The criminal offence of controlling and coercive behaviour: avoiding the potential pitfalls in family proceedings
The Bill is slowly progressing through both Houses of Parliament and committees are currently being formed in both Houses to scrutinise the Bill. Their deliberations are expected to be completed by 17 May 2019, when the Bill will move to the next stage of the legislative process.
The Bill has been lauded as a “landmark” piece of legislation. Previously, the substantive law concerning “domestic abuse” was set out in several statutes including The Serious Crime Act 2015, The Domestic Violence, Crime and Victims Act 2004 and The Offences Against the Person Act 1861.
It is argued that the new legislation is necessary because the existing legislative framework is inadequate to deal with the full remit of “domestic abuse.” The proposed bill consolidates and strengthens the existing legislation but does not create any new criminal offences.
Some of the proposed measures are as follows:
For the first time, the Bill sets out to define all aspects of domestic abuse in one statute. The following definition was consulted on and its constituent parts can now be found in the draft bill:
“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexual orientation. The abuse can encompass, but is not limited to: psychological, physical, sexual, economic and emotional forms of abuse.”
The definition includes both physical and psychological aspects of domestic abuse as well as creating a statutory definition of controlling and coercive behaviour, which previously was found only in home office guidance.
Controlling behaviour is defined as a range of acts that make a person feel inferior 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 and regulating their everyday behaviour (for example controlling the use of a partner’s finances or restricting a person from seeing friends and family).
Coercive behaviour is defined as an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten a person.
The definition aims to provide a broader interpretation of what may amount to domestic abuse and it will be helpful for police and prosecutors in identifying what indicative behaviours fall within the parameters of such offending.
It is important to note that the Bill does not create any further criminal offences. For example, the offence of controlling and coercive behaviour is already enshrined in the Serious Crime Act 2015. It merely provides a statutory definition for the types of behaviour which will now fall under the “domestic abuse” banner.
Whilst the Bill does not create any new criminal offences, it does provide additional powers to the police and courts to administer notices/orders designed to protect those who are victims of domestic abuse. These take the form of the following provisions:
A Domestic Abuse Protection Notice (DAPN)
The Explanatory Notes to the Bill explain that “the purpose of a DAPN is to secure the immediate protection of a victim of domestic abuse from future domestic abuse by a suspected perpetrator”. The notice can be issued by a senior police officer (Inspector or above) who has reasonable grounds for believing it is necessary to protect someone from domestic abuse. In effect, a notice acts as an emergency non-molestation and eviction order which can be issued by the police with immediate effect. It requires that an application for a domestic abuse protection order be made to Magistrates Court within 48 hours of the date of the notice. The notice is underpinned by a power of arrest.
A Domestic Abuse Protection Notice (DAPO)
A DAPO is “an order which can include prohibitions and requirements necessary to protect the victim from future domestic abuse and assist in preventing the perpetrator from carrying out any further domestic abuse.” Such orders granted upon application to a Magistrates Court (with or without notice) can include prohibitive measures such as eviction, non-molestation, non-contact and even electronic monitoring as well as “positive” intervention such as attending a parenting programme or drug and alcohol treatment. It is proposed that these orders should also be available as part of family proceedings in the High Court, certain civil proceedings in the County Court as well as criminal proceedings.
Whilst DAPOs are considered a civil order, a person who breaches the terms of a DAPO commits a criminal offence and is liable to a maximum term of five years imprisonment.
There is no doubt that the proposed provisions offer an enhanced toolkit to the police and family law practitioners, in particular, who wish to apply for protections to those they believe are subject to domestic abuse.
The draft Bill sets out a legislative prohibition on the cross examination of a victim by his/her alleged abuser in the family court but provides for the power to appoint a legal representative to conduct the cