Business, Legal & Accounting Glossary
The action, treated as a criminal offense, of demanding payment or another benefit from someone in return for not revealing compromising or damaging information about them.
In the UK, Blackmail is an offence under section 21 of the Theft Act (1968). The actus reus of the offence is the making of a demand with menaces. What amounts to a demand can be implied from the circumstances (Collister v Warhurst 1955). The jury should not be given any further direction on the meaning of menaces, unless the victim is particularly vulnerable or timid (R v Garwood 1987).
The mens rea of the offence requires that the demand be unwarranted. The demand is not unwarranted if the defendant belives that he has reasonable grounds for making the demand or the use of the menaces is a proper means of enforcing the demand. This will never be so if the demand is a criminal act (R v Harvey 1981). The mens rea also requires an intention to make a gain for himself or another or to cause a loss to another. This must be measured in money or other property and can include keeping what one has or not getting what one might get (section 34(2) of the Theft Act (1968)).
Blackmail is the crime of threatening to reveal substantially true information about a person to the public, a family member, or associates unless a demand made upon the victim is met. This information is usually of an embarrassing or socially damaging nature. As the information is substantially true, the act of revealing the information may not be criminal in its own right nor amount to a civil law defamation; the crime is making demands to withhold it.
Blackmail is similar to extortion – the difference being that extortion involves an underlying, independent criminal act, while blackmail does not.
The word is derived from the word for tribute paid by English and Scottish border dwellers to Border Reivers in return for immunity from raids. This tribute was paid in goods or labour (reditus nigri, or “blackmail”): the opposite is blanche firmes or reditus albi, or “white rent” (denoting payment by silver).
Under section21(1) of the Theft Act 1968 of English law, a person commits the offence:
if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:
The Act uses the word “menaces” which is considered wider in scope than “threat” and involves a warning of any consequences known to be considered unpleasant by the intended victim. This covers the spectrum from actual or threatened violence to the victim or others, through damage to property, to the disclosure of information.
Pretexts for blackmail have included the threat to reveal adultery or criminal acts. But whatever the nature of the menace, it must be direct. Any vague threat to cause “something bad” to happen to some other person, except when certain demands are met, should not affect the mind of an ordinary person.
Commercial blackmail has become more common. This arises when a large commercial organisation receives credible information that it will suffer loss or damage in a particular way unless money is transferred.
There are two major areas of threat:
Debt collectors have been accused of blackmail, but those pursuing legal debts are generally able to justify their threats of repossession because, even though as it may be unpleasant to the victim, this is a legitimate use of lawful civil law remedies. By contrast, those chasing illegal debts (a gambling debt, for example, which was not until recently enforceable under English law) who back up their demands with the threat of bodily injury cannot avail themselves of the same defence. There will also be liability even though the debts are legally owed if the menaces are of a criminal nature, e.g. of an assault or more serious violence or criminal damage occurred. The offence criminalises the means adopted by the creditors as the social problem to be deterred, rather than the evasion by the debtors. The creditors are expected to use the standard judicial remedies to recover what is owing.
The maximum sentence under the terms of the Act is life imprisonment; this reflects the severity of the offense, which in turn, can consequently destroy a person’s reputation, personal life and livelihood.
If the elements of blackmail are not made out and the defendant has acquired a vehicle, a charge under s12 Act 1968 may be preferred, see TWOC.
To levy blackmail
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This glossary post was last updated: 18th April, 2020 | 2 Views.