The Offence of Blackmailing

The offence of blackmailing is defined in section 21 of the Theft Act 1968 (TA 1968) whereupon Peter has made a demand from Mark who owes him money with express menaces (Lawrence v Pomroy 1971 [2] ), stating that Marvin would be tortured or killed if Mark hasn’t got the money he owes Peter.

The actus reus of blackmailing is established once the demand was made. Menaces, however, is an ambiguous word which was not defined in the TA 1968 but was established in Thorne v Motor Trade Association 1937 [3] as “threats of any action detrimental to or unpleasant to the person addressed”. Should Peter’s reputation as being violent to those who crossed him be taken into consideration in establishing his offence of blackmailing towards Mark then? It is doubtful in which Mark has any knowledge of Peter’s reputation as being “formidable” does not constitute to being widely known as having such reputation. However, in relation to Garwood 1987 [4] , blackmail is committed as long as Peter “was aware of the likely effect of his actions on the victim”.

In addition, it is to be determined whether Peter’s demand was an unwarranted one. S1(a) of TA 1968 provides that a demand with menaces is unwarranted unless Peter has reasonable grounds in making the demand, as in the case here where Mark owes Peter money. Peter is legally entitled to ask for his money back. S1(b) of the TA 1968 further states that a demand is not unwarranted when the use of menaces is a proper means of reinforcing the demand. In Harrison 2001 [5] , the judge directed the jury that “the test is not what the defendant regarded as justified but what he believed to be proper…” The reasonableness of what Peter believed in his use of menaces for his demand is up for the jury to decide. If, however, it is proved that despite not knowing he’s not legally entitled to use menaces in enforcing his demand [6] , Peter with the requisite mens rea of realising that his use of menaces is socially and morally unacceptable, Peter would be convicted.

The question to be raised next is the relationship between Mark and Marvin. Would Mark suffer any losses if Marvin was tortured and killed? The requirement of the view to gain or intent to cause losses is a limiting factor on the offence of blackmail [7] . Section 34 of TA 1986 illustrates that “’gain’ and ‘loss’ are to be construed as extending only to gain or loss in money or other property… whether temporary or permanent.” Mark might not suffer any losses in light of Marvin’s safety being put at stake, especially if Mark is not legally responsible for Marvin, nor would he suffer loss too by paying his debt to Peter. A-G’s Reference (No 1 of 2001) [8] has approved that a person demanding for money undoubtedly owed to him has a view to gain. It is arguable that Peter did not intend to make a gain for himself nor did he intend to cause losses on Mark for demanding what he is legally entitled to.

With section 21(2) of the TA 1986 stating that the nature of act demanded is immaterial, Peter may still be held liable for blackmailing Mark even though his demand is based on a debt legally owed to him as in the process of demanding his debt, Peter has threatened Mark unlawfully.

Mark’s liability

By virtue of s 9(1)(a) of TA 1968, one is guilty of burglary if he enters any building or part of a building as a trespasser, with the intent to attempt or steal anything in the building or inflict grievous bodily harm on any person. Mark, by first entering through the ground floor window, suffices the actus reus of such act by making an ‘effective’ entry Angela’s house. The effectiveness of such entry is to be determined with the judges’ discretion. (Brown 1985 [9] ) In R v Ryan 1996 [10] , it is further stated that insertion of any part of the body into a building, no matter how small, is considered a substantial entry. The possibility of the defendant stealing or inflicting grievous bodily harm by being stuck is irrelevant.

In addition, to define trespass is where a person recklessly, intentionally or negligently enters a building belonging to another without a permission or legal right to do so [11] (Collins 1973 [12] ). It cannot be said that Mark has entered Angela’s house recklessly as he had made sufficient steps in making sure no one was home at the time of him attempting to burgle Angela’s house. To have Mark be held liable for the offence of burglary, it is crucial to have his mens rea for burglary proven too. Trespass is established once a sufficient entry is done along with the requisite ulterior intent of performing a burglary.

