T Blackmail
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^ Jump up to: a b c Merriam-Webster's dictionary of law . Merriam-Webster. 1996. p. 53 . ISBN 978-0-87779-604-6 . Retrieved 23 May 2011 .
^ The American Heritage® Dictionary of the English Language, 4th edition . Houghton Mifflin Harcourt Publishing Company. 2010.
^ Jump up to: a b "Blackmail" . Merriam-Webster . Retrieved 23 May 2011 .
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^ Jump up to: a b c Griew, Edward. The Theft Acts 1968 & 1978 , Sweet & Maxwell: London. Fifth Edition, paperback, ISBN 0-421-35310-4 , paragraph 12-01 at page 183
^ "Dictionary of the Scots Language:: SND :: black mail" .
^ Jump up to: a b Maeve Maddox. "The Difference Between Extortion and Blackmail" . Retrieved 18 July 2011 .
^ Charles Mackay, Dictionary of Lowland Scots , 1888 (archive.org)
^ "CRIMES ACT 1958 - SECT 87 Blackmail" . austlii.edu.au.
^ "CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 172" .
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^ [1937] AC 797, [1937] All ER 157, 26 Cr App R 51, HL
^ Jump up to: 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
^ [1937] AC 797 at 817
^ [1937] AC 797 at 806 to 807
^ 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
^ R v Clear [1968] 1 QB 670 at 679 to 680, 52 Cr App R 58 at 69
^ "Billy Joe (Aka William) Temple, R v [2008] EWCA Crim 2511 (16 October 2008)" . bailii.org .
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^ (1971) 57 Cr App R 64 at 72, CA
^ Jump up to: a b joe.ury. "Lambert, R. v [2009] EWCA Crim 2860 (15 October 2009)" . bailii.org .
^ 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
^ Norreys v Zefert [1939] 2 All ER 187, (1939) 83 Sol Jo 456
^ Thorne v Motor Trade Association [1937] AC 797, HL
^ R v Clear [1968] 1 QB 670
^ Taylor, Lynn. "Ashiq, R v [2015] EWCA Crim 1617 (30 July 2015)" . bailii.org .
^ Presumably he intends this term to include adultery
^ Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. p. 943.
^ The Theft Act 1968 , section 21(3)
^ 11 Cr App R (S) 29, [1989] Crim LR 390
^ "Blackmail Commercial: Sentencing Manual: Legal Guidance: The Crown Prosecution Service" . cps.gov.uk . Archived from the original on 1 December 2016 . Retrieved 18 July 2012 .
^ 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").
^ "Defamation Act 2013" . legislation.gov.uk .
^ "Senior Courts Act 1981" . legislation.gov.uk .
^ Jump up to: a b c d e f g Winder, W. H. D. (1 July 1941). "The Development of Blackmail" . The Modern Law Review . 5 (1): 21–50. doi : 10.1111/j.1468-2230.1941.tb00878.x .
^ See the preamble to the Black Act for details
^ Archbold Criminal Pleading, Evidence and Practice , 1999, paragraph 21-264 at page 1822
^ Hogan [1966] Crim LR 474
^ "Theft Act (Northern Ireland) 1969" . legislation.gov.uk .
^ The Scottish Beat Officer's Companion (6th ed.). Jane's Police Review. 29 June 2010. p. 85. ISBN 978-07106-2928-9 .
^ Jury Manual (2018 ed.). Parliament House, Edinburgh: Judicial Institute for Scotland. 9 November 2018. p. 46.1 . Retrieved 25 January 2019 .
^ "18 U.S. Code § 873 - Blackmail" . LII / Legal Information Institute . Retrieved 18 September 2016 .
^ Unternehmensberatung, ADVOKAT. "§ 144 StGB (Strafgesetzbuch), Erpressung - JUSLINE Österreich" . jusline.at .
^ "GERMAN CRIMINAL CODE" . gesetze-im-internet.de .
