Blackmail part 3
Once you have a demand with menaces then the next question is whether this is an unwarranted demand. Section 21 (1) (a) and (b) of the Theft Act 1968 deal with this. This is one of those provisions where once a demand with menaces is demonstrated it is unwarranted unless the defendant brings himself within the relevant paragraphs. It is therefore for the defence to raise the point. However it is not one of those provisions where the defence have to prove it. If the defence raise the question of whether the demand is warranted, (in other words showing that he has a belief that he has reasonable grounds to making the demand under subparagraph (a) and under subparagraph (a) the use of the menaces is a proper means of reinforcing the demand) then it is for the prosecution to prove in the usual way that those assertions are incorrect.
It follows from the fact that the defendant has to satisfy both paragraphs that once the demand with menaces is made he will be guilty either if he has no belief in reasonable grounds for making the demand or because he has no belief that the use of the menaces is a proper means for pursuing the demand. That means that just because you think you are entitled to the money you can still be guilty of blackmail. Criminal conduct could hardly be likely to be regarded by anyone as a proper means of pursuing a demand. Thus if someone owes you a sum of money, and you say that unless they pay you you will kill them, there would be reasonable grounds for the demand (belief that they owe you the money) but you could hardly believe that that was a proper way of pursuing the demand (or expected a jury to believe you when you said that it was) so it would still be blackmail.
Of course in deciding what is warranted each case will turn on its own facts. Whilst what a reasonable person would believe will be an important factor to consider, the test is what the person making the demand believed. There will thus be consideration both of the belief in the demand and the belief in the propriety of the threat, and whilst in many cases the answer to what was considered as warranted would be pretty straightforward it is impossible to lay down any hard and fast rule.
The final requirement is that there is a view to gain for himself or another or an intent to cause loss to another. This refers to money or other property. Gain means getting what you have not got. This reinforces the point that merely asking for something you believe you are entitled to can constitute blackmail. You may think that a debt is due to you, but if you have not got the money then it can constitute blackmail to use unwarranted menaces in order to get it.
As we saw with the comments of Judge Gilbart QC in part one of this series, the courts treat blackmail extremely seriously and usually impose stiff penalties. The former Lord Chief Justice Lord Lane described blackmail as a particularly vicious crime because it attempted the "murder of the soul". It is unsurprising in that context that it is dealt with severely.