Under the Theft Act 1968 (TA 1968), blackmail is a statutory offence, whereby one makes an unwarranted demand with menace to gain for themselves or another person; or to cause loss to another.
Elements of blackmail
A person is found guilty of blackmail, providing the following four elements are involved:
A peremptory request,
the demand was made with menace,
the menace was unjustified and,
they committed the crime intending to gain for themselves or another or to cause loss to someone else.
Defining a demand
The TA 1968 defines the term demand; however, this is often perceived as an insistent request, which could be expressed, implied, written or spoken.
If a defendant meets these requirements, they may be liable for the offence of blackmail. The jury must observe whether the offender attempted to disguise the demand as something else when proving blackmail, to ensure the right charge is given.
According to the law, blackmail can be committed without the intended recipient receiving the demand. However, at least one of the four offending elements must be proven to occur anywhere in England and Wales.
Jurisdiction is established if the communication of demand were sent either:
from a place in England and Wales to elsewhere, or
from a location elsewhere to a place in England and Wales
Essentially, menaces are threats of words or conduct that coerce someone into undertaking an unwarranted demand.
If the demand warranted apprehension from an ordinary person, this would be a sufficient reason for a jury’s consideration.
The jury may also charge a defendant as having acted with menace in cases where the offender makes a demand knowing that the individual would be susceptible to the particular threat, as they are operating with the intent to exploit that susceptibility.
Even if the threat fails to intimidate the receiver, whoever made the peremptory request could still be found liable if an ordinary person would have been apprehensive about executing that demand.
When are demands made with menace unjustified?
If the demander believes he has reason to make that demand, or that it is right to enforce the demand with menace, then the court may find the peremptory request to be warranted.
However, as the criterion is subjective, it is down to the prosecution to decide whether the defendant had reasonable grounds for the demand made with menace.
Defining to gain or cause a loss for blackmail
For the demand made with menace to amount to blackmail, the defendant must have acted with the view to gain for themselves or another; or intending to cause loss to someone else.
When referring to “gain” and “loss” for the offence of blackmail, these can be defined as:
Having the intention to gain what another has, which one may not, or to keep what one has been given.
Ensuring someone else does not get what one might acquire or take something away from another person.
For the purpose of blackmail, the gain or loss may be temporary or permanent; however, under TA 1968, the crime must carry some form of economic motivation.
Sentencing of blackmail
In the UK, the maximum penalty for blackmail is 14 years’ imprisonment.
The Sentencing Council does not provide a specific guideline for sentencing but advises the court to consider the statutory maximum sentence for the offence, sentencing judgments of the Court of Appeal and definitive sentencing guidelines for comparable crimes when coming to a decision.
Once a provisional sentence has been concluded, the court should consider the defendant’s level of culpability and harm, as well as any aggravating and mitigating factors to decide the severity of the offence.
Other purposes of sentencing, such as protecting the public and reducing the crime, should also be considered and weighed against the offender when determining the sentence.