^ "Code pénal - Article 312-10 | Legifrance" .
^ Block, Walter, " Blackmail as a Victimless Crime ," with Robert McGee, Bracton Law Journal, Vol. 31, pp. 24–28 (1999)
^ Block, Walter, " Blackmailing for Mutual Good: A Reply to Russell Hardin ," Vermont Law Review, Vol. 24, No. 1, pp. 121–141 (1999)
^ Walter Block, N. Stephan Kinsella and Hans-Hermann Hoppe (July 2000), "The Second Paradox of Blackmail", Business Ethics Quarterly , 10 (3): 593–622, doi : 10.2307/3857894 , JSTOR 3857894 , S2CID 5684396
^ Russell Christopher: Meta-Blackmail 94 Geo. L. J. 739 (2006). Page 744, reference 25.
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Blackmail is an act of coercion using the threat of revealing or publicizing either substantially true or false information about a person or people unless certain demands are met. It is often damaging information, and may be revealed to family members or associates rather than to the general public. It may involve using threats of physical, mental or emotional harm, or of criminal prosecution, against the victim or someone close to the victim. [1] [2] It is normally carried out for personal gain, most commonly of position, money, or property. [1] [3] [4] [5] It is also used, sometimes by state agencies, to exert influence; this was a common Soviet practice, so much so that the term " kompromat ", transliterated from Russian, is often used for compromising material used to exert control.
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. [6] Blackmail is the use of threat 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. [7]
In many jurisdictions, blackmail is a statutory offense, often criminal, carrying punitive sanctions for convicted perpetrators. Blackmail is the name of a statutory offense in the United States, England and Wales, and Australia, [8] and has been used as a convenient way of referring to certain other offenses, but was not a term used in English law until 1968. [9]
Blackmail was originally a term from the Scottish Borders meaning payments rendered in exchange for protection from thieves and marauders. [3] [7] [10] The "mail" part of blackmail derives from Middle English male meaning "rent or tribute". [11] This tribute (male or reditus ) was paid in goods or labour ("nigri"); hence reditus nigri , or "blackmail". Alternatively, it may be derived from two Scottish Gaelic words blathaich - to protect; and mal - tribute or payment. [ citation needed ]
The word blackmail 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". [11] 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). An alternative version is that rents in the Scottish Borders were often paid in produce of the land, called "greenmail" ('green rent'), suggesting "blackmail" as a counterpart paid perforce to the reivers. Alternatively, Mackay derives it from two Scottish Gaelic words blathaich pronounced (the th silent) bla-ich (to protect) and mal (tribute, payment), cf. buttock mail . He notes that the practice was common in the Scottish Highlands as well as the Borders . [12] In the Irish language , the term cíos dubh , meaning "black-rent", has also been employed.
The offence of blackmail is created by section 87 [13] 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).
The offence of blackmail is created by Part 6B Section 172 [14] of the Criminal Law Consolidation Act 1935.
Section 172 provides that a person who menaces another intending to get the other to submit to a demand is guilty of blackmail, and may be subject to imprisonment (a maximum of 15 years for a basic offence or a maximum of 20 years for an aggravated offence).
The offence created by section 17(1) [15] 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.
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:
(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.
The Theft Act 1968 section 21 contains the present-day definition of blackmail in English law. It requires four elements:
Therefore, the requirement for this offence may be paraphrased as:
The law considers a "demand with menaces" to always be "unwarranted" (unjustified), unless the perpetrator actually believed that his/her demand had reasonable grounds, and also actually believed that the menace was a proper way to reinforce that demand. These tests relate to the actual belief of the perpetrator, not the belief of an ordinary or reasonable person. Therefore, tests related to what a "reasonable" person might think, and tests of dishonesty, are not often relevant - the matter hinges upon the actual and honest beliefs and knowledge of the perpetrator him/herself. The wording of the Act means that there is a presumption in law that demands and/or menaces are likely to be deemed unwarranted, unless the perpetrator shows evidence that they were believed not to be. [16] However, once a perpetrator has defended him/herself by giving evidence related to the demand and menace both being believed warranted, the prosecution must overturn one or both of these claims to prove their case. The usual rule is that a criminal act, or a belief not truly held, can never be "warranted", although according to some authors, a "grey area" may (rarely) exist where a very minor illegality may be honestly believed to be warranted. [17]
Additionally, a statement that would not usually coerce or pressure someone may still be a "menace", if the perpetrator knew, believed, or expected that their specific victim would feel coerced or pressured by it. The law does not require a demand or menace to be received by the victim, merely that they are made, therefore it is irrelevant whether the victim was affected or not, or even unaware of them (perhaps because they had not yet been received, read or listened to). Because the criteria include an intention to "cause" some kind of gain or loss, a demand for sex (for example) would not be considered blackmail, so threats with these and other demands are dealt with under a variety of other criminal laws. However even in these cases, a gain or loss of some kind can often be found, and then this law can then be applied.
In some cases, the perpetrator him/herself may claim to have acted under duress . The courts have ruled that a person who places themselves in a situation where they may be coerced to make a demand with menaces against a third party is likely, foreseeable, or probable, may not be able to rely on coercion as a defence because they voluntarily placed themselves in such a situation. This issue has arisen, for example, in gang-related violence . [18] [19] [20] [21]
The word "menaces" was adopted from sections 29(1)(i) and 30 of the Larceny Act 1916 . Section 29(1)(i) made it a 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 (1937) [22] is a leading case on the meaning of the word "menaces", decided under section 29(1)(i) of the Larceny Act 1916 . [23] The issue to be decided was whether the statement by a powerful trade association that a person found guilty of breaking their rules on price fixing would be " blacklisted ", but could avoid this fate by paying a fine, was a "menace". It was held that the trade body had both the right to put persons on their blacklist and also the right to offer a fine as an alternative to being put on a blacklist, therefore neither of the demand or the menace were ruled to be "unwarranted". (The Court noted that a plainly unreasonable fine could potentially be viewed as unwarranted.) 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. [24]
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. [25]
R v Clear [26] was decided under section 30 of the Larceny Act 1916 . Sellers LJ said: [27]
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 regard to the importance of the perpetrator's understanding of impact, in R. v Billy Joe (William) Temple (2008), the Court of Appeal reduced the perpetrator's original sentence because it did not take into account, among other things, the appellant's lack of appreciation of the extreme nature of the impact of the menace to which he had been a party. [28]
In R v Lawrence and Pomroy, [29] 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 whom it is addressed, or where the converse may be true, it is no doubt necessary to spell out the meaning of the word. [30]
In R v Lambert (2009), it was held that:
[A] demand does not have to be made in terms of a demand or requirement or obligation. It can be couched in terms which are by no means aggressive or forceful. Indeed, the more suave and gentle the request, the more sinister in the circumstances it might be. [31]
The word "menaces" has been held to include the following:
Professor Griew said that the word "menaces" could conceivably include: [23]
David Ormerod said that it extends to a threat to damage property. [38]
It should be remembered that the offence requires either an unwarranted menace, or an unwarranted demand, or both; not all menaces nor all demands are "unwarranted", and the belief of the perpetrator is the determining factor. If both the demand and the menace are each believed to be proper and reasonable to make, in law, then - depending upon the details of the case - the kinds of actions listed above may no longer be criminal offences. However, as stated above, a criminal demand or menace can never believed to be "warranted", and actual knowledge of the victim and their state of mind or expected response may change a warranted matter into an unwarranted one.
Blackmail is an indictable-only offence . A person convicted of blackmail is liable to imprisonment for any term not exceeding fourteen years. [39]
In R v Hadjou (1989), [40] Lord Lane CJ said that black
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