants in this case. It follows from what I have said, members of the jury, that there is no legal requirement that the defendant must accompany the victim when they move from one place to another. For example, here you will recall that the move by John Atkinson and Sarah Smith from Newport was separate from the defendant and Maria Hendy."

31. In his submissions before us Mr Carey submitted that the judge's rulings and directions on the law were correct. Alternatively, in a very late submission, he argued that if the jury should have been given a direction which specified that false imprisonment was an additional ingredient to those identified in R v D [1984] 1 AC 778, the jury would unquestionably have found this requirement satisfied.

The authorities

32. Kidnapping is a common law offence that was prevalent in the 17^th Century. It was defined by Blackstone 4 Comm 219 as "the forcible abduction or stealing away of a man woman or child from their own country and sending them into another". By the beginning of the 20^th Century transportation to a foreign country was no longer an element of the offence. The 38th Edition of Archbold (1973) defined it as "the stealing and carrying away, or secreting, of any person of any age of either sex against the will of such person…" and this definition can be traced back to the beginning of that century. There were few instances of kidnapping being charged, however, perhaps because of the overlap that the ingredients of the offence had with the offence of false imprisonment and with statutory offences introduced for the protection of children.
33. In 1983, in the second edition of his Textbook of Criminal Law, Glanville Williams commented at p. 219:

"What about kidnapping?

There is a common law offence going by this name, which is committed by carrying a person away without his consent. It is supposed to be a particularly serious form of false imprisonment, but over the years the courts have, in familiar fashion, attenuated the circumstances of aggravation, so that now the only distinguishing feature is that the imprisonment, to amount to an aggravation, must involve either the secreting of the victim or carrying him away from the place where he wishes to be. It may be either by force or by the threat of force. (As was said before, the courts may perhaps extend it to a taking by deception.) "

34. The statement in parenthesis referred to a prescient comment on the previous page:

"There is no clear authority for saying that it is a false imprisonment (or kidnapping – see below) to cause a person by deception to remain in a place or to go to a place. The person who is deceived is caused to behave in a certain way but is not deprived of his liberty. However, it is quite possible that the courts will make this extension if the point arises. There are precedents for saying that an offence of doing something 'against the will' of someone covers the getting of consent by fraud."

35. In R v Reid [1972] 56 Cr App R 703 one issue raised was whether it was a necessary ingredient of kidnapping that the victim should be held and secreted. Giving the judgment of this court, Cairns LJ observed:

"Russell cites 1 East Pleas of the Crown 429, where the statement is: 'The most aggravated species of false imprisonment is the stealing and carrying away or secreting of some person, sometimes called kidnapping, which is an offence at common law.'

We can find no reason in authority or in principle why the crime should not be complete when the person is seized and carried away, or why kidnapping should be regarded, as was urged by counsel, as a continuing offence involving the concealment of the person seized."

36. This decision was followed in R v Wellard. In that case the defendant induced a girl to accompany him about 100 yards to his car and to get into the back of it. He did so by falsely pretending to be a police officer searching for drugs and saying that he would escort her to her home. Before he could drive away, her boy friend arrived with two other men and extricated her from this situation. The trial judge, Robert Goff J, directed the jury that the first element that the prosecution had to prove was that the defendant deprived the victim of her liberty. This, however, was not enough. He had to secrete his victim or carry her away. As to the latter requirement it was not necessary that the victim should be physically carried. "It would be quite enough if, because of his conduct, the defendant had the practical effect upon [her] that she felt compelled to submit to his instructions and, for example, to walk a short distance."
37. On appeal the point was taken that the offence of kidnapping was not complete unless and until the defendant succeeded in taking the victim to the destination to which he wished to take her. Lord Justice Lawton remarked that the deprivation of liberty "has not been in dispute". What was in issue was the carrying away. He concluded at p. 367:

"All that has to be proved is the false imprisonment, the deprivation of liberty coupled with a carrying away from the place where the victim wants to be. It may be that in some circumstances the movement would not be sufficient in the estimation of the jury to amount to a carrying away. Every case has to be considered on its own facts. In this case the victim was carried away by the appellant for no less than 100 yards and put into a motor car. In our judgment, there was ample evidence that the victim was carried away from the place where she wanted to be, namely by the side of her boyfriend on Stafford Common. There is nothing in the point of law which is raised in this appeal."

