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In common usage, blackmail is a crime involving unjustified threats to make a gain or cause loss to another unless a demand is met. It may be defined as coercion involving threats of physical harm, threat of criminal prosecution, or threats for the purposes of taking the person's money or property. It is the name of a statutory offence in the United States, England and Wales, Northern Ireland, and Victoria, and has been used as a convenient way of referring to other offences, but was not a term of art in English law before 1968. It originally denoted a payment made by English people residing along the border of Scotland to influential Scottish chieftains in exchange for protection from thieves and marauders.
Blackmail may also be considered a form of extortion. Although the two are generally synonymous, extortion is the taking of personal property by threat of future harm. It is the use of threats to prevent another from engaging in a lawful occupation and writing libelous letters or letters that tend to provoke a breach of the peace, as well as use of intimidation for purposes of collecting an unpaid debt. Some US states distinguish the offenses by requiring that blackmail be in writing.. In some jurisdictions, the offence of blackmail is often carried out during the act of robbery. This occurs when an offender makes a threat of immediate violence towards someone in order to make a gain as part of a theft. For example, the threat of "Give me your money or I will shoot you" is an unlawful threat of violence in order to gain property.
The word is variously derived from the word for tribute (in modern terms, protection racket) paid by English and Scottish border dwellers to Border Reivers in return for immunity from raids and other harassment. The "mail" part of blackmail derives from Middle English male, "rent, tribute." 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). Alternatively, Mckay derives it from two Scottish Gaelic words blathaich pronounced (the th silent) bla-ich (to protect) and mal (tribute, payment). He notes that the practice was common in the Highlands of Scotland as well as the Borders.
The offence created by section 17(1) of the Criminal Justice (Public Order) Act, 1994 is described by the marginal note to that section as "blackmail, extortion and demanding money with menaces". The offence is derived from the offence under section 21 of the Theft Act 1968.
(1) A person is guilty of blackmail 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:
(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
- (a) that he has reasonable grounds for making the demand; and
- (b) that the use of the menaces is a proper means of reinforcing the demand.
The word "menaces" was adopted from sections 29(1)(i) and 30 of the Larceny Act 1916. Section 29(1)(i) made it felony for a person to utter, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any property or valuable thing. Section 30 made it an offence for a person to, with menaces or by force, demand of any person anything capable of being stolen with intent to steal the same.
Thorne v Motor Trade Association was decided under section 29(1)(i) of the Larceny Act 1916. Professor Griew described it as "the leading case" on the meaning of the word "menaces". In this case, Lord Wright said:
I think the word "menace" is to be liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended.
And Lord Atkin said:
The ordinary blackmailer normally threatens to do what he has a perfect right to do namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure, as of a felony, to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something that a person is entitled to do either causes the threat not to be a "menace" ... or in itself provides a reasonable or probable cause for the demand.
This passage must be read subject to the facts that: (1) there is no longer a duty to disclose a felony because misprision of felony was abolished by section 1(1) of the Criminal Law Act 1967 (2) the defendant accused of blackmail no longer has to justify his demand, and the gravamen of the offence is no longer a demand without reasonable or probable cause, but is now instead the absence of a belief that there are reasonable grounds for making the demand and that and that use of the menaces is a proper means of reinforcing the demand.
Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces ... but threats and conduct of such a nature and such an extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwilling to the demand would be sufficient for a jury's consideration.
There may be special circumstances unknown to the accused which would make the threats innocuous and unavailing for the accused's demand, but such circumstances would have no bearing on the accused's state of mind and of his intention. If an accused knew that what he threatened would have no effect on the victim it might be different.
In R v Lawrence and Pomroy, the defendant argued that the direction given to the jury should have contained a definition of the word "menaces" in accordance with R v Clear. Cairn L.J. said:
The word "menaces" is an ordinary English word which any jury can be expected to understand. In exceptional cases where because of special knowledge in special circumstances what would be a menace to an ordinary person is not a menace to the person to the person to whom it is addressed, or where the converse may be true, it is no doubt necessary to spell out the meaning of the word.
The word "menaces" has been held to include the following:
Professor Griew said that the word "menaces" could conceivably include:
David Ormerod said that it extends to a threat to damage property.
Mode of trial
Blackmail is an indictable-only offence.
A person convicted of blackmail is liable to imprisonment for any term not exceeding fourteen years.
In R v Hadjou, Lord Lane CJ said that blackmail is one of the ugliest and most vicious crimes because it often involves what he described as "attempted murder of the soul". He said that, perhaps because courts always impose severe sentences, one seldom finds a person convicted a second time of blackmail. He said that deterrence is perhaps the most important part of a sentence in a case of blackmail.
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When committing the offence of blackmail, various other offences may also be carried out during the course of this criminal conduct:
A blackmailer who threatens to disclose the commission an offence may also commit an offence under section 5 of the Criminal Law Act 1967 if he subsequently accepts consideration from the victim.
|This section does not cite any references or sources. (August 2012)|
Before the enactment of section 21 of the Theft Act 1968, the word blackmail was not a legal term of art. The word was used by lawyers as a convenient way of referring to the offences under section 29 to 31 of the Larceny Act 1916 and those offences were commonly known as blackmail. But the word blackmail did not appear anywhere in that Act.
Hogan described these offences as "an ill-assorted collection of legislative bric a brac which the draftsmen of the 1916 Act put together with scissors and paste."
They are replaced by section 21 of the Theft Act 1968.
"Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both."
The offence of blackmail is created by section 87 of the Crimes Act 1958.
Sections 87(1) and (2) are derived from and identical to sections 21(1) and (2) of the Theft Act 1968 printed above.
Section 87(3) provides that a person guilty of blackmail is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).
From a libertarian perspective, blackmail is not always considered to be something that should be treated as a crime. Some libertarians point out that it is licit (in the United States at this moment in time) to gossip about someone else's secret, to threaten to publicly reveal such information, and to ask a person for money, but it is illegal to combine the threat with the request for money. They say this raises the question, "Why do two rights make a wrong?"