THREATS TO KILL DEFENCES


Threats to Kill - An outline

A throwaway comment? Or meant seriously? This is often the issue to be decided when a person is accused of committing the offence of making a threat to kill. This is an offence which the police take very seriously because of the effect it can have on the person receiving the threat.

It can, however, be a difficult offence for the police or the prosecution to prove. It is not easy to prove what somebody's intentions were when they said a certain thing and involves looking at the situation and the background. This article outlines this offence, threats to kill defences which may be available, and also looks at factors taken into account in sentencing.

A female police officer standing at a gate

Threats to Kill: When is this an offence?

A threat to kill somebody can be made in varying ways and varying contexts. It would clearly not be an offence, for example, to say in the context of a joke "Oh I could kill you". Or to say "I'll kill him if he misses this penalty" while supporting a football team. So when does threatening to kill somebody become an offence? The key requirement is that the person making the threat must intend that the person hearing the threat believes that the threat is real. This offence is an either-way offence which means that it can be dealt with by either the magistrates' court or the crown court.

Threats to Kill Defences

There are various ways in which threats to kill defences can be advanced. Firstly, the defence can insist that the prosecution are "put to proof". This means that the prosecution must prove every part of the offence. This is not always easily done. Threats of this type might, for example, be made verbally and so the case can become one of one person's word against another. Even if the prosecution can prove that a threat to kill was made, the prosecution must show that the person's intention was that the threat would be believed.

A second of the threats to kill defences is that of looking at whether or not there was a lawful excuse for the threat being made. This is a defence which covers certain situations such as where a threat is made in self-defence or to try and prevent a different criminal offence being committed. What is reasonable will depend upon the circumstances of the case.

Sentencing

The maximum sentence for making a threat to kill is 10 years in jail although such sentences are rare. A sentencing guideline exists and a Court must follow this guideline unless there are exceptional circumstances.

The guidelines make clear that various factors are to be considered when deciding the sentence including:

(i) If there has been significant planning;

(ii) If a visible weapon was used when making the threat;

(iii) If children were present;

(iv) If there has been a previous history or campaign of violence towards the victim

(v) The impact upon the victim;

(vi) The length of time over which the offence was committed

A determined threat to kill somebody who the defendant has previously been convicted of committing offences against and where there is large negative impact on the victim will attract a larger sentence than a throwaway threat, said in the heat of the moment, with little impact upon the victim.

A threat of general violence against another person, as opposed to a specific threat to kill, is considered a much lesser offence. Such threats would be charged differently and can lead to confusion on the part of the prosecution which means people are incorrectly charged - a method of advancing threats to kill defences can be to negotiate alternative charges with the prosecution. If you are accused of this offence it is advisable to immediately seek some initial free legal advice to discuss your options.

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