Kidnappings

In criminal law, kidnapping is the abduction and restraint by force or unlawful transportation of a person usually in order to hold them captive against their will. This may be done with a demand for ransom in exchange for releasing them from concealment, or for other illegal purposes. Kidnapping can be accompanied by bodily injury which elevates the crime to aggravated kidnapping.

that does not result in a homicide is a hybrid offence that comes with a maximum possible penalty of life imprisonment (18 months if tried summarily). A murder that results from kidnapping is classified as 1st-degree, with a sentence of life imprisonment that results from conviction (the mandatory penalty for murder under Canadian law).

Article 282 prohibits hostaging (and 'kidnapping' is a kind of 'hostaging'). Part 1 of Article 282 allows sentencing kidnappers to maximum imprisonment of 8 years or a fine of the fifth category. Part 2 allows maximum imprisonment of 9 years or a fine of the fifth category if there are serious injuries. Part 3 allows maximum imprisonment of 12 years or a fine of the fifth category if the victim has been killed. Part 4 allows sentencing people that collaborate with kidnapping (such as proposing or make available a location where the victim hostaged). Part 1, 2 and 3 will apply also to them.

Kidnapping is an offence under the common law of England and Wales. Lord Brandon said in 1984 R v D:

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 fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse.

In all cases of Kidnapping of children, where it is alleged that a child has been kidnapped, it is the absence of the consent of that child which is material. This is the case regardless of the age of the child. A very small child will not have the understanding or intelligence to consent. This means that absence of consent will be a necessary inference from the age of the child. It is a question of fact for the jury whether an older child has sufficient understanding and intelligence to consent. Lord Brandon said: "I should not expect a jury to find at all frequently that a child under fourteen had sufficient understanding and intelligence to give its consent." If the child (being capable of doing so) did consent to being taken or carried away, the fact that the person having custody or care and control of that child did not consent to that child being taken or carried away is immaterial. If, on the other hand, the child did not consent, the consent of the person having custody or care and control of the child may support a defence of lawful excuse. It is known as Gillick competence.

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