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In English Law, extortion and blackmail are described under section 21 Theft Act 1968, as an "unwarranted demand with menaces", There's criteria and definitions, but they don't seem to matter much here. For this question the main definitions are from case law, which are broad: with roughly means backed up by and menaces roughly covers any threat to take/avoid some course of action which might coerce an unwilling person.

It is the use of a "menace" which creates the crime, not the nature or validity of the demand. Even if the threatened action is valid by itself, the element of backing up or enforcing the demand with a threat to do some action, so that an unwilling person will feel coerced to comply, creates an offence under this section. According to Wikipedia, "menaces" have included, or could potentially include, backing up a demand by stating one will otherwise:

  • reveal a failure to honour a debt, a criminal record, or other adverse fact
  • place a person/company on a blacklist
  • testify or not testify in some matter
  • prosecute/report a crime or refrain from doing so

Suppose a person is in a dispute. Taking and avoiding action are both legally permitted. But as a result of this section, it's hard to see what ways remain, in English law, to state the possibility of legal action (or its avoidance), that will avoid risk of prosecution oneself under s.21? To make this more concrete, here are some plausible examples from any fictional dispute, where the police decline to get involved. The injured party may wish to say something like:

  • Repay me/put right tort, or civil litigation: "If you don't return what you took, or compensate me, you will be sued for damages"
  • Repay me/put right crime, or criminal prosecution "If you don't return what you took, or compensate me, you will be prosecuted for theft"
  • Put right statute-barred loss, or my only available route to recompense, which I don't want to be forced to take, is via proceeds of crime/criminal compensation "The 6 year period for damages has expired, we have two choices, either you reimburse me, or my only other way to get repaid for your crime is to prosecute you and apply for confiscation of proceeds of crime, and/or other criminal compensation."
  • Please put this right privately, as other handling would involve courts and be harmful to your future as a student, which neither of us want "I don't want to see a promising student in jail, but unless you repay me I have no choice but to see you prosecuted"
  • Please mediate/settle, so civil case which neither of us will like, can be dropped "I will continue my claim unless you repay what your graffiti cost to deal with" (and is this legally any different from "I will drop my claim if you repay"?)
  • Please suggest settlement otherwise civil and criminal proceedings "I enclose a draft civil case and a draft criminal laying of information. I will file both within 14 days unless I receive a realistic settlement proposal."
  • Job negotiation "Accept this pay cut or you won't have any income at all, because you'll be given notice"

In each of these, a reasonable offer/statement of one party's perspective is being stated, with the aim of avoiding legal entanglement.

It's quite a significant and real concern, because the Courts positively approve of attempts to settle before claim or before hearing, a dialogue that implicitly says "Agree to pay me this amount that I'd consider acceptable, now, or else or you will be sued / I will continue the case and you will face more costs".

It's more serious if the action causing loss or damage was also criminal in nature, and the victim mainly wishes to settle the loss/damage, but has the tempting parallel option of criminal prosecution for the wrong they feel, and needs to avoid the appearance of holding a criminal case over someone's head as a menace.

The only other option is to commence civil/criminal proceedings in any of these cases, with no prior discussion/warning, to avoid the possibility, but that may not be what they really wish for.

My question:

Given the breadth of this section, what form of words can the people thinking of statements like those above, use, to ensure they will not be held to have made a "demand" with a "menace"?

Note: Assume any CPS/prosecution-related/procedural issues can be ignored - we don't have to worry if any claim or criminal prosecution would be private or public, accepted or not, or capable/incapable of being withdrawn. The mere possibility of a legal consequence might be enough in English law to create a menace and create the issue in the question.

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It is the use of a "menace" which creates the crime, not the nature or validity of the demand.

That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand".

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.

https://www.legislation.gov.uk/ukpga/1968/60/section/21

For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good.

It might be sensible to moderate one's language, e.g.

"If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs."

vs.

"If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine."

But the language doesn't make the demand unwarranted.

  • Do you know of a definitive case/source for the correct construction - whether it's "an ((unwarranted demand) with menaces)", where it's the demand only that must be unwarranted and the further presence of adding any menace to an unwarranted demand creates an offence, or "an (unwarranted (demand with menaces))", where any demand (valid or not) made in conjunction with any menace (valid or not) is an offence if its combination is unwarranted? As we seem to have used different understandings/constructions on this clause. – Stilez Jun 13 '18 at 15:07
  • Also on your construction, which if any of those example statements would potentially form a criminal offence, assuming the demand itself was one that a reasonable person might legitimately make, and the threat was added to procure/encourage its satisfaction and/or to disclose the intended action upon nonsatisfaction, and wasn't just a "trumped up" assertion of being owed something? Or would they all be OK if the demand itself was reasonable? For example, is it an offence to use a "menace" to make someone to repay a legitimate debt or remedy a clear tortious loss they refuse to settle? – Stilez Jun 13 '18 at 15:19
  • @Stilez I don’t have time to search for cases at the moment – have you tried searching BAILII? – but by defining the circumstances in which ‘a demand with menaces is unwarranted’ the question of warrant seems clearly to apply to the combination. So, it would probably be illegal to force settlement of a legitimate claim by threatening to publish embarrassing private photos, for example (but note the subjective nature of the definition of unwarranted). – sjy Jun 13 '18 at 21:56
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    @Stilez, this law seems unambiguous, let's break it down: the two main elements are the (gain or loss) and the (unwarranted demand with menaces). The CPS website isn't helpful on this (which is unusual) but try uk.practicallaw.thomsonreuters.com/w-007-7415. The prosecution must persuade the court to the criminal standard that the defendant did not have reasonable grounds for the demand and that the use of menaces was improper. "Not every demand reinforced by improper menaces amounts to blackmail" - that doesn't preclude the behaviour from being a different offence, of course. – Lag Jun 14 '18 at 7:33

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