criminal-law blackmail mens-rea
Can you establish a &quot;guilty mind&quot; if the defendant is a victim of blackmail?
<p>For many criminal offences, from what I understand, you have to establish 2 aspects: actus reus (the act of crime), and mens rea (the guilty mind). The mens rea can be many things: from as direct as having the intention to commit a crime, to as nuance as being negligent.</p>
<p>However, I wonder what if someone is a victim of blackmail and is forced to commit a crime. The victim knew the law, knew that his/her action is in conflict with the law, hence you can argue that they had the intention. Would a criminal case be applicable?</p>

<p><strong>What if someone is a victim of blackmail and is forced to commit a crime?</strong></p>
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<p>The offence of blackmail is contrary to <a href="https://www.legislation.gov.uk/ukpga/1968/60/section/21?timeline=false" rel="nofollow noreferrer">section1</a>, Theft Act 1968 and is, succinctly, making <em>unwarranted demands with menaces</em> (i.e. threats).</p>
<p>Short answer:
Although there is an &quot;act&quot;, one criterion for <a href="https://en.m.wikipedia.org/wiki/Actus_reus" rel="nofollow noreferrer"><em>actus reus</em></a> is for it to be a voluntary act which, if the threats are sufficiently menacing, may not be so.</p>
<p>Long answer:
Depending on what was the blackmailed threat was, it is possible to claim the common law defence of <em>duress</em>. This, as per this article by the <a href="https://www.cps.gov.uk/legal-guidance/defences-duress-and-necessity" rel="nofollow noreferrer">Crown Prosecution Service</a>:</p>
<blockquote>
<p>is a defence at common law to all crimes except murder, attempted murder and treason involving the death of the sovereign see <a href="https://www.lawteacher.net/cases/r-v-gotts.php" rel="nofollow noreferrer">R v Gotts [1992] 2 AC 412</a>.</p>
</blockquote>
<p>To successfully apply this defence the threats have to be threats of death or grievous bodily harm toward the blackmailed person or a member of their immediate family or to a person for whose safety the they would reasonably regard himself as responsible. (There is case law on this, but I've yet to track down a suitable report or summary.)</p>
<p>Also, the threat has to be an effective threat at the time the offence was committed. See <a href="https://www.casemine.com/judgement/uk/5b46f2132c94e0775e7f1efd" rel="nofollow noreferrer">R v Hammond [2013] EWCA Crim 2709</a> where the Court of Appeal ruled that defence of duress was correctly withdrawn from the jury at trial because the evidence could not satisfy the requirement that the threat must be imminent or immediate and have been operating on the actions which constitute the criminal conduct.</p>