38. Mr Carey relied on this passage in submitting that inducing a person by fraud to move even a short distance from one place to another constituted kidnapping. He failed, however, to grapple with the fact that both the judge and 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.
39. We turn to the decision that has been treated as identifying the elements of the common law offence of kidnapping as it has developed in modern times. In R v D [1984] 1 AC 778 the appellant was the father of a daughter who, in proceedings in the Family Division, had been made a ward of court. Care and control was awarded to the mother. The father was convicted of two counts of kidnapping. The first related to events that occurred when his daughter was two years old. The father, with two violent men whom he had recruited for the purposes, broke into the flat where his daughter lived with her mother and literally carried her away by force. The child showed no signs of distress. She was subsequently restored to her mother.
40. The events giving rise to the second count occurred when the daughter was aged five, by which time the parents were divorced. The father on that occasion wrenched the child by force from the arms of her mother, carried her to a car and made off with her. In these circumstances it was not disputed by the defence that the daughter had been taken and carried away. The issue related to consent. The judge had directed the jury that the taking had to be without the consent of the child, if they found that she was capable of giving consent, and otherwise without the consent of her guardian. The Court of Appeal had quashed the conviction, holding that there was no offence of kidnapping a child under 14 and further that the offence of kidnapping could not be committed by a father against his own unmarried minor child. The House of Lords allowed the appeal by the Crown and restored the conviction.
41. Lord Brandon gave the only substantive speech. Most of this dealt with the issues peculiar to the case and had no bearing on those that we have to resolve. He did, however, begin his speech by remarking that the House had, for the first time, to examine the nature, ingredients and scope of the offence as it was under modern conditions. After a reference to the relevant authorities Lord Brandon summarised the offence as follows:

"From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, the nature of the offence is an attack on the 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. Thirdly, until the comparatively recent abolition by statue of the division of criminal offences into the two categories of felonies and misdemeanours, the offence of kidnapping was categorised by the common law as a misdemeanour only. Fourthly, despite that, kidnapping was always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence. Fifthly, in earlier days, the offence contained a further ingredient, namely, that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete, and forms no necessary part of the offence to-day. Sixthly, the offence was in former days described not merely as taking or carrying away a person but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away."

42. Mr Carey submitted that, in this passage, Lord Brandon overruled the requirement, if such there was under the 'modern authorities' to which he had referred, that kidnapping involved deprivation of liberty. We reject this submission. It is inconceivable that Lord Brandon would have made such a radical change in the law without making it clear that he was doing so. We consider that 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 this 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 this element was satisfied when the taking and carrying away was achieved not by force but by fraud. This was a question that might well have been discussed in the next case to which we turn. Unhappily it was not.
43. The facts of R v Cort [2004] 1 Cr App R 18 were quite extraordinary. The appellant pleaded guilty to two counts of kidnapping and 10 counts of attempted kidnapping after a ruling of law by the judge. On appeal he contended that the ruling was wrong. The facts were that 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. The women usually refused, but two accepted, and the counts of kidnapping related to these. 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 in circumstances 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.
44. The Court of Appeal dismissed the appeal that challenged this ruling. Buxton LJ gave the judgment of the court. The only previous decision in relation to kidnapping that he cited was R v D, albeit that Wellard had been referred to in argument. Buxton LJ focussed on the four elements of the offence identified by Lord Brandon and sought to apply them to the facts of the case before the court. So far as the first ingredient, 'taking and carrying away', was concerned he observed at p. 201: "There is no doubt and it was not disputed, that in the case of the two ladies that went with Mr Cort in his motor car, they were indeed carried away from where they originally were, and wanted to be, that is to say the bus stop". So far as the second ingredient 'by force or fraud' was concerned, he observed "they were carried away by fraud, in the sense that they would not have got into Mr Cort's car unless he had told them the lie that he did about the bus having broken down". Detailed discussion was reserved for the third ingredient, "without the consent of the person so taken or carried away".
45. Counsel for the appellant argued that the type of fraud referred to in the second ingredient was the type of fraud that, in cases of rape and fraud can "vitiate an otherwise apparent consent", namely mistake as to identity or as to the nature of the act in which the victim is engaging, so that lack of consent still had to be established. As to this, Lord Justice Buxton observed at p. 202:

"As we have already pointed out, the application of that line of authority to the case of kidnapping produces a surprising outcome. The definition of the offence inculpates the defendant in cases of fraud, but then exculpates him unless the fraud is as to a very unusual and limited matter not in fact likely to arise in most kidnapping cases"

The court rejected the submission that the fraud referred to by Lord Brandon fell to be limited in this way. The conclusion reached by the court was that there was probably no room for the requirement of lack of consent in the case of kidnapping where the taking and carrying away was induced by fraud.

