Blackmail Flashcards
Blackmail—Theft Act 1968, s. 21
- Triable on indictment
- 14 years’ imprisonment
The Theft Act 1968, s. 21 states:
(1)
A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
(a)
that he has reasonable grounds for making the demand; and
(b)
that the use of the menaces is a proper means of reinforcing the demand.
(2)
The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
Blackmail
The phrase ‘with a view to’ has been held (albeit under a different criminal statute) by the Court of Appeal to be less than ‘with intent to’ (R v Zaman [2002] EWCA Crim 1862). In Zaman, the court accepted that ‘with a view to’ meant simply that the defendant had something in his contemplation as something that realistically might occur, not that he necessarily intended or even wanted it to happen. Clearly, this is a very different test from ‘intent’. In the above offence, then, it appears that the state of mind needed to prove the first element is that the defendant contemplated some gain for him/herself or for another as being realistically likely to flow from his/her actions. The alternative is an ‘intent’ to cause loss.
There is no requirement for dishonesty or theft and the offence is aimed at the making of the demands rather than the consequences of them.
Section 34 of the 1968 Act states:
(2)
For the purposes of this Act—
(a)
‘gain’ and ‘loss’ are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and—
(i)
‘gain’ includes a gain by keeping what one has, as well as a gain by getting what one has not; and
(ii)
‘loss’ includes a loss by not getting what one might get, as well as a loss by parting with what one has; . . .
Meaning of Gain and Loss
Keeping what you already have can amount to a ‘gain’. Similarly, not getting something that you might expect to get can be a ‘loss’.
For example, a person makes unwarranted demands with menaces with a view to getting a sports fixture cancelled and avoiding losing money that he/she has bet on the outcome of that fixture. Here the intention of keeping what the defendant already had (the money at risk on the bet) amounts to ‘gain’ as defined under s. 34(2). Similarly, the intention of preventing others getting what they might have got (their winnings or the club’s earnings) could amount to a ‘loss’.
A blackmailer need not be seeking any kind of material profit. In R v Bevans (1988) 87 Cr App R 64, the defendant, who was crippled with arthritis, went to a doctor, produced a gun and demanded a pain-killing morphine injection, threatening to shoot the doctor if he did not comply; this was held to be blackmail as the drug involved was a form of property.
Note that a demand for sexual favours would not constitute an offence of blackmail as those sexual favours are not ‘money or other property’.
Criminal Conduct
The offence of blackmail is complete when the demand with menaces is made. As a result, it is extremely difficult, if not impossible, to have an offence of attempted blackmail as the defendant will either be preparing to make the demand or will have made it. It does not matter whether the demands bring about the desired consequences or not. If a demand is made by letter, the act of making it is complete when the letter is posted. The letter does not have to be received (Treacy v DPP [1971] AC 537).
The Court of Appeal has held that words or conduct which would not intimidate or influence anyone to respond to the demand would not be ‘menaces’. As such, the term requires threats and conduct of such a nature and extent that a person of normal stability and courage might be influenced or made apprehensive so as to give in to the demands (R v Clear [1968] 1 QB 670).
Menaces will therefore include threats but these must be significant to the victim. If a threat bears a particular significance for a victim (such as being locked in the boot of a car to someone who is claustrophobic), that will be enough provided the defendant was aware of that fact. If a victim is particularly timid and the defendant knows it, that timidity may be taken into account when assessing whether or not the defendant’s conduct was ‘menacing’ (R v Garwood [1987] 1 WLR 319).
In the converse situation, where an apparently serious threat fails to intimidate the victim at all, the offence is still committed. For example, if X approaches Y and threatens to break Y’s legs unless Y gives X £50 but Y is unconcerned by the threat, this would still constitute blackmail as a threat to break someone’s legs would influence a person of normal stability and courage.
Unwarranted?
If a defendant raises the issue that his/her demand was reasonable and proper, you will have to prove that he/she did not genuinely believe:
- that he/she had reasonable grounds for making the demand; and
- that the use of the particular menaces employed was not a proper means of reinforcing it.
The defendant’s belief will be subjective and therefore could be entirely unreasonable. Whilst that is the case, such a subjective belief is subject to restriction. In R v Harvey (1981) 72 Cr App R 139, the defendant was convicted of kidnapping, malicious wounding, false imprisonment and blackmail. The charges arose out of an incident where he had been sold a substance that he falsely believed to be cannabis and in an attempt to get his money back he had made threats to kill, maim and rape. The defendant appealed on the basis that the judge’s summing-up on the blackmail charge in relation to what were ‘proper’ threats was p. 493↵wrong. The judge had said, ‘This is a matter of law. It cannot be a proper means of reinforcing the demand to make threats to commit serious offences.’ The appeal was dismissed and the conviction upheld. The question of the defendant’s belief should be left to the jury. The word ‘proper’ in s. 21(1) of the Theft Act 1968 had a wide meaning and no act which was not believed to be lawful could be described as ‘proper’. In the present case, the judge’s direction was not strictly correct, but no jury could hesitate before deciding that the defendant believed his threats to be ‘proper’.
