The offence of blackmail is set out in s.21 Theft Act 1968. Under the Act, blackmail consists of making an unwarranted demand with menaces with a view to making a gain or causing a loss. By s.21(3) Theft Act 1968, the maximum sentence for blackmail is 14 years.
Elementsof blackmail
To be liable for blackmail the defendant must:
Make a demand
With menaces
The demand must be unwarranted
have a view to make a gain for himself or another or have intent to cause a loss to another
Demand
The demand for the purposes of blackmail may be express or implied:
R v Collister & Warhurst (1955) 39 Cr App R 100 Case summary
Where a demand is made by post, the demand is deemed to have been made, the moment it is posted:
Thus there is no requirement that the demand be communicated to the victim for liability for blackmail to arise. A demand could therefore be made by an e-mail that is unread, a text message not read, left on an answer machine or spoken but not heard.
The demand is a continuing act and continues until the threat is withdrawn:
There is no requirement that the one who is making the demand is to be the one carrying out the menaces nor is it a requirement that the person making the demand is in a position to carryout the threatened action.
The test as to whether a particular threat amounts to menaces is objective:
R v Clear [1968] 1 QB 670 Case summary
However, where the victim is particularly vulnerable or of a timid nature the jury may find menaces existed, where the defendant was aware of the affect of his actions on the victim.
Under s.21 (1) Theft Act 1968, for the purposes of blackmail, a demand with menaces is unwarranted unless the person making the demand believes both:
(a) that they had reasonable grounds for making the demand and
(b) that the use of menaces is a proper means of reinforcing the demand.
It is the defendant's belief that matters, not whether in fact they are entitled to the money or property demanded. This is decided by a purely subjective test. However, where the defendant threatens criminal action and knows their threatened actions amount to a crime, they can not believe the demand was 'proper.'
Thorne v Motor Trade Association [1937] AC 797 Case summary
With a view to make a gain or intent to cause loss
S. 34(2)(a) Theft Act 1968 defines 'gain'and 'loss' as including only gain or loss of money or other property. This would exclude from the remit of blackmail demands of a sexual nature. However, generally property of some kind can be found to exist:
