Blackmail

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For other uses, see Blackmail (disambiguation).

Blackmail is an act, often a crime, involving unjustified threats to make a gain or cause loss to another unless a demand is met.[1][2] 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.[1][3][4][5][6][7][8] It is the name of a statutory offence in the United States of America, England and Wales, Northern Ireland, and Victoria, Australia, 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.[8] It originally meant payments rendered by settlers in the Counties of England bordering Scotland to chieftains and the like in the Scottish Lowlands, in exchange for protection from Scottish thieves and marauders into England.[3][4]

Blackmail may also be considered a form of extortion.[1] Although the two are generally synonymous, extortion is the taking of personal property by threat of future harm.[9] Blackmail is the use of threats to prevent another from engaging in a lawful occupation and writing libelous letters or letters that provoke a breach of the peace, as well as use of intimidation for purposes of collecting an unpaid debt.[4] Some US states distinguish the offenses by requiring that blackmail be in writing.[4] 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 "Your money, or your life!" is an unlawful threat of violence in order to gain property.[citation needed]

Etymology[edit]

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."[10] 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.[11]

Republic of Ireland[edit]

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.

United Kingdom[edit]

England and Wales[edit]

In England and Wales this offence is created by section 21(1) of the Theft Act 1968. Sections 21(1) and (2) of that Act provide:

(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:

(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.

(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.

Menaces

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[12] 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".[13] 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.[14]

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. [...] 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.[15]

R v Clear[16] was decided under section 30 of the Larceny Act 1916. Sellers LJ said:[17]

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.

He continued:

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,[18] 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.[19]

The word "menaces" has been held to include the following:

  • a threat to publish attacks on a company calculated to lower the value of its shares[20]
  • a threat to reveal that the victim has not honoured a debt[21]
  • a threat to place the victim on a trade association's "stop-list"[22]
  • a threat to refrain from giving evidence in an action[23]

Professor Griew said that the word "menaces" could conceivably include:[13]

  • a threat of physical violence to the victim or another
  • a threat of prosecution
  • a threat to reveal actual criminal offending or sexual misbehaviour[24] or to publish false allegations of the same

David Ormerod said that it extends to a threat to damage property.[25]

Mode of trial

Blackmail is an indictable-only offence.

Sentence

A person convicted of blackmail is liable to imprisonment for any term not exceeding fourteen years.[26]

In R v Hadjou,[27] 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.

Similar offences[edit]

David Ormerod said that the offence created by section 40 of the Administration of Justice Act 1970 is related to blackmail.[28]

When committing the offence of blackmail, various other offences may also be carried out during the course of this criminal conduct:

  • the offence of robbery might be committed if the blackmailer puts or seeks to put a person in fear of being there and then subjected to force.
  • an offence under section 4 of the Public Order Act 1986 might be committed if the blackmailer intends to cause the person threatened to believe that immediate unlawful violence will be used against him or another or if the person threatened is likely to believe that such violence will be used [29]
  • a threat to destroy or damage property may also amount to an offence under section 2 of the Criminal Damage Act 1971.

A blackmailer who threatens to disclose the commission of an offence may also commit an offence under section 5 of the Criminal Law Act 1967 if he subsequently accepts consideration from the victim.

Civil liability[edit]

A blackmailer who threatens to publish a defamatory statement of and concerning an individual may be liable to be sued for either libel or slander if he subsequently carries out that threat.

History[edit]

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,[8] and those offences were commonly known as blackmail.[30] But the word blackmail did not appear anywhere in that Act.[8]

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."[31]

They are replaced by section 21 of the Theft Act 1968.

Northern Ireland[edit]

Offence of blackmail is created by section 20 of the Theft Act (Northern Ireland) 1969. It is derived from and identical to section 21 of the Theft Act 1968.

United States[edit]

The offense of blackmail is created by 18 U.S.C. § 873 which provides:

"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."[32]

Victoria, Australia[edit]

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).

