What is blackmail under UK law?

Section 21 Theft Act 1968

Section 21 of the Theft Act 1968 provides for the criminal offence of blackmail under the laws of England and Wales.

What is meant by blackmail?

Under the Theft Act 1968 the criminal offence of blackmail consists of making an unwarranted demand with menaces with a view to making a gain or causing a loss.

What elements need to be established in order to prove the criminal offence of blackmail?

In order to prove the criminal offence of blackmail it must be shown that the defendant has done the following things:

• That the defendant made a demand
• With menaces
• That the demand was unwarranted
• That the defendant has a view to make a gain for himself or another or have intent to cause a loss to another

Demand

Does the demand have to be an express demand?

There is no requirement under the Theft Act to show that a demand had been made expressly. Accordingly if a demand is implied this may be enough to prove blackmail under the Theft Act.

What is the case if a demand has been made by post?

In the situation whereby a demand has been made by post, the demand will be deemed to have been made the moment that it is posted. This means that the demand will have been made before the individual upon whom the demand is placed was even aware of it occurring. Accordingly there is no requirement that the victim be aware of the demand for it to arise.

Can this be extended to other forms of communication such as email?

This can be extended to other forms of communication and does not stop simply at postal communication.  Accordingly forms of communication such as email or text message will be included.

Following the fact that there is no need for the victim to be aware of the demand for it to be made it follows that a demand could take the form of an unread email or text message or even an answer machine message left which has not yet been listened to.

Is it possible to withdraw the demand?

For the purposes of section 21 of the Theft Act the demand will remain in existence as a continuous demand until it has been withdrawn.

Menaces

Under Section 21 of the Theft Act in order for liability for blackmail to arise the demand must be accompanies by menaces.  The menaces can be express or implied.

What is meant by menaces?

Menaces is a strong word which suggests that there must be some high degree of coercion in order to force an individual to undertake a particular course of action.

Do menaces have to be threats of physical violence?

Although a menace for the purposes of blackmail can include a threat of physical violence and in a lot of cases it does there is not a requirement to prove that the threat was physical violent. Therefore over forms of menaces such as a threat to expose some form of secret will be deemed enough to constitute blackmail for the purposes of the Theft Act.

Does the individual who is making the demand have to be the same individual who will carry out the menaces?

Under Section 21 of the Theft Act there is no requirement to show that the individual who is making the demand is the same individual who is carrying out the menaces. Neither is it a requirement under Section 21 to show that the person making the demand is in a position to undertake the threatened action.

Unwarranted demand

Under Section 21 (1) of the Theft Act 1968 for the purposes of blackmail, a demand with menaces will be regarded as unwarranted unless the person making the demand believes both of the following:

• That they had reasonable grounds for making the demand
• That the use of menaces is a proper means of reinforcing the demand

How can it be shown that the defendant believed the above two factors?

When looking at the two factors above it is the belief of the defendant which is the important factor. This means that it is not concerned with the fact as to whether they are entitled to the money or property demanded.

What test is used to establish this?

This factor will be decided by a subjective test – that is the genuine belief of the actual defendant.

In the situation whereby the defendant threatens an action which is criminal and they know that their threatened action amounts to a crime, it cannot be shown that they believed that the demand was proper.

With a view to make a gain or intent to cause a loss

Section 34 of the Theft Act 1968 defines gain and loss as including only gain and loss of money or other property.

Would demands of a sexual nature fall within the remit of the Theft Act?

It follows that according to the definition under Section 34 of the Theft Act demands of a sexual nature would fall outside the remit of blackmail under the Theft Act.

What is the maximum prison sentence for blackmail under the Theft Act?

For the offence of blackmail under the Theft Act the maximum prison sentence is 14 years.