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During arguments, many of us say things that we often later regret. But when is this a criminal offence? Even if a threat does not result in any violence actually taking place, making a threat to kill is a very serious offence in the UK that could result in a custodial sentence. Especially where threats to kill are made in the context of domestic abuse, they are taken very seriously by the courts. However, the good news is that a silly comment said in jest, or in a situation where the person that it is said to did not form the impression that you might actually carry out your threat, is unlikely to result in a conviction. In these circumstances, the defence can argue that the defendant did not intend to make the victim fear that the threat would actually be carried out. In addition, there are situations where you may have a ‘lawful excuse’ for making the threats. Read on to understand the crime of making threats to kill, and the sentence that you could face if you are convicted.
Yes, making a threat to kill is a crime pursuant to Section 16 of the Offences against the Person Act 1861. This establishes that an offence is committed where a person ‘without lawful excuse makes to another a threat, intending that the other would fear it would be carried out, to kill that other or a third person.’ There is no need to show that you actually intended to kill the person. No criminal offence is committed where there was no intention of making the person fear that you would kill them. The court can consider evidence of the previous history between parties as proof in respect of whether the defendant intended for his words to be taken seriously.
In order to convict someone of threats to kill, the prosecution must prove:
Self-defence can comprise a lawful excuse. Therefore, a threat to kill that is made in order to defend yourself or another, or to prevent a crime from occurring, may be lawful provided that it was reasonable in the circumstances to make the threat.
To achieve a conviction, the prosecution must prove each of these elements beyond reasonable doubt. If you rely upon the defence of self-defence, you must prove beyond reasonable doubt that you were acting in self-defence.
If the prosecution is able to prove that a threat of violence was used but not a threat to kill, you can only be convicted of a less serious offence, with a substantially lighter sentence. Where there are alternative pleas, your defence team can engage in the practice of ‘plea bargaining’ with the prosecution. This is where your defence team set out your position in respect of which charges you are willing to accept and enter a guilty plea for. If the defence can convince the prosecution that you would be willing to accept a lesser charge, the prosecution might accept this in order to avoid the expense and the risk of a trial.
Making a threat to kill is an either way offence. Usually if there are repeated threats or a visible weapon, the Magistrates’ Court will refuse to hear the case and send it to the Crown Court instead. Where your case is heard in the Crown Court, threats to kill could land you with a custodial sentence of up to ten years in prison. However, it is very rare for sentences for this offence to span a decade. If your case is heard in the Magistrates’ Court, the maximum sentence is 6 months’ imprisonment. The offence range is between a community order and 7 years in custody. When deciding the severity of your sentence the court will consider your culpability and the harm caused by the offence.
Factors that tend to suggest higher culpability include where the offence is sophisticated or has included significant planning; where the defendant has a visible weapon; where threats were made in the presence of children; where threats were made as part of a history or campaign of violence, or where threats were made in the context of significant violence. Culpability will be less where the offender’s responsibility was reduced by a mental disorder or learning disability, or where the offence was limited in scope or duration, e.g. if it was a one-off brief comment instead of a campaign of threats.
Harm will be measured by looking at the distress and/or psychological harm caused to the victim. The court will also consider the practical impact on the victim e.g. if the offence has caused them to change their everyday habits and routines. This could include changing their place of work, altering their transport arrangements, or moving their children to a different school.
Sentencing starting point
The two factors of culpability and harm will help the court arrive at the sentence starting point. For example, where a defendant waged a campaign of terror against a particular victim in the context of organised crime, their culpability will be taken to be high. Where this causes serious psychological harm to the victim, leading them to develop a fear of leaving their own home, the level of harm would also be high. In these circumstances, the starting point for the sentence would probably be four years’ custody, with a sentence range of between two to seven years’ custody.
On the other hand, say a person with serious learning difficulties threatens to kill their carer in a moment of rage. The carer was afraid, but it did not cause any documented mental illness. It is possible that this would not result in a conviction at all – the CPS may decide not to lay charges. However, if the threat was accompanied by holding a knife, the CPS may conclude that there is a policy need to press charges. In a situation like this, the court is more likely to take a more lenient approach although it would also need to recognise the need to punish a threat with a weapon seriously. At best, the defendant would receive a sentence starting point of a community level order. At worst, a custodial sentence of one year or less.
Aggravating and mitigating factors
Once the sentence starting point is arrived at, the court will take into account aggravating and mitigating factors relevant to the defendant. If you have previously committed similar offences in the past, this would serve as an aggravating factor. It will also be an aggravating factor if the offence is committed for a discriminatory reason – such as racism, or misogyny. In addition, it will be an aggravating factor if the offence is committed in the context of domestic abuse. This is because policy guidance to the CPS highlights that violence within the home should be taken especially seriously as the home is expected to be a place of safety. Factors which will enhance the seriousness within a domestic abuse situation include if the victim was especially vulnerable, or if steps were taken to prevent the victim from reporting the abuse or seeking assistance.
Mitigating factors include if you were young or immature when the incident occurred or if you were previously of good character. Evidence of remorse such as an apology to the victim (made in appropriate circumstances) or a genuine recognition of the need to change will also be looked upon favourably by the court. It will also be a mitigating factor if you are suffering from a long-term medical condition which requires urgent, intensive or long-term treatment.
After aggravating and mitigating factors are taken into account, the court will consider whether any deduction should be given to acknowledge your guilty plea. The earlier you plead guilty, the higher this deduction can be. The court will also consider whether the sentence is just and proportionate where the offender is being sentenced for more than one offence or is already serving a sentence for another crime. This is known as the ‘totality principle’. For more information, see the Sentencing Council’s guide here.
If you have been accused of threats to kill, there could be scope to put forward a strong defence. Perhaps you had a lawful excuse, or you did not intend to make the victim believe that your threat would be carried out. A good criminal defence solicitor will go through the events that occurred carefully with you in order to see where it might be possible to cast doubt on the prosecution’s case. At Stuart Miller Solicitors, we are ready to assist you today. Contact us for a no obligation consultation.
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