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The Law of Blackmail
 
 
 
 
 
 
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.
 
 
 
Elements of 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:
 
 
 
 
Treacy v DPP [1971] AC 537  Case summary
 
 
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The demand is a continuing act and continues until the threat is withdrawn:
 
 
 
R v Hester [2007] EWCA Crim 2127 Case summary 
 
 
 
Menaces
 
 
For liability for blackmail to arise, the demand must be accompanied by menaces.
 
 
The menaces may be express or implied:
 
 
R v Lawrence and Pomroy (1971) 57 Cr App R 64  Case summary
 
 
 
 
It has long been held that 'menaces' for blackmail, extends beyond threats of physical violence:
 
 
 
 
R v Tomlinson [1895] 1 QB 706  Case summary
 
 
 
 
Thorne v Motor Trade Association [1937] AC 797 Case summary
 
 
 
 
 
However, 'menaces' is a strong word suggesting a high degree of coercion to give rise to criminal liability for blackmail:
 
 
 
R v Harry [1974] Crim LR 32  Case summary
 
 
 
The phrase 'menacing pressure' is often used to demonstrate the level of severity required to amount to blackmail:
 
 
 
 
R v Jheeta [2007] EWCA Crim 1699 Case summary
 
 
 
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.
 
 
 
R v Lambert [2009] EWCA Crim 2860 Case summary
 
 
 
 
 
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.
 
 
R v Garwood [1987] 1 All ER 1032 Case summary 
 
 
 
Unwarranted demand
 
 
 
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.'
 
 
 
R v Harvey (1981) 72 Cr App R 139 Case summary
 
 
 
 
 
An example of a warranted demand:
 
 
 
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:
 
 
 
R v Bevans (1988) 87 Cr App R 64 Case summary
 
 
 
The gain or loss need only be temporary. Gain includes keeping what one has and loss includes not getting what one might get.
 
 
 
The Law of blackmail