Revise Blackmail as defined in s21 Theft Act 1968 for Cambridge 9084 (2.2.4)

The actus reus of blackmail begins with an 'unwarranted demand'. A demand can be express or implied through words or conduct, as established in R v Collister and Warhurst (1955), where a gesture was sufficient. The core of the actus reus lies in the demand being 'unwarranted'. Section 21(1) provides a two-part subjective test for this. A demand is unwarranted unless the defendant (D) believes both: (a) that they have reasonable grounds for making the demand; AND (b) that the use of menaces is a proper means of reinforcing the demand. The prosecution must prove that D lacked an honest belief in at least one of these two limbs. The belief does not need to be reasonable, merely genuinely held by the defendant.

The second element of the actus reus is that the demand is made 'with menaces'. The term 'menaces' is not defined in the Act but has been interpreted broadly by the courts to mean a serious threat or pressure that would not influence a person of normal stability. The leading case, Thorne v Motor Trade Association (1937), established an objective test: would the threat affect the mind of an ordinary person of normal stability and courage? However, this is supplemented by a subjective element from R v Garwood (1987). If the defendant is aware of the victim's particular timidity, the test becomes whether the threat was capable of affecting that specific victim. Therefore, a threat that might seem trivial to most can still constitute menaces if targeted at a known timid individual.

The mens rea for blackmail has two components. Firstly, the demand must be made with a 'view to gain for himself or another' or with 'intent to cause loss to another'. 'Gain' and 'loss' are defined in s34(2)(a) of the Theft Act 1968 as being limited to gain or loss in money or other property. This means demanding non-property items, such as a sexual favour or a medical drug as in R v Bevans (1988), does not satisfy this element. Secondly, the defendant must intend to make the demand with menaces. It is important to note that the gain or loss does not need to actually occur; the defendant must simply have it 'in view' when they make the demand.

A key area for analysis is the crossover between actus reus and mens rea in the 'unwarranted' element. Although part of the actus reus, whether a demand is unwarranted is determined entirely by the defendant's state of mind. The prosecution must prove a negative: that the defendant did not honestly believe they had reasonable grounds for the demand, or that they did not honestly believe using menaces was a proper method. The case of R v Harvey (1981) illustrates this. The defendant's belief that his actions (threatening to maim and rape) were a proper way to get his £20,000 back was not a belief the jury could accept as genuine. The defendant's belief must be honestly held, but its credibility will be assessed by the jury.