Introduction
The Offences Against the Person Act 1861 (OAPA 1861) is a significant piece of Victorian legislation that continues to form the basis for many non-fatal offences against the person in England and Wales. While well-known sections deal with assault and grievous bodily harm, the Act also contains a range of less common offences. This essay will focus on one such offence: compelling a person to execute a valuable security by threats, as criminalised by section 36.
This essay will explain the law under section 36 by breaking down its constituent elements. First, it will outline the actus reus of the offence, considering the types of conduct required, from the nature of the threats to the definition of a "valuable security". Second, it will discuss the implied mens rea for the offence. Finally, it will consider the relationship between section 36 and the more modern and widely used offence of blackmail under the Theft Act 1968, explaining why section 36 is now rarely prosecuted. The overall aim is to provide a clear description of this specific and somewhat archaic criminal offence.
The Offence under Section 36
Section 36 of the OAPA 1861 provides that:
> "Whosoever shall, with menaces or by force, demand any property, money, or other thing of any person, with intent to steal the same, shall be guilty of felony… And whosoever shall, by any unlawful violence to or restraint of, or threat of violence to or restraint of, the person of another, or by accusing or threatening to accuse any person of any treason, felony, or infamous crime, with intent thereby to extort or gain any property, money, security, or other thing from any person, shall be guilty of felony…"
For the purposes of clarity, this essay focuses on the second limb of the section, which deals with compelling the execution of a valuable security, an offence that is distinct from simple robbery or extortion. The section aims to protect individuals from being coerced into creating or altering legal documents that have monetary value. The offence carries a maximum sentence of life imprisonment, reflecting the seriousness with which the law views such coercive conduct.
The Actus Reus
The actus reus, or guilty act, of the offence under section 36 is complex and can be broken down into several parts. The prosecution must prove that the defendant (D) engaged in specific conduct which caused the victim (V) to perform a particular action related to a valuable security.
First, D’s conduct must consist of one of the methods specified in the statute. These are:
- Unlawful violence to or restraint of, or threat of violence to or restraint of, the person of another. This element is relatively straightforward. "Violence" can be understood by reference to the common law offences of assault and battery, meaning any application of unlawful force or an act causing another to apprehend immediate unlawful force (Herring, 2022). "Restraint" would likely cover acts amounting to false imprisonment. The threat of such conduct is also sufficient.
- Accusing or threatening to accuse any person of any treason, felony, or infamous crime. This part of the section is more dated. While "treason" and "felony" are clear categories of serious offences, the term "infamous crime" is archaic. Historically, this was interpreted to include specific offences that carried significant social stigma, such as buggery (sodomy). In R v Tomlinson [1895] 1 QB 706, the court considered the meaning of "infamous crime" in a similar context, confirming that it included accusations of homosexual offences. In modern law, this phrase is problematic and its scope is uncertain, though it would likely be interpreted to mean a crime that is particularly shameful or disgraceful (Smith, Hogan, and Ormerod, 2021).
Second, this conduct must induce or compel another person to act. This suggests a causal link is required; the victim must execute the security because of the defendant's threats or violence. The terms "induce or compel" indicate that the victim’s will has been overborne by the defendant's actions.
Third, the victim’s action must be to "execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security". This covers a wide range of activities related to legal and financial documents. For example, forcing someone to sign a cheque, destroy a will, or alter a share certificate would fall within this definition.
Finally, the subject matter of the offence must be a "valuable security". This term is not defined within the OAPA 1861 itself. However, a definition can be found in section 20(3) of the Theft Act 1968, which updated the older definition from the Larceny Act 1916. It includes documents that create, transfer, or release any right to property, or that serve as evidence of a right to property. Examples would include cheques, title deeds, promissory notes, and share certificates. The document must have recognisable value in a legal or financial sense.
The Mens Rea
The OAPA 1861 does not explicitly state the mens rea for the section 36 offence. Therefore, the mental element must be inferred from the wording of the statute and general common law principles. The offence requires a specific intent, as D must act with the purpose of achieving a particular outcome.
The key phrase is "with intent thereby to extort or gain". This indicates that the defendant must intend to use the specified threats or violence for the purpose of making the victim execute or alter the valuable security. It is not enough for the defendant to be merely reckless as to whether their actions will have this effect. The defendant must have the extortion of the valuable security as their goal. This makes the offence one of specific intent, meaning the defendant must have intended the prohibited consequence (to compel the victim to act in relation to the security). For example, if D threatens V with violence during an argument, and V, in a panic, signs over a valuable document that D had not even considered, the requisite mens rea would likely be absent. The threat must be made with the intention of causing that specific result.
Relationship with Blackmail
One of the main reasons section 36 of the OAPA 1861 is so rarely prosecuted today is the existence of the modern offence of blackmail, created by section 21 of the Theft Act 1968. Blackmail is a much broader offence and is generally easier for the prosecution to prove.
Section 21 of the Theft Act 1968 states that 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". There are several key differences between this and the section 36 offence.
First, the nature of the demand in blackmail is much wider. Blackmail covers a demand for anything of monetary value, whereas section 36 is limited to compelling the execution or alteration of a "valuable security". A demand for cash, for example, would be blackmail but would not fall under this specific part of section 36.
Second, the nature of the threat is also broader in blackmail. Section 36 lists very specific threats (violence, restraint, or accusation of an infamous crime). Blackmail, by contrast, uses the term "menaces". The courts have interpreted "menaces" very broadly to mean any threat or conduct of such a nature that it would "operate on the mind of a person of ordinary firmness" (R v Clear [1968] 1 QB 670), or even a person of particular timidity if the defendant was aware of this. This can include threats to reveal embarrassing information, damage property, or dismiss someone from their job—threats that would not be covered by section 36.
Third, blackmail includes the concept of an "unwarranted" demand. A demand with menaces is unwarranted unless the person making it believes they have reasonable grounds for making the demand, and that the use of menaces is a proper means of reinforcing the demand. Section 36 has no such element; the use of the specified threats to compel the execution of a security is criminal regardless of whether the defendant believes they are entitled to the property.
Due to the wider scope of the demand and the menaces, and its more modern language, the offence of blackmail under the Theft Act 1968 has effectively superseded the older offence under section 36 of the OAPA 1861. Prosecutors will almost always opt to charge blackmail where the facts allow, as it provides a clearer and more flexible route to conviction.
Conclusion
In summary, section 36 of the Offences Against the Person Act 1861 creates a serious offence aimed at preventing individuals from being coerced into creating, altering, or destroying valuable financial or legal documents. The actus reus requires the use of specific methods, namely violence, restraint, or accusations of serious crime, to compel a person to perform such an act. The mens rea is one of specific intent to achieve this outcome.
However, the offence is a product of its time, with archaic language such as "infamous crime" that sits awkwardly in a modern legal context. Its narrow scope, particularly when compared to the offence of blackmail under section 21 of the Theft Act 1968, has rendered it largely redundant. While it remains on the statute book as a theoretical possibility for prosecution, in practice, the modern law of blackmail provides a far more effective tool for prosecutors dealing with cases of extortion. Section 36 therefore serves as an interesting historical artefact within criminal law, but one with little contemporary practical relevance.
References
Herring, J. (2022) Criminal Law: Text, Cases, and Materials. 10th edn. Oxford: Oxford University Press.
Smith, J.C., Hogan, B. and Ormerod, D. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th edn. Oxford: Oxford University Press.
R v Clear [1968] 1 QB 670.
R v Tomlinson [1895] 1 QB 706.
Legislation
Offences Against the Person Act 1861.
Theft Act 1968.
