The offence of threats to kill may sound straightforward. However, there are elements to consider when attempting to prove guilt. He we explain all areas of the UK law on threats to kill to assist your understanding of what it is and what the prosecution has to prove.
The Offence of Making Threats to Kill
Threats to kill is covered by s.16 of the Offences Against the Person Act (OAPA) 1861. It is defined as when “a person, who without lawful excuse makes to another a threat, intending that, that other would fear it would be carried out, to kill that other or a third person”.
Elements of the Offence
There are two aspects to the offence. The mens rea (the guilty mind) and the actus reus (the guilty act).
- Makes a threat to another person to kill them or another. (actus reus)
- Intending that person to fear the threat would be carried out. (mens rea)
Both elements must be proven by the prosecution for the offence to be made out.
It should be noted that the alleged offender does not actually have to have the intention to kill, but there has to be an intent that the person to whom the threat has been issued would believe that it would be carried out.
What is the Maximum Penalty for Making Threats to Kill?
Threats to kill is a triable either-way which means it can be heard at either the Magistrates Court or the Crown Court depending on the seriousness of the offence. It is for the Magistrates to determine whether the case is too serious for them to deal with it as their sentencing powers are restricted to a maximum of 6 months imprisonment for a single offence. In the Crown Court, the maximum sentence that can be imposed for making a threat to kill is 10 years in prison.
How Does the Court Determine the Sentence for Making a Threat to Kill?
The sentencing Council Guidelines determine that the range of the sentence is from a community order up to 7 years imprisonment.
First the court would need to determine the culpability of the offender. ‘A’ class offences with higher culpability include offences where for example the threat is made in front of children, there is significant violence, a weapon was visible or there was sophistication or planning. Class C (lower culpability offences) are where the offender’s responsibility is reduced by a mental disorder or learning disability or where the offence was limited in scope and duration. Class B (medium culpability offences) fall in between the two categories.
Next, the court would need to assess the harm that the offending had caused. The more serious category ‘1’ would involve very serious distress, psychological harm or had a considerable practical impact on the victim. The lower category ‘3’ harm offences are where there was little or no distress to the victim.
A level ‘1’ class ‘A’ offence has a starting point of 4 years imprisonment with a range of 2-7 years. Whereas a level 3 class C offence has a starting point of medium range community order with a range of low – high level community order.
Making Threats to Kill: Legal Defences
The threat to kill must be made ‘without lawful excuse’ and there would be a legal defence if the threat was made lawfully. For example, a threat made in self-defence to prevent an assault, or a crime could be a lawful excuse, provided that it was reasonable in the circumstances. It is for the court to determine whether it was reasonable.
Being accused of making a threat to kill can be a worrying situation. It is crucial that you seek advice from a solicitor who has experience dealing with these types of criminal offences. They will be able to advise and assist you fully on
- Whether the prosecution can prove the case
- Whether you have a defence
- The sentencing guidelines and what mitigation might be put forward in order to lower the class and category of the offence
At Burton Copeland, our criminal defence solicitors work around the clock to support those facing investigations and prosecutions. To discuss a threat to kill charge, please call our Manchester office on 01618279500 or contact us here