What is Blackmail?

Blackmail is defined in the Theft Act 1968 as the making of any unwarranted demands with menaces by a person with the intention of gain for himself or another or with the intent to cause loss to another. This means that the offender will threaten the victim with unwarranted demands and if the victim does not comply they will do something against the victim’s wishes.

Blackmail is a serious offence that is triable only on indictment and is subject to a maximum penalty of 14 years’ imprisonment.

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Elements of the offence

A demand

A demand can be explicit or implicit or even a request. The important element is that the defendant is making the demand. It does not need to be done via words and could be actions or the behaviour of the offender. The victim does not actually need to receive the demand- once it is in the form of a communication (for example, written down) then this will qualify.

Demands can be phrased as a request or appear to be an offer of assistance (for example protection). What is important is that the action puts menacing pressure on the victim.

Made with menaces

The term menaces mean a serious or significant threat. If the words or actions would not intimidate or influence a person to follow the demands, then they would not be menaces.

If the person being threatened is known by the defendant to be particularly timid or likely to be affected by the threat then this does not give the defendant a defence. Similarly, if the person threatened does not feel intimidated even by a serious threat, this does not mean that the offence of blackmail has not been committed where an ordinary person would have felt threatened.

Unwarranted menaces

Demands will be “unwarranted” unless the offender can show that:

• They had reasonable grounds to make the demands.
• The menaces were a proper way to make sure they occurred.

It is a subjective test so will depend on what the offender reasonably believed. This is an important element since the offender could believe that they have a legal right to their demands but the issue is the menaces that they are using to bring them about.

Even if the threat is something that is morally defendable (for example, revealing that the offender is stealing from someone else if the demands are not met) the crime of blackmail may be applicable since the threat could still be unwarranted. It should also be noted that where the threat is illegal, the defendant would not be able to argue that the threat is proper.

The defence needs to raise this element as an issue but once it has been raised, it is up to the prosecution to disprove it.

View to gain or intent to cause loss

Gain or loss is limited to money or property (so a non-monetary or sexual advantage is not blackmail). The gain or loss does not need to be permanent and can include:

• Something that the offender already has that they wish to keep.
• A loss to the victim of something that they do not currently have but that they would get if the actions were not performed.

The threat

Blackmail will often involve a threat to the victim that if the demands are not met, the offender will expose something about the victim that would be harmful. The information does not need to be true- often threats are made that false information will be released that is damaging.

Sextortion

Sextortion is a form of blackmail where victims are recorded performing sexual activities. There has been a huge rise in cases of sextortion in recent years with the explosion of social media and online dating platforms, that criminals often target. Another issue is the fact that everyone’s mobile is able to record and take photos of increasingly high quality. There is then a threat to share the images or videos if certain actions are not performed. This can be done by professional criminals online or by ex-lovers for revenge.