Introduction

Clients of mine are sometimes surprised to find out that making a threat to kill is a serious criminal offence under section 16 of the Offences Against the Person Act 1861. The circumstances of such offences can very considerably and I have found that while some people may consider this to be ‘only words’ or ‘an empty threat’, the law takes such statements very seriously, particularly when they cause genuine fear.

In this article I will seek to explain what constitutes a "threat to kill," the legal consequences, defences, and key case law. The law in this area is very complicated and this article is designed to be a rough and ready guide for the layperson, if you are in trouble with the authorities in respect of this offence it is highly advisable to seek specialist legal advice.

What Is a Threat to Kill?

The Legal Definition is under section 16 of the Offences Against the Person Act 1861, a person commits an offence if they:

- Make a threat to another person,

- Intend that the person threatened fears the threat will be carried out, and

- Threaten to kill either the person directly or a third party.

Elements of the Offence of Threats to Kill

To secure a conviction, the prosecution must prove all of the elements of the offence to the requisite standard, that being beyond reasonable doubt. So, the prosecution must show that:

1. Threat Was Made- The threat can be verbal, written, or even implied through actions (e.g., brandishing a weapon).

2. Fear of the Threat Being Carried Out- The victim must have reasonably believed that the threat could be acted upon.

3. Intent of the Accused- The person making the threat must intend to cause fear, not just use reckless language.

If they fail in any of these then the accused is entitled to a not guilty verdict. 

What are defences to Threats to Kill?

There is no one-size-fits-all defence to this criminal charge and these specific circumstances of the case will be key in in the assessment as to whether potential offences are available. I can only therefore outline some examples of potential defences. The inter relationship between the law and the facts is key and it may be advisable to seek legal advice if matters are not clear. Some examples of defences that I have successfully used in the past include:

- No Genuine Threat – If the words were clearly made in jest or exaggerated frustration, the defence may argue that no real fear was intended.

- Lack of Intent – If the accused did not actually intend to cause fear, they may not be guilty.

- Lawful Excuse – If the threat was made to prevent a crime or in self-defence, it may be justified (as seen in Cousins [1982] QB 526).

In dealing with prosecutions under this offence for over 25 years, I have found that context is key in the establishment of any defence. What can seem, on the face of it, as an open and shut prosecution can often be successfully defended by providing important context as to when, where, why, and how any threats were made.

It is also open for the defendant to contend that no threat was made at all, and that the complainant in the case has made-up the threat to get the defendant in trouble with the police. This is particularly relevant in cases where there are scores to settle as between people, particularly in a domestic context where there can often be an acrimonious breakdown in relationships.

Threats to Kill and Online Communications

With the rise of social media, online threats are now being prosecuted more frequently. Whilst not replacing he old law, the Online Safety Act 2023 introduced a new offence for sending threatening communications, which can overlap with threats to kill under section 16 of the Offences Against the Persons Act 1861.

Threats made via social media posts, Text messages, Emails or Video messages can all lead to prosecution under the Online Safety Act 2023, especially if they cause the recipient real fear.

Threats to Kill Sentencing

Threats to kill is a serious criminal offence and upon conviction carries a maximum sentence of 10 years' imprisonment.

Obviously, it is very rare for the maximum sentence to be applied by a court and any sentence in court well look carefully at the circumstances surrounding the Commission of the offence. In sentencing the court will consider various factors, including:

- The severity of the threat. Was it a spur-of-the-moment remark or a calculated, repeated threat?

- The context. Was it made in a domestic dispute, during a robbery, or as part of ongoing intimidation?

- The defendant’s history. Prior violent behaviour or criminal records can increase the severity of sentencing.

There are a number of relevant appellate cases that demonstrate the Court’s approach towards sentencing for this offence:

- In Att-Gen’s Reference (Clews) [2019] EWCA Crim 769, a man with a history of violence threatened to kill his partner. His sentence was increased due to the domestic nature of the threat.

- In Corrie [2020] EWCA Crim 1162, a defendant who made a threat while in prison was given an extended sentence due to the risk he posed on release.

- In Baldwin [2021] EWCA Crim 417, a young woman who threatened her partner with a knife had her sentence reduced due to her mental health condition.

The Sentencing Council guidelines on threats to kill can be found here. 

Conclusion

Threats to kill are treated as a serious criminal offence, with severe penalties for those convicted. Whether made in anger, fear, or frustration, such threats can have lasting legal consequences.

If you are facing charges, it may be advisable to seek professional legal guidance to try to ensure the best possible outcome.

Quentin Hunt is a specialist criminal barrister who has been dealing with threats to kill cases for over 25 years, he is regarded as an expert in the area. Quentin can assist at any stage in proceedings, from the pre charge stage through to advice, and representation at court. Quentin accepts instructions both directly from members of the public and through solicitors. If you require legal assistance on a threats to kill charge, you may contact Quentin for a free, confidential, no obligation discussion about how he can help in your case.