NICOLINN NANA ADJOWA KWAW

CRIMINAL LAW II
10094770

With the aid of statutory provisions and case law, distinguish between the offences of
Kidnapping and Abduction under Ghanaian law.

Section 1 of the Criminal Acts, Act 29 defines crime as any act punishable by death or
imprisonment or fine. An act or omission cannot be a crime if it is not expressly prohibited by
law. Article 19 of the 1992 constitution states “that no person shall be convicted of a criminal
offence unless the offence is defined and the penalty for it is prescribed in a written law”.
The offence of Kidnapping is found in the ​Criminal Offences Act, 1960 (Act 29) section 90
which defines Kidnapping as “ a person who unlawfully imprisons any other person, and takes
that other person out of the jurisdiction of the Cour, without the consent of the other person” or “
a person who unlawfully imprisons any other person within the jurisdiction of the Court, in a
manner that prevents the other person from applying to a Court for release or from discovering to
any person the place of the imprisonment, or in a manner that prevents a person entitled to have
access from discovering the place where the other person is imprisoned”. A person who kidnaps
another person commits a second degree felony per ​Section 89 of Acts 29. ​In the case of
Regina v D​, ​The House defined the common law offence of kidnapping as the taking or carrying
away of one person by another, either by force or by fraud, without the consent of the person
taken or carried away and without lawful excuse. With this Lord Brandon gave the necessary
ingredient for the offence of Kidnapping; (i) the taking or carrying away of one person by
another; (ii) by force or by fraud; (iii) without the consent of the person so taken; and (iv)
without lawful excuse. The courts held that a father could be liable for kidnapping his own son if
there is a court order granting custody to the mother and he goes ahead and takes the child away
without the mother’s consent. In ​Pradeep Kumar v. State of Bihar and Anr held that the
consent obtained by lying to the father of the girl regarding the purpose of taking his minor
daughter away cannot be termed as consent under the purview of this section and such taking
away would amount to kidnapping. Regarding the elements of the offence, there need not be the
need to establish the element of Mens Rea. In ​Regina v Wellard​, ​The defendant had induced a
girl to accompany him about 100 yards to his car and to get into the back of it, by pretending to
be a police officer searching for drugs and saying that he would escort her to her home. Robert
Goff J, had directed the jury that the prosecution had first to prove was that the defendant
deprived the victim of her liberty, and then show that he had secreted his victim or carried her
away, 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. Where there is said to be a
consent, then the accused is not liable for the offence of Kidnapping. ​Varadarajan v State of
Madra, ​Where a minor girl, alleged to be taken away by the accused person, had left her father's
protection knowing and having capacity to know the full import of what she was doing and
voluntarily joined the accused, it could not be said that the accused had taken her away from the
keeping of her lawful guardian.
However with the offence of Abduction the necessary element to be proved is the requirement of
Mens Rea that is the intention to commit the offence must be present as compared to
Kidnapping. The Mens Rea of the offence includes the intent to deprive a person entitled to the
possession or control of the child The criminal code of 1960 (Act 29) states under Section 92
“a person commit the criminal offence of abduction of a child who with intent to deprive a
person entitled to the possession or control of the child or with intent to cause the child to be
carnally known or naturally carnally known by any other person”. By virtue of Act 554, the
protection has been extended to males under the age of 18. The age requirement is an important
factor to find liability. A person who commits the offence of abduction commits a misdemeanor.
A person commits abduction either by unlawfully taking the child from the lawful possession
care or charge of a person or detaining the child and preventing him or her from returning to the
lawful possession care or charge of a person. In Denyo v the state​, The appellant was charged
with the offence of abduction of an unmarried female under the age of 18 years contrary to
section 91 of Act 29. Upon appeal, fresh evidence was led by the appellant to the effect that the
victim was married with a 2 year old child. Held allowing the appeal: the prosecution must prove
strictly the age of the girl. The fact that she had a two-year-old child should have called for
stricter proof of her age. Mistaken belief concerning the age of the victim is immaterial. Unlike
abduction age matters. In ​R v Wakeman​, A conviction for taking children from their mothers'
control without lawful authority under the Child Abduction Act 1984 s.2(1)(a) was upheld
where, at trial, since it could have been conceded that the children were deflected by the
defendant from doing what they would, with parental consent, have otherwise been doing. In the
case of ​Bahadur Ali v King Emperor​, the accusedMisrepresented himself as a police constable
and kept a girl in his house for a ransom of Rs 600. The court held that his act amounted to
abduction.

The differences also set out above can be outlined in the following;
1. In the case of kidnapping age is not a factor to be considered. A victim may be of any age
of Kidnapping where as in the case of Abduction age requirement is an important factor.
2. Kidnapping requires the elements of Actus Reus whereas Abduction requires the element
of Mens Rea.
3. Section 93 of Acts 29 states A person that's not commit the criminal offence of abduction
by taking or detaining a child unless that person knew or had grounds for believing that
the child was in possession, control, care, or charge of another person, Kidnapping
requires the consent of the person or the victim.
4. Person who commits the offence of kidnapping commits a second-degree felony while
the offence of abduction, the accused is charged with a Misdemeanor.