Discussion

46. How can one arrive at a satisfactory definition of the offence of kidnapping that accommodates both Wellard and Cort? The difficulty arises principally because neither in Wellard nor in Cort did the court discuss the element of deprivation of liberty. In Wellard this had been conceded in the Court of Appeal; in Cort the element was simply not discussed. We shall start with Wellard.
47. On what basis was it conceded in Wellard that deprivation of liberty had occurred? There are two possibilities. The first is that the deprivation of liberty occurred when the victim was induced to get into the appellant's car. On this analysis the offence of kidnapping consisted of a 'taking and carrying' away by fraud that did not, itself, amount to a deprivation of liberty, but which was followed by the requisite deprivation of liberty.
48. The alternative is that it was accepted that, having regard to Robert Goff J's direction to the jury, the 'taking and carrying away' itself amounted to a deprivation of liberty. The judge had directed the jury that this element would be established if "because of his conduct, the defendant had the practical effect upon [the victim] that she felt compelled to submit to his instructions and to walk a short distance". In 1984 the Criminal Law Revision Committee published a Report on Offences against the Person that dealt with false imprisonment and kidnapping. Under the heading Unlawful Detention the Report commented:

"231. the essence of unlawful detention should be the intentional or reckless detention, without lawful excuse, of a person without his consent and that it should cover (as the present law does) detaining a person, causing him to remain where he is, or causing him to accompany another person. Acquiescence obtained by duress should, of course, be no defence. We also propose that the offence should be committed where the victim acquiesces because he believes that he is under legal compulsion. An example would be where a person causes another to accompany him by falsely pretending to be a police officer".

Wellard is cited in a footnote as an example of such a situation. In a further footnote the report comments, when dealing with kidnapping, that "carrying off" is a form of detention. This suggests that the authors of the Report accepted the second explanation of the result in Wellard.

49. One thing is quite plain and that is that in Wellard deprivation of liberty was treated as an essential ingredient of the offence of kidnapping.
50. In Cort the victims were induced to get into the appellant's car by fraud, whereupon he drove off. It was conceded by the defence that this constituted the necessary element of 'taking and carrying away'. The issue raised was whether, because each victim had been tricked into consenting to this, a necessary ingredient of the offence of kidnapping, namely absence of consent, was missing. The court held that because consent to the taking and carrying away had been induced by fraud, there was no need to prove lack of consent. With respect to the court, we think that it failed to ask the further question whether the taking and carrying away constituted a deprivation of liberty.
51. A passenger in a moving car is not free to leave it without the cooperation of the driver. We do not, however, consider that such a passenger is deprived of her liberty unless the driver is not prepared to allow her to leave the car if she wishes to do so. In Cort there was no suggestion that the appellant intended to detain his passengers in his car against their wills. Indeed, one of the two expressed a wish to leave the car and was permitted by the appellant to do so. The other was taken to the destination to which she wished to go and there permitted to leave the car. In these circumstances it seems to us that the vital element of deprivation of liberty was not made out and, had precedent been properly applied, the appellant should not have been convicted of kidnapping.
52. The court in Cort held that to persuade a person by a misrepresentation to agree to being driven to a particular place constitutes the offence of kidnapping. The court justified this conclusion as follows:

"Mr Cort's conduct was something that society should be able to control, and it is not difficult to think of other possibilities which would carry a more serious aspect than the conduct of Mr Cort. Let us say that another person, not Mr Cort, invites ladies into his car with a view to committing a rape on them at the end of their journey; or he simply invites them into the car with a view to finding out their address, or something like that, with further and less benign objects in view. He is intercepted on the journey, or at the bus stop. On those facts we do not think that there is an offence that would have been committed, certainly not an offence of attempt of any form of sexual assault. There would be no recourse other than this offence of kidnapping. It is clear, in our view, that a proper social purpose is served by the offence in these circumstances, including those in which Mr Cort was convicted."

53. It is open to the court to develop the common law to accommodate change and car ownership affords an opportunity for the types of objectionable behaviour envisaged by the court. We are not, however, persuaded that these considerations justified the radical change that appears to have been made in Cort to the offence of kidnapping. The Criminal Law Revision Committee, after recommending that unlawful detention should extend to the situation where the victim acquiesces because he believes that he is under legal compulsion went on to comment:

"We do not propose that other cases of deception should be included. The young man who persuades a girl to accompany him to a quiet spot on some untrue pretext, when in fact he is intending to make advances to her, should not be guilty of unlawful detention."

The decision in Cort does just that, at least in circumstances where the girl is taken to the spot in question in a car.