In relation to Peter’s blackmail, would Mark then be entitled to a defence of duress in his burglary on Angela’s house? Lord Bingham of Cornhill stated in Hasan 2005 [13] that “a person voluntarily associating with known criminals ought reasonably to have foreseen the risk of future coercion”. It cannot be claimed that Mark is a drug user for owing Peter, a drug dealer, money as it is not proven that Mark is one. Still, in a related case Heath 2000 [14] , it was held that by being indebted to a drug supplier, the defendant has put himself in a vulnerable position where debts are collected through violence. Duress was not given to the defendant in Heath [15] so neither should Mark too. Besides, Peter did not request Mark to burgle Angela’s house. The burglary was only a voluntary act done by Mark due to Peter’s blackmail which Mark could have dealt with by seeking help from the authorities instead.

Next, S 9(1)(b) of the TA 1968 shows the need for a proof of entry as a trespasser and subsequently the act of offences specified in s 9(2) of TA 1968 which are stealing, attempting to steal anything in the building or part of, inflicting grievous bodily harm or attempts to do so to any person therein. Here, Mark only had the ulterior intent to burgle whilst entering Angela’s home but before he could do so, he was attacked by Angela that in self defence, he pushed Angela down the stairs.

The issue to be considered thence is whether Mark had first formed the intention to cause grievous bodily harm on Angela as soon as Angela approached him. Mark’s intention is tough to be determined as it is stated that he had assumed that no one is at home in Angela’s house when he decided to burgle it. The appearance of Angela would have been an unforeseen circumstance to Mark. Besides, Angela had attacked Mark with a hammer. Had the hammer struck Mark’s head, it would be impossible for him to form the ulterior intent to cause grievous bodily harm as he would be acting under non insane automatism, and that is concussion (Sullivan [16] ).

However, Angela suffering from a fractured skull due to Mark’s pushing can have Mark charged under s20 of the Offences Against the Person Act 1861 (OAPA 1861) for inflicting grievous bodily harm on Angela. Grievous bodily harm is defined in DPP v Smith 1961 [17] as ‘really serious bodily harm’. The requisite mens rea to be charged under OAPA 1861 is whether Mark had foreseen the consequences ensued by Angela’s fall down the stairs before pushing her. Did Mark have a reasonable time to form the intent to hurt Angela in response to Angela’s attack? There is also no evidence as to whether the stairs were within such close distance that had Mark acted on impulse by pushing Angela, Angela fell from the stairs. Another point to be raised from this is that whether Mark had even seen the stairs and the harm Angela would sustain by falling from it before pushing Angela. It is stated in Owino 1996 [18] that the force used for self defence must be reasonable as objectively decided by the juries when put in circumstances the defendant subjectively believes them to be. Mark can only be granted the defence of self defence and be acquitted of OAPA 1861 only if he had pushed Angela without noticing the stairs and foreseeing the harm he could do to Angela by pushing her.

With insufficient evidences to prove Mark’s intent on causing grievous bodily harm on Angela, Mark could only be charged with attempted burglary under s 9(1)(a) of TA 1968 for entering a building to steal and having entered under s 9(1)(b), attempted to steal from the building.

Angela’s liability

Angela, by attacking Mark with a hammer, can be charged with either s18 of OAPA 1861 for causing grievous bodily harm to Mark with the intent to do so or s20 of OAPA 1861 for wounding or inflicting grievous bodily harm upon Mark with weapon.

It is understood that Angela had done so in order to protect her property but the force used should be reasonable and proportionate to the threat faced. The belief in which Angela has in light of the stresses she was put under as well as the time limit as to determine whether to use force or the degree of force used [19] is subjective as shown in Lord Morris’ view in Whyte 1987 [20] .

However, the reasonableness of the force Angela used cannot be determined on her own. S 3(1) of the Criminal Law Act 1967 states that a person may use force which is reasonable in the circumstances in the prevention of crime. It is that of an objective test where if the jury concludes that such force is excessive for a reasonable man put under the same situation as Angela, the use of force would be unlawful.

Could Angela further defend herself for claiming she was assaulted by Mark who broke into her house then? Angela could not as Mark had not done a positive act (Fagan v MPC 1968 [21] ) in causing Angela to apprehend immediate personal violence. Mark had merely broken into Angela’s house through the ground floor, in which no immediate violence was apprehended as Angela was upstairs at the time Mark trespasses Angela’s house. Angela might have sufficient time to either determine the mode of attack she would enforce on Mark or to seek the police’s attention by calling. Angela could have feared for her safety as well as her property as in the case of Revill v Newbery 1996 [22] but her attack was out of proportionate to the threat as she did not know whether Mark had any weapon with him, which Mark in fact entered her house without weapon.

Mark causing Angela a fractured skull in the end could prove that he did not suffer from any grievous bodily harm; thus acquitting Angela of s18 of OAPA 1861. Despite that, if Mark was found wounded from Angela’s hammer attack, Angela too, could be held liable under s20 of OAPA 1861.

Mark’s liability under voluntary intoxication

The problem of Dutch courage concerns with crimes of specific intent being carried out after one has voluntarily intoxicated oneself no matter by use of drugs or alcohol. Voluntary intoxication can negate one’s mens rea which is required for specific intent crime as one’s faculties of reasoning is said to be impaired in the course of being intoxicated. According to the findings of Bennett and Wright (1984), the pharmacological effects of alcohol gave burglars who had already decided to commit offence courage to act upon it after consuming the drugs [23] .

This is further emphasised in AG for Northern Ireland v Gallagher 1963 [24] where Lord Denning stated that “the wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do”. Mark, by voluntarily intoxicating himself, is considered to be reckless to his own condition [25] . In addition, his intention to burglar is set up even before he intoxicated himself with large quantity of cocaine. Hence, the course of committing the offence of burglary should begin right when the mens rea is set up, which is before Mark got himself intoxicated. The actus reus of burglary which ensued later would still make Mark liable for his offence as he merely did not have control over what he was doing but his intent was still intact. Mark using his intoxicated self to carry out his offence can be paralleled with the usage of an innocent agent in committing a crime. Mark can still be held liable for burglary.

Peter’s incitement and conspiracy between Peter and Mark

With reference to cl. 47 of the Draft Criminal Code, incitement is defined as a person inciting other to cause an act which would involve the commission of offence by another and he intends or believes that if other acts upon being incited would do so with the fault required for the offence.

Peter has fulfilled the actus reus of this offence by asking Mark to burgle Angela’s house. It is said that incitement can be committed by hostile threats [26] (Race Relations Board v Applin 1973 [27] ), as in Mark’s case where Peter had threatened to have Marvin tortured and killed. Next, Peter’s mens rea of incitement must be proven wherein first, there should be an intention to have the person incited to carry out a criminal conduct along with the consequences resulting from said conduct (DPP v Armstrong (Andrew) 2000 [28] ). Secondly, it must be proven that Peter knows of, or choose to ignore, all the circumstances of the conduct incited which would make the conduct a criminal offence.

For inciting Mark to burgle Angela’s house, Peter can be charged under the Serious Crime Act 2007, s44 whereupon he intentionally encourages an offence knowing that he is capable of doing so and s45 whereupon he encourages an offence believing it will be committed.

Moving on, it should be established that whether there’s a conspiracy between Peter and Mark when Mark obliges with what he was incited to do by Peter. Conspiracy is the meeting of two or more persons’ minds in carrying out an offence (R v Mulcahy 1868 [29] ). Aside from proving the agreement between two or more parties, intention to carry out an unlawful act must be proven too. There is no conspiracy if only one of the parties to the agreement has the relevant intention [30] . Peter forces Mark to burgle Angela’s house with the intention of stealing her money but Mark could have done it purely on the basis that he was acting under duress as had he not done it and obtaining the money he owes Peter, Marvin would be tortured and killed. With that, Mark could only be held liable for burglary and not conspiracy with Peter.