New legislation recognises coercive and controlling behaviour as criminal offence

The government has announced this week that the new criminal offence of coercive and controlling behaviour will come into force in England and Wales on 29 December 2015. The move has been welcomed by support services and lawyers alike.

Why the new law?

Until recently, there was a gap in the law which meant that repeated patterns of non-physical behaviour were not recognised in a criminal law context as domestic abuse. Emotional abuse and control within relationships was therefore not considered a criminal offence capable of prosecution.

Historically, the police’s powers were limited to prosecuting for domestic abuse offences where there was evidence of physical injury. The new provision provides long-awaited legal recognition that the harm caused to an individual by coercion or control from a partner, former partner or family member is a form of abuse and that a repeated pattern of abuse can be more harmful than one incident in isolation.

The offence will carry a maximum prison sentence of five years, a fine or both. The court can also make additional orders, such as compensation or a restraining order.

The offence is created by the Serious Crime Act 2015. This week, the Home Office has issued guidance for the police, criminal justice agencies and voluntary organisations and NGOs, to assist professionals in recognising the signs of this behaviour and how they can take further action to protect potential victims. The new guidance stresses the importance of police understanding the new offence and ensuring that officers recognise the signs and know how to take action when attending call outs. The guidance also contains a checklist for police officers to ensure that they are providing adequate support to victims of coercive or controlling behaviour.

What is controlling or coercive behaviour?

Controlling or coercive behaviour is a pattern of behaviour displayed over a period of time, where one person exerts power, control or coercion over another.

Controlling behaviour is defined as behaviour “designed to make a person subordinate/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 and regulating everyday 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”.

Recognising types of behaviour

Behaviours associated with a coercive or controlling relationship include:

• isolating a person from their friends and family;
• depriving them of their basic needs and taking control of everyday life (eg where a person can go, who they can spend time with, where they can work, travel);
• repeatedly putting a person down, eg telling them that they are worthless;
• enforcing rules and activity which humiliate, degrade or dehumanise the victim;
• monitoring a person via online communication tools or using spyware;
• depriving access to support services, eg GP/medical services;
• financial abuse including control of finances;
• threats to hurt or kill;
• threats to a child;
• assault;
• criminal damage (such as destruction of household goods); and
• rape.

Note: some of the above may constitute criminal offences in their own right.

What is the offence?

For the offence to apply, the following criteria must be met:

• the coercive or controlling behaviour must take place “repeatedly or continuously” (although the timeframes are not yet defined in law);
• the individuals must have been personally connected when the incidents took place (ie were in a relationship, were cohabiting after a relationship or were family members living together);
• the behaviour must have a serious effect on the victim (for example it has caused the victim to fear violence will be used against them more than once, or it has had a substantial adverse effect on the victim’s day to day activities); and
• the perpetrator must have known (or ought to have known) that the behaviour would have a serious effect on the victim.

Is there a defence?

It is possible for a person to plead that they were acting in the best interest of the victim, but they would have to show that their behaviour was objectively reasonable in the circumstances. The test for the court therefore is whether a reasonable person with access to the same information would have done the same thing.

Evidence

It is the responsibility of the police to build a case for the victim, rather than the other way round. However, it can be helpful to keep records of evidence of the behaviour to assist prosecutors. It may be sensible for a victim to forward any evidence gathered to a friend or their lawyer for safe-keeping.

Examples of evidence that can be gathered to help build a case for coercive or controlling behaviour include:

• copies of emails, text messages and phone records;
• evidence of abuse over social media and other platforms;
• photographs of injuries/evidence of an assault;
• CCTV;
• police records;
• medical records;
• records of interactions with support services;
• bank statements (evidence of financial control); and
• evidence of isolation (eg lack of contact with family and friends, withdrawing from activities).

Additional points

The offence does not apply to:

• incidents before the legislation comes into force;
• people who were not personally connected (see above) at the time that the behaviour occurred or children under the age of 16;
• one off incidents; and
• incidents that have not had a serious effect on the victim.

If the parties are not personally connected in line with the definition above, then alternative laws and offences may apply instead (such as stalking and harassment).

Comment

At the very least, the new legislation helps to raise awareness of the reality of emotional abuse within relationships and the long-lasting, damaging impact that it can have upon individuals and their families.

Quite how police will be able to evidence coercive or controlling behaviour, and what will amount to sufficient behaviour capable of prosecution, remains to be seen. It is vital that local police forces provide appropriate and adequate training to their officers to recognise the signs of non-physical domestic abuse, coercive and controlling behaviour and that they are able to provide adequate support to victims and their families, including taking action to prosecute abusers where appropriate.

However, conviction and imprisonment are not always the best solution in the long-term and prosecution may not be appropriate, or indeed possible, in all circumstances. For example, a criminal record could impact on an individual’s ability to find employment, which in turn could impact on their ability to pay child maintenance, thus impacting on a family’s financial circumstances.

Whilst an individual should be held accountable for their actions, it is important that adequate support is available for those who have physically and/or emotionally abused their partners and family members, so that they are able to recognise the impact of their behaviour, learn how to change their behaviour and to better protect against future reoccurrences.

Support is available for victims of domestic abuse, including those who have suffered from coercive and controlling behaviour, regardless of gender, religion, background or sexual orientation, from a variety of organisations.

The Domestic Violence Disclosure Scheme (also known as “Clare’s Law”) was launched in England and Wales in March 2014 and was rolled out in Scotland in October 2015. The scheme enables people to make enquiries about their partner, or the partner of someone they know, if there is a concern that person may be being abusive towards their partner.

In the event that the police decide not to prosecute, there are other avenues available to protect yourself through the family courts, including non-molestation and occupation orders. Legal aid remains available in family cases for those who have experienced domestic abuse.

This post was first published on http://www.tltsolicitors.com on 9 December 2015