WHAT IS EXTORTION?

A person who extorts property from another person by means of threat commits a second degree felony-Section 151 (1) of the Criminal Offences Act 1960 (Act 29).

In Ghana, the elements of the offence of extortion are delicate, with each requiring proof in order to secure a conviction. Central to the offence is a basic requirement which the prosecution must establish: whether, at the time the complainant parts with the property, the threat has operated on his or her mind.

This, however is not the case in some East African jurisdictions. In Haji Moledina & Another v. R [1960] 1 EA 678, the issue arose at trial, as to whether or not a person from whom money was demanded by menaces had to be actually alarmed or frightened by the threat before the offence can be established. It was held, inter alia, that the complainant does not necessarily have to be actually frightened or alarmed in order for the charge to succeed.

Effectively, in jurisdictions that uphold this “Moledina principle”, the prosecution may succeed even where the threat does not actually operate on the mind of the complainant or victim, provided the other elements of the offence are established. The position in Ghana, however, may be summed by the erudite judgment of Edusei J in Illiasu and Another v The Republic [1968] 1 GLR 742. The learned justice enunciated “…bearing in mind the words of section 151 of Act 29, is that if a man is induced to part with his money or property through fear or alarm, he is no longer a free agent and is no longer capable of parting with the property with his consent.  If the threat is of such a character that it is not calculated to deprive any person of reasonably sound mind and ordinary mind of the free and voluntary action of his mind it would not be a threat within the meaning of the section…”.

In essence, this position of the law on extortion in Ghana, is consistent with the English position in the case of R. v. Tomlinson [1895] 1 Q.B. 706 at pp. 709-710, (C.C.R). Lord Russell of Killowen CJ, whose observation was quoted by Edusei J in Illiasu v R (Supra) stated: “he ought to have told the jury that the question was whether the threat or words used were such as would naturally and reasonably operate on the mind of a reasonable man; in other words, whether they would have such an effect on such a person as to deprive him of his free volition and put a compulsion on him to act as he would not act otherwise.”

Therefore, even where a threat is made with the intention of inducing a person to part with property, it will be difficult to secure conviction on a charge of extortion in Ghana if the words used or the threat is not of such a nature as is likely to operate upon the mind of a reasonable man. The prosecution must go further to show that, the threat operated on the mind of the complainant at the time that property passes, such that it can be said that the complainant was deprived of his free volition to part with the property or was under compulsion to part with property.

This begs the question: what happens where a complainant is threatened and subsequently parts with property, but, at the time of the parting, the threat is no longer operating upon his or her mind? Conversely, what happens where a complainant is threatened but does not part with the property because the threat fails to deprive him or her of the free volition to do so? In either circumstance, would it be legitimate to prefer a charge of attempted extortion contrary to section 18 of Act 29 against the accused?

Some guidance to these questions was provided in Illiasu & Anor v the Republic (Supra).  Edusei J held: “I have given serious consideration to this submission of learned state attorney and have come to the conclusion that there cannot be such an offence as attempting to extort money by means of threats there cannot be such an offence as attempting to extort money by means of threats…” this followed a submission by the learned State Attorney inviting the Court to consider the possibility of a conviction for attempting to extort money by means of threats.

 The first appellant in that case had been convicted by the Circuit Court of extorting money from one Amina Dagomba. The appellant and the complainant were friends, and the complainant had, on several occasions, gifted money to the appellant. Upon receiving information that the complainant was about to be arrested for her political activities in the Northern Region, the appellant approached her and demanded money, which was purportedly to be handed over to the then Commissioner of Police. The complainant did not have the money and did not make any payment at that time. She was subsequently arrested and granted bail on condition that she reported to the authorities until she was eventually told that she was no longer required to report.

On that same day, the appellant approached the complainant, who had been discharged by the police, and again demanded the money purportedly to be given to the Commissioner of Police. He further informed her that she was among a list of persons whose names were to be published in the news and who would subsequently be placed in protective custody. The complainant, however, found the appellant’s conduct difficult to understand. If she was indeed to be placed in protective custody that very day, she wondered, why would the police have discharged her on the same day? She therefore reported the matter to the Special Branch of the Police, who agreed to provide her with the money to be handed over to the appellant

At the appointed time, the complainant gave the money to the appellant and, by means of a pre-arranged signal, the appellant was arrested by the police, who were already in the vicinity. He was taken to the police station and searched, whereupon the exact amount of money was found on him. He was subsequently convicted of extortion contrary to section 151 of Act 29. It was against this conviction that the appeal arose. The prosecution, relying on East African decisions for their persuasive effect, contended that the threat need not operate on the mind of the complainant so as to deprive him or her of free volition at the time the property passed for the charge of extortion to succeed. The prosecution further contended that, even where the substantive charge of extortion failed, the court could substitute the substantive offence with the offence of attempted extortion.