Libertarian objections[edit]

Some libertarians consider that blackmail ought not be considered a crime.[33][34] They 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?"[35]

See also[edit]

Notes[edit]

  1. ^ a b c Merriam-Webster's dictionary of law. Merriam-Webster. 1996. pp. 634 pages. ISBN 978-0-87779-604-6. Retrieved 23 May 2011. 
  2. ^ The American Heritage® Dictionary of the English Language, 4th edition. Houghton Mifflin Harcourt Publishing Company. 2010. 
  3. ^ a b "Blackmail". Merriam-Webster. Retrieved 23 May 2011. 
  4. ^ a b c d West's encyclopedia of American law, Volume 2. West Pub. Co. 1998 (Digitized 22 Aug 2007). pp. 569 pages. ISBN 978-0-314-20155-3. Retrieved 23 May 2011. 
  5. ^ Sexual blackmail: a modern history. Harvard University Press. 2002. pp. 332 pages. ISBN 978-0-674-00924-0. 
  6. ^ Burton's Legal Thesaurus. McGraw-Hill Professional. 2006. pp. 1063 pages. ISBN 978-0-07-147262-3. Retrieved 23 May 2011. 
  7. ^ The encyclopedia of American law enforcement. Infobase Publishing. 2007. pp. 424 pages. ISBN 978-0-8160-6290-4. Retrieved 23 May 2011. 
  8. ^ a b c d Griew, Edward. The Theft Acts 1968 & 1978, Sweet & Maxwell: London. Fifth Edition, paperback, ISBN 0-421-35310-4, paragraph 12-01 at page 183
  9. ^ Frank Schmalleger, Daniel E. Hall, John J. Dolatowski (2009). Criminal Law Today (4th ed.). Prentice Hall. pp. 271–272. ISBN 0-13-504261-5. 
  10. ^ Maeve Maddox. "The Difference Between Extortion and Blackmail". Retrieved 18 Jul 2011. 
  11. ^ Charles Mckay, Dictionary of Lowland Scots, 1888 (archive.org)
  12. ^ [1937] AC 797, [1937] All ER 157, 26 Cr App R 51, HL
  13. ^ a b Griew, Edward. The Theft Acts 1968 & 1978, Sweet & Maxwell: London. Fifth Edition, paperback, ISBN 0-421-35310-4, paragraph 12–16 at page 189
  14. ^ [1937] AC 797 at 817
  15. ^ [1937] AC 797 at 806 to 807
  16. ^ R v Clear [1968] 1 QB 670, [1968] 2 WLR 122, 132 JP 103, 112 Sol Jo 67, [1968] 1 All ER 174, 52 Cr App R 58, CA
  17. ^ R v Clear [1968] 1 QB 670 at 679 to 680, 52 Cr App R 58 at 69
  18. ^ R v Lawrence and Pomroy (1971) 57 Cr App R 64, [1971] Crim LR 645, CA
  19. ^ (1971) 57 Cr App R 64 at 72, CA
  20. ^ R v Boyle and Merchant [1914] 2 KB 339, 83 LJKB 1801, 111 LT 638, 30 TLR 521, 78 JP 390, 58 Sol Jo 673, 10 Cr App R 180, 24 Cox 406
  21. ^ Norreys v Zefert [1939] 2 All ER 187, (1939) 83 Sol Jo 456
  22. ^ Thorne v Motor Trade Association [1937] AC 797, HL
  23. ^ R v Clear [1968] 1 QB 670
  24. ^ Presumably he intends this term to include adultery
  25. ^ Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. p. 943.
  26. ^ The Theft Act 1968, section 21(3)
  27. ^ 11 Cr App R (S) 29, [1989] Crim LR 390
  28. ^ Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. p. 950. (The author included this offence in a chapter titled "blackmail and related offences").
  29. ^ http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/blackmail_commercial/
  30. ^ Archbold Criminal Pleading, Evidence and Practice, 1999, paragraph 21-264 at page 1822
  31. ^ Hogan [1966] Crim LR 474
  32. ^ http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000873----000-notes.html here
  33. ^ Block, Walter, “Blackmail as a Victimless Crime,” with Robert McGee, Bracton Law Journal, Vol. 31, pp. 24–28 (1999)
  34. ^ Block, Walter, “Blackmailing for Mutual Good: A Reply to Russell Hardin,” Vermont Law Review, Vol. 24, No. 1, pp. 121–141 (1999)
  35. ^ Walter Block, N. Stephan Kinsella and Hans-Hermann Hoppe (Jul 2000), The Second Paradox of Blackmail 10 (3), Business Ethics Quarterly, pp. 593–622, JSTOR 3857894 

References[edit]

  • Baker, Dennis J., Glanville Williams Textbook of Criminal Law. Sweet & Maxwell: London. (2005) ISBN 978-0-414-04613-9.
  • Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
  • Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell: London. ISBN 978-0-421-19960-6
  • Ormerod, David. Smith and Hogan Criminal Law, LexisNexis: London. (2005) ISBN 978-0-406-97730-4
  • Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 978-0-406-89545-5

External links[edit]