Blackmail requires the satisfaction of five main elements. Firstly, that a demand was made by the accused. It does not matter exactly what the demand entailed, nor whether it was direct or implied. What is relevant is that the recipient of the demand reasonably understood that a demand was being made. The court will consider matters such as the accused’s demeanour and circumstances at the time of the demand.
Secondly, the demand must have been made with an intention for some form of gain for the accused, and simultaneously to cause some form of loss to another. The “gain” or “loss” in blackmail offences are construed as being gains and losses in money or property. Therefore, whilst the demand itself does not need to be for such things, the demand must have been made by the accused for the purposes of obtaining such a gain.
Thirdly, the demand must have been made with menaces. “Menaces” has been defined as “threats,” meaning that the demand involved some conduct that an ordinary person would construe as a threat. This is not limited to threats of violence, but rather it is a threat of any type of adverse action or prejudice for the victim.
Fourthly, there is a requirement in blackmail that the accused intended that the recipient feared the threat being realised, unless they were complicit with the terms of the demand. Ultimately this means their intention was to cause sufficient fear in the recipient of the demand, so that they would comply, and act in accordance with the terms.
Finally, the demand was unwarranted. A demand is unwarranted unless the impugned person believed there to be some reasonable reason for making the demand, and the use of threats was proper in the circumstances. The accused person has the burden of proving that a demand was not unwarranted, and this is reliant on their subjective beliefs at the time of making the demand. This is a high threshold, as there is a presumption that unless proven otherwise, a demand is unwarranted.
Again, blackmail is a serious offence, and is punishable by up to fifteen years imprisonment, for a convicted individual.