The court held that, “having regard to the particular facts of this case I cannot conceive a conviction for an attempt to extort money by means of threats when in fact the money did pass to the appellant but unaccompanied by threats at the time the threats having ceased to operate on the second prosecution witness’s mind.”  His Lordship had earlier observed: “as soon as the police intervened and handed to the second prosecution witness N¢400.00 the threat was no longer operating on her mind and any money given after that would not be the result of any threat operating on the second prosecution witness’s mind.”

In this author’s humble opinion, the above holding in Illiasu v The Republic (supra) exposes a potential gap and tension between the general principle governing attempts to commit criminal offences under section 18 of Act 29 and the recognition of attempted extortion under Ghanaian law. From Illiasu’s case, it appears that a charge of attempted extortion cannot be substantiated on the basis that such an offence was not recognised by the law. At the same time, the decision underscores that extortion must be understood as an offence in which the threat or words used operate upon the mind of the complainant so as to deprive him or her of free volition and compel him or her to act in a manner in which he or she would not otherwise have acted, as indicated in R v Tomlinson (supra).

The argument is made that once an accused person makes a threat with the intention of depriving the complainant of his or her property, and the threat deprives the complainant of his or her free volition and thereby induces the complainant to part with property, the charge of extortion contrary to section 151 of Act 29 ought to succeed even where the property does not pass.

With the greatest respect, however well-intentioned this proposal may be, in the considered opinion of this author, it is fundamentally flawed in law as a means of addressing the problem of “attempted extortion” in Ghana. Such a pronouncement would effectively remove an important ingredient of the offence under section 151 of Act 29: that the complainant must have been induced, by means of the threat, to part with his or her property.

In addition, such a proposal of treating the mere utterance of an operative threat as completed extortion converts a result-based property crime into a conduct-based threat crime. It strips the substantive offence of its required outcome viz the involuntary transfer of property.   

Consequently, this author agrees with the position of the law articulated in Illiasu v The Republic, to the extent that, where a threat is made which compels the complainant to act in a manner in which he or she would not otherwise have acted, the accused commits the offence of extortion where property in which the accused has no claim of right in good faith actually passes.

This author, however, proposes a reconsideration of the holding in Illiasu v The Republic (supra) so as to recognise the offence of “attempted extortion” under section 18 of Act 29. In effect, where a complainant reports the matter to the police after a threat has been made which has operated on his or her mind, but the property does not ultimately pass, the accused should, in appropriate circumstances, be capable of being charged with attempted extortion.

In such circumstances, the accused has formed the intention to commit the substantive offence of extortion and has taken overt or substantial steps towards its completion, but has been unable to complete the offence because the property does not pass.

Where these elements are present, the general principle of attempt is arguably engaged. It would therefore be problematic to make a blanket statement that the offence of attempted extortion is unknown to the law without addressing circumstances in which all the essential elements necessary to establish the accused’s criminal attempt are present, save for the actual passing of the property.

Otherwise, it will be herculean to prosecute an accused person in circumstances where the threat compels the complainant, yet the property does not pass before the complainant reports the matter to the police. Essentially, what happens to the perpetrator where the intended “extortion” is unsuccessful?

The point needs to be reemphasized that the basic requirement for extortion is whether or not the threat used  is of a nature or kind as to unsettle the mind of the victim or complainant upon whom the threat operates and deprive the victim of his/her free volition to act such that he/she parts with property which the victim or complainant will not have otherwise parted with, as held in R v Walton and Ogden (1863) 9 Cox CC 268 and re-echoed by Justice Sir Dennis Domnic Adjei in Contemporary Criminal Law in Ghana (2021), 3rd Edition, Buck Press p 370.

For the avoidance of doubt, a threat, when used in reference to extortion, does not include a threat of criminal assault or harm to the person threatened, as indicated under section 151(2) of Act 29. The threat may, however, include an unlawful threat to damage the person’s property; a threat to libel or slander; or a threat that a person shall be prosecuted on a charge of having committed an offence, whether or not the offence is punishable within the jurisdiction of the courts and whether or not the offence has actually been committed.

In sum, the law should not be required to choose between treating an unsuccessful extortion as wholly innocent conduct and improperly converting the threat into completed extortion. Section 18 of Act 29 potentially supplies the middle ground: where the intention to commit extortion is formed, the threat is operative, substantial steps are taken towards obtaining the property, and the commission of the substantive offence is frustrated solely because the property does not pass, an offence of attempt may arguably arise.

The ultimate question, therefore, is not whether the law should abandon the requirements of section 151 of Act 29, but whether those requirements should prevent the general law of criminal attempt from operating where the accused has embarked upon, but failed to complete, the intended extortion. It is therefore respectfully submitted that the requirements of section 151 should not, in themselves, preclude the application of section 18 where an accused has embarked upon, but failed to complete, the intended extortion.