Part II - Burglary & Blackmail: Theory Flashcards
Burglary: theory - burglary in practice
> England & Wales top the international league table for domestic burglary.
Rate of burglaries depends very much on where in the country a person lives, their age, and lifestyle.
Has been dramatic reduction over past 25 or so years.
Burglary: theory - why is burglary an offence?
> Emotional & financial effect on Vs.
A study by Maguire & Kynch (2000): 20% of Vs were very much affected & 84% suffered some kind of emotional reaction. Also 14% reported difficulty sleeping.
What distinguishes burglary from theft?
Why should it be burglary to enter as a trespasser intending to steal, even if D doesn’t actually steal?
Is D’s intent sufficient to permit the law transform the civil wrong of trespassing into a serious criminal offence?
1. Burglary as aggravated theft.
-Can be seen as theft plus trespassing, although doesn’t explain s. 9(1)(a) which doesn’t require theft be committed.
2. Violation of the V’s private home.
-Maguire & Bennett = can be seen as violation of V’s home, which represents a person’s identity, security & privacy.
-‘Safe space’.
-Lord Bingham in Brewster [1998]: explained psychological harms to Vs should be accounted for when sentencing.
3. Increased likelihood of harm.
-Serious issue for society as could lead to violence.
-Cook & Ludwig (2002) argue that higher rates of gun possession amongst householders do not mean there are lower rates of burglary.
Blackmail Theory - the incidence of blackmail
> Doesn’t often reach the courts.
Nowadays if someone has secret about another they are more likely to tell story to press than use it for blackmail.
Lord Lane in R v Hadjou (1989):
-“In the calendar of criminal offences blackmail is one of the ugliest… because it involves what really amounts, so often, to attempted murder of the soul.”
Blackmail Theory - why is blackmail a crime? 2 parts
- The paradox of blackmail
2. Some possible resolutions of the paradox
Blackmail Theory - why is blackmail a crime? The paradox of blackmail
> Why should the combination of a threat which in itself is not an offence and a request which in itself is not an offence constitute a crime?
Essentially, blackmail involves a threat to do a completely lawful activity.
This is known as the paradox of blackmail.
Blackmail Theory - why is blackmail a crime? resolutions to the paradox
- The wrong of blackmail is the manipulation of V’s mind:
- Leo Katz suggests blackmail is analogous to robbery as it is about taking property from V using immoral means.
- However, Block and McGee (1999): companies use misleading/manipulative adverts which can be regarded as immoral but not normally criminal. - The wrong of blackmail is causing V fear.
- Under this theory, it’s seen as analogous with assault.
- Difficulty = emotional harm, even if immoral, not normally criminal. - Offence could be seen as a means of protecting privacy (Alldridge):
- Michael Gorr = wrong of blackmail is that it’s wrong to reveal personal information.
- Moral principle underlying this argument is contestable.
- E.g. is it wrong to tell friend that BF is cheating on her? - It could be argued that a blackmailer who says they will keep quiet about some wrong if paid becomes complicit in this way. (Altman).
- However, blackmail doesn’t always involve a revelation of an evil. - George Fletcher sees the notion of domination as being at the heart of blackmail.
- Form of moral slavery.
- Works less well when single incidence of blackmail and so doesn’t have continuing power over V. - Mitchell Berman proposes the ‘evidentiary explanation of blackmail’.
- We can assumes the revelation of private material for gain is done for morally unacceptable reasons because if it were for good motives than D would keep silent or reveal info freely.
- So not act of blackmail being punished, but rather the morally unacceptable motive undermining it. - J. Murphy & Hardin & others = blackmail produces harmful results to society.
- E.g. turn to crime to meet blackmailer’s demands (Epstein, Shavell).
- Gordon: imagine life without blackmail law, e.g. people taking intrusive investigations of others life for money.
- Block: but, all kinds of things have harmful effects, e.g. fattening foods. - Scott Altman suggests although no single theory explains law of blackmail they provide a ‘patchwork’ explanation of the offence.
> Some commentators, e.g. Block, argue that difficulties in specifying wrong of blackmail indicates no good reasoning for justifying the offence, and it should be legalised.
Grant Lamond offers reasons for offence in ‘Coercion, Threats & Blackmail’ 1996.
Blackmail Theory - why is blackmail a crime? G. Lamond
> G. Lamond, ‘Coercion, Threats and Blackmail’ 1996:
-Puzzle of blackmail “rests in the impermissibility of demanding something in exchange for abstaining from what would otherwise be a permissible action.”
Blackmail threats can be divided into 3 categories:
1. Threats of actions which are impermissible per se.
2. Threats to perform actions which the maker is already duty-bound to perform.
3. Threats where the action is permissible but not mandatory: maker of threat isn’t bound to taken action but may do so.
First 2 are unproblematic, especially first one.
3rd category = most puzzling. Impermissible to do something permissible?
First step is to appreciate that the actions aren’t actually permissible because permissibility of action rests as much on reasons for taking them as in their consequences.
To do these things in order to bring about the unwelcome effects upon another is impermissible.
The idea that there is a ‘puzzle’ of blackmail, therefore, rests on too limited a view of which actions are impermissible.
Intrinsic significance of actions - based on reason for action not its’ consequence.
Many impermissible actions, of course, lie beyond legal regulation. There are limits to what can be rightly or practically regulated by law. Many immoralities, such as certain types of lies, are not the appropriate concern of the law.
Action’s consequence may not be serious enough to warrant legal redress which is why many of the threatened actions involved in blackmail aren’t themselves subject to legal sanction, despite their impermissibility.
The dominant party seeks to secure an advantage which it is permissible to enjoy only with V’s consent.
Where a party’s consent is secured though his being presented with the choice of avoiding an impermissible action, that consent does not serve the purpose of allowing that party to control a state of affairs.
Unless the threat is justifiable any consent it induces is defective.
The harm, then, which is involved in blackmail is the non-consensual obtaining of whatever is demanded from V which explains why blackmail has traditionally been treated as a property crime and its analogues have been located with SOs and OAPs.
Blackmail Theory - why is blackmail a crime? Concluding thoughts
> Potential psychological impacts or burglary & blackmail which make them serious.
Legal difficulties in defining these offences is in drawing the line between what are legitimate requests & what becomes a threat or blackmail, and between non-criminal trespass and the offence of burglary.
