The independent Sentencing Council has published new guidelines for offenders convicted of blackmail[1], which will take effect from 1 April 2025. Previously there was no offence-specific sentencing guideline. The Court of Appeal had said that a sentencing judge was entitled to take the Sentencing Council guideline for fraud into account when determining culpability, albeit blackmail was more serious than fraud alone in respect of a given amount of money[2]. Sentencing case law on blackmail emphasised the relationship between the amount of money demanded and the victim’s means, the nature of the menaces and the psychological harm done or intended to be done[3].
Blackmail Culpability and Harm Factors
Following the format of other sentencing guidelines, the guidelines for blackmail list the factors relevant for measuring both culpability and harm.
For assessing culpability, the threat of violence identifies medium culpability, with the actual use of violence placing a case in the high culpability category. The deliberate targeting of a particularly vulnerable victim and/or their family is another factor that will push a blackmail case into the highest level of culpability.
Similarly with harm, the factors that separate a low category 3 case to a high category 1 case focus on the impact on the victim. Category 3 will be for those cases where the offending has a limited effect. In contrast, the more serious the distress or psychological harm that is caused to the victim and/or others, the higher category of harm in which the case is to be placed. The categories also focus on what level of loss would be experienced by the victim; not in just financial terms, but in terms of what that loss would mean to the individual victim. This recognises that the harm to the victim can vary greatly from case to case. Category 1 harm is also indicated by the additional factor of widespread public impact of the offence, recognising that the harm caused in extreme cases of blackmail usually transcends those directly involved and has wider negative repercussions.
Blackmail Aggravating and Mitigating Factors
Following the assessment of culpability and harm, the guidelines go on to list various aggravating and mitigating factors that may feature in cases of blackmail.
In addition to the statutory aggravating factors, those set out in the guidelines include:
- Victim was particularly vulnerable.
- Property demanded or obtained is intimate/sexual images.
- Conduct intended to maximise distress and/or humiliation.
- Abuse of trust or dominant position or abuse of confidential information.
- Other(s) put at risk of harm by the offending.
- Offence committed in a domestic abuse context.
Numerous mitigating factors are also listed, for example pregnancy, difficult and/or deprived background or personal circumstances, mental disorder or learning disability, positive character and/or exemplary conduct. Each of the mitigating factors have further information regarding their application.
The New Sentencing Guidelines can be found on the Sentencing Council’s website – Blackmail – Effective from 1 April 2025 – Sentencing
Clear Focus on Victim Impact
Until now, only the Sentencing Council’s general guidelines, and case law, have applied to cases of blackmail. The offence can sometimes be viewed as a financial crime, as indeed for an offence of blackmail to have been committed there must be a demand of money or other property. However, the traumatic and lasting impact that blackmail can have on its victims is often not fully acknowledged. The offence of blackmail also cuts across all sections of society, meaning that an objective assessment of the offence factors, such as financial value of the potential or actual loss, is not always appropriate. This is something that the new guidelines attempt to address.
Given the various forms that blackmail can take, the new guidelines are a welcomed addition as they will assist the courts both in applying a consistent approach to cases as well as in passing sentences that properly reflect the lasting impact that the offending has had on the victim.
[1] Similarly new guidelines for both kidnapping and false imprisonment have also been created and take effect from 1 April 2025.
[2] R v. Hutchinson [2018] EWCA Crim 631
[3] R v. Ford [2015] EWCA Crim 561 and R v. Atkinson [2018] EWCA Crim 746