54. Where a man entices a woman into a car for the purpose of a criminal assault the likelihood is that his intention will be not to permit her to leave his company until the offence has been committed. He is also likely to intend to take her to a destination other than that of her choice. In that event the victim will not have consented to the adventure to which she has committed herself and the defendant's fraud will vitiate her apparent consent to being taken away. All the elements identified in R v D will be present.
55. We cannot see that there was justification for extending the offence of kidnapping to cover the situation in which the driver of the car has no intention of detaining his passenger against her will nor of doing other than taking her to the destination to which she wishes to go, simply because in some such circumstances the driver may have an objectionable ulterior motive. The consequence of the decision in Cort would seem to be that the mini-cab driver, who obtains a fare by falsely pretending to be an authorised taxi, will be guilty of kidnapping.
56. Cort was implicitly questioned by another division of this court in R v Nnamdi and De Vogt [2005] EWCA Crim 74. Professor Ormerod has also drawn attention to aspects of the reasoning in the judgment that are unsatisfactory - see Smith and Hogan 11^th edition at pp 575-9 and [2004] Crim LR 64. Our conclusion is that the decision in Cort represented an unjustified departure from established principle. It is, however, not necessary for us to consider whether we are bound to follow Cort for, even if it binds us, it is not determinative of the result on the facts of this case.
57. The fact that it is difficult on the facts of Cort to identify the deprivation of liberty that, on previous authorities, was an essential ingredient of kidnapping does not justify the further extension of the law for which Mr Carey has contended. He persuaded the judge and sought to persuade us that the offence of kidnapping will be committed if a defendant, by a fraudulent misrepresentation, induces a person to go from one place to another, even if that person is unaccompanied. In such circumstances there is nothing that is capable of constituting a 'taking and carrying away'. Even less is it possible to identify any deprivation of liberty. Mr Carey accepted that, if his submission was correct, the bigamist who induces 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 transforms the offence of kidnapping in a manner that cannot be justified, even on the basis of the decision in Cort.
58. For these reasons the judge was wrong to rule and to direct the jury 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 cannot of itself constitute either taking and carrying away or deprivation of liberty.
59. Having regard to the judge's direction it is possible that the jury convicted the appellant of having kidnapped John Atkinson and Sarah Smith by fraudulently inducing them to make a journey which did not deprive them of their liberty. The convictions in such circumstances cannot stand.
60. What of Mr Carey's belated alternative case? He submitted that there must have been occasions on which the appellant induced both John Atkinson and Sarah Smith to accompany him on a car journey by the false pretence that he was a secret service agent. Had they been given a correct direction on the law they would still have convicted the appellant of kidnapping.
61. It is possible that on one or indeed many occasions during the periods covered by the indictment the appellant induced John Atkinson and Sarah Smith to accompany him on a car journey as a result of his impersonation of a secret service agent and that, assuming Cort to be good law, a discrete offence of kidnapping was committed on each such occasion. It would, however, be quite wrong to permit the kidnapping convictions to stand on the basis that the jury would, if properly directed, have returned a guilty verdict in each case on the basis of one such incident. Where a jury's verdict demonstrates that the jury has been satisfied of all the ingredients of an offence it can be legitimate for the Court of Appeal to allow a guilty verdict to stand, even though there has been a defect in the judge's directions as to the law. That is not this case. It is impossible to deduce from the jury's two guilty verdicts on the kidnapping counts that they were satisfied of facts that justified those verdicts.
62. These are our reasons for allowing the appeal against conviction.

The appeal against sentence on the dishonesty counts.

63. Mr Owen QC submitted that the cumulative period of 9 years imprisonment to which the appellant was sentenced for the offences of dishonesty was manifestly excessive. Mr Owen accepted that the circumstances in which the sums, totalling about £500,000, had been extracted from the appellant's victims were, or were akin to, breach of trust. He relied upon R v Clark [1998] 2 Cr App R (S) 95 as providing guidance to the scale of sentencing in cases of breach of trust. That guidance indicated that for contested cases of dishonesty involving breach of trust where the amount involved fell within £250,000 and £1 million the range was between five and nine years imprisonment. In that case the sentence of the appellant, who had pleaded guilty to stealing £400,000 from his employer, a charitable trust and £29,000 from the Church was reduced from 5 years to 4.
64. The circumstances in which the offences occurred in the present case had features that very substantially aggravated the seriousness of the offences. They represented a very lengthy course of conduct under which the appellant used his malign influence to subject his victims to conditions of deprivation and misery. Having regard to these features we did not consider that the totality of the sentences imposed was excessive, let alone manifestly excessive. For this reason we dismissed the appeal against sentence.