Controlling and coercive behaviour in an intimate or family relationship by Peter Doyle QC

From the 29 December 2015 a new offence came into force of controlling or coercive behaviour in an intimate or family relationship.

This offence joins the ranks of over 65 other offences intended to battle against domestic violence and is heralded by the government as closing a gap in the law by coming to the aid of those exposed to such behaviour within an ongoing intimate or family relationship or where the parties have been former partners but are still living together.

In an age of serious budget cuts to policing and other agencies, some have questioned the need for further legislation as opposed to a more effective enforcement of existing offences. However, this offence may be seen as sufficiently well proscribed as to provide a relatively clear peg on which to hang a particular type of offending instead of having to “seek out and search” for an existing offence that may or may not fit the bill.

The offence recognises that the harm caused by repeated or continuous abuse and its cumulative effect on the victim can be more injurious and harmful than a single incident of violence.

There is a number of requirements for an offence to be proved; (i) the victim and alleged perpetrator must be “personally connected” at the time the behaviour takes place (ii) the behaviour must have taken place “repeatedly or continuously” (iii) it must have had a “serious effect” on the victim in the sense that it has “on at least two occasions” caused the victim to fear violence will be used against him/her or it has had a “substantial adverse effect on the victim’s day to day activities” and (iv) the alleged perpetrator must have known that their behaviour would have a serious effect on the victim or the behaviour must have been such that he or she “ought to have known” it would have that effect.

The offence applies to couples where the behaviour took place when they were in an “intimate personal relationship”, whether at the material time they were living together or not. (Subsection(2)).  Thus for example the offence cannot apply to roommates who are not in an intimate relationship. For the purpose of the offence family members are defined by subsection (6). They must live together at the time of the behaviour (otherwise harassment legislation might be more appropriate.).

Section 76(8)-(10) provides a defence where the suspect or defendant believes that he or she was acting in the best interests of the victim and can show that in the particular circumstances the behaviour was objectively reasonable. There is thus an evidential burden that must be discharged if the defence is to succeed.

A genuine belief that one was acting in the best interests of the victim will fail the test if, when looked at objectively, a reasonable person with access to the same information would not find the behaviour to be reasonable.The defence is not available to those who have in fact caused another person to fear that violence could be used against them.

In defending himself against a genuine complaint, a suspect might in fact commit an offence under this provision by making a false counter-allegation in order to cause further harassment to his victim. Thus, a defendant might face multiple charges relating to the first offending in time e.g. an assault, as well as repeated and continuing conduct designed to wear down a victim’s support for a prosecution e.g. by isolating them and/or seeking to persuade them how worthless they are and why they would not be believed.

What is “coercive” or “controlling” behaviour? As this is not defined in the Act one must look to the non-legal cross-government definition of domestic violence and abuse[1] The definition includes “honour” based violence, female genital mutilation and forced marriage. Victims are not confined to gender or any ethnic group. It is clear that existing offences may be more appropriately engaged. Thus, forcing someone to marry is already an offence under the Anti-social Behaviour Crime and Policing Act 2014.

Controlling behaviour will include a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape or regulating their daily behaviour.

Coercive behaviour is a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim.

It can readily be seen that the offence has scope to capture a wide range of behaviour. Examples include:-

.  isolating someone from their family and friends

.  monitoring their time or monitoring them by online communication tools or using spyware.

. controlling where a person can go, to whom they may speak, what to wear and where they might sleep

. repeatedly putting them down by telling them how worthless they are

. financial abuse by controlling access to funds and only permitting them a punitive allowance

. threatening to “out” someone

. preventing someone from having access to transport or from working

. forcing someone to shoplift

. forcing someone to neglect the care of a child or prevent disclosure of abuse towards a child to the authorities

The behaviour does not have to have occurred within a domestic setting e.g. the home. The victim can be monitored by phone or social media from a distance.

As current case law suggests that the law on stalking and harassment does not apply to controlling or coercive behaviour taking place in an ongoing intimate relationship[2], this new offence clearly bridges an important gap while leaving existing legislation to deal with stalking and harassment where the parties are no longer living together and one is still seeking to exert control over the other from a distance.

The new offence does not have retrospective effect. This means that a charge cannot be brought in relation to behaviour prior to 29 December 2015. However, behaviour occurring before this date may still be adduced as evidence of “bad character”.

By virtue of s76(11) and the transitional provision in s86(14)(e), the maximum penalty on summary conviction is 6 months imprisonment and or a fine or both. On the commencement of s154(1) of the Criminal Justice Act 2003, that maximum will increase to 12 months. The maximum penalty on conviction on indictment is 5 years or a fine or both. Ancillary orders can also be made upon sentence (e.g. a compensation order) or conviction (e.g. a criminal behaviour order or restraint order). In the case of an acquittal restraining orders can be imposed[3]

Peter Doyle QC
25 Bedford Row

[1] See Home Office Statutory Guidance Framework December 2015

[2] R v Widdows (2011) EWCA Crim 1500

[3] See Section 5A Protection from Harassment Act 1997