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If you are reading this article, it is likely that you or someone you care about is facing a blackmail charge or is already going through a prosecution for the same. This is an incredibly difficult experience for anyone, regardless of guilt or innocence, and we know that the legal process usually only adds to the confusion. The aim of this article is to provide some clarity around the offence of blackmail, give some examples, and outline sentencing and potential defences. The importance of obtaining legal representation cannot be overstated, so we also provide some information on how to get help from a qualified and experienced criminal defence solicitor.
Blackmail is a serious offence in English law, governed by Section 21 of the Theft Act 1968. The legislation states that a person is guilty of blackmail if, with a view to gain for himself (or herself) or another or with intent to cause loss to another, he (or she) makes any unwarranted demand with menaces.
Whether an act can be charged as blackmail depends on whether several elements are proven by the prosecution. Each of them must be proven for a conviction to be secured.
Under the Act, the prosecution must prove that:
There was a ‘demand’, which may be explicit or implicit, and may or may not be made in person.
The demand was accompanied by ‘menaces’, which is a broad term that basically means ‘any kind of threat’. The threat can be of physical harm, reputational ruin, damage to property, or any other form of harm or disadvantage, financial or otherwise. The standard, as determined by case law, is whether an ordinary person of normal stability and courage might feel coerced by the threat.
The demand was ‘unwarranted’. In other words, that there is no reasonable cause for the demand and the use of menaces is not a proper means of reinforcing the demand. The onus is on the defendant to prove that the demand was warranted.
The demand with menaces was made with the intention of making a gain for the person making the demand or another, or with the intention of causing a loss to another person. ‘Gain’ and ‘loss’ extend beyond just financial or property loss or gain, and can include any gain or loss in money or other property.
Clearly, the offence of blackmail can encompass a wide range of conduct, and is not just limited to situations involving demands for money or other property, as we often imagine when we think of blackmail. As explored later, the maximum penalty for blackmail under Section 21 of the Theft Act 1968 is 14 years’ imprisonment.
Blackmail can take many forms and, as mentioned, it is not confined to the classic scenario of demanding money in return for silence. It can include threatening to reveal personal photos, damaging a person’s property, or coercing someone to commit an act they otherwise wouldn’t.
Demanding money from another person in return for not revealing compromising information (extortion). For example, someone might discover a businessman’s affair and demand money in return for their silence.
Threatening to reveal embarrassing or damaging secrets about another person unless they comply with certain demands. For instance, a person could threaten to publicise a politician’s past wrongdoings unless they receive a specific favour.
Sometimes, kidnappers demand a ransom in return for the safe release of their victims. This constitutes blackmail as they are making an unwarranted demand with menaces.
Engaging in cyber tactics, such as threatening to reveal intimate images or videos of another person unless they comply with their demands, often for more explicit material or for money. Another example is ransomware attacks, where hackers encrypt a victim’s data and demand money in return for the decryption key.
In a business context, an individual might threaten to disrupt business operations unless they receive payment or another form of benefit. For example, a supplier might threaten to halt deliveries unless their contract is renegotiated at a higher price.
Public figures, such as celebrities or politicians, may be blackmailed with threats to reveal compromising information that could harm their public image unless demands are met.
Each of these examples may also overlap with other crimes, which may lead to blackmail being prosecuted alongside a more serious or lesser offence.
There is no specific ‘minimum’ sentence for blackmail, though given the seriousness of the offence, short sentences are unlikely. The court will consider each case on its individual merits, taking into account factors such as the seriousness of the threat, the impact on the victim, and whether the demand was met. The maximum sentence for blackmail under English law is 14 years’ imprisonment.
In determining the appropriate sentence up to that maximum, the court will consider both aggravating and mitigating factors. Aggravating factors are those that may increase the severity of the sentence, while mitigating factors may decrease it (meaning longer or shorter sentences in the end).
Here are some potential aggravating factors that could affect the sentence:
In short, yes, there are defences available for those accused of blackmail. These can include arguing that the alleged threats were not ‘unwarranted’, that there was no intention to cause gain or loss, or that the accused was under duress or threat themselves at the time.
A defence of mistaken belief can also be raised if the accused believed they had a legal right to make the demand. For example, a person might believe they have the right to demand payment of a debt, even if the way they go about it is later considered to constitute blackmail.
These defences are provided by Section 21 of the Theft Act 1968 in conjunction with other applicable general defences in English criminal law. To understand exactly how a defence might apply to your case, seek the advice of a criminal defence solicitor who has proven experience handling difficult cases like blackmail.
Engaging a solicitor to defend you in a case of alleged blackmail is critical, not least because it is one of the more serious crimes punishable by imprisonment in English law. The law surrounding this offence can be complex and each case has unique factors that need careful consideration. An experienced blackmail solicitor can help you understand your position, advise you on potential defences, represent you in court (or get a barrister to do so), and negotiate on your behalf.
Getting help as early as possible is critical in blackmail cases, especially if your case involves any digital materials (emails, text messages, phone call records, etc.) that may get destroyed as time goes on. There is no easy way to deal with a case of blackmail being made against you, but having a solicitor on hand whom you can trust can make all the difference. For a free non-judgemental consultation about your options and what you should do next, get in touch with the team at Stuart Miller Solicitors today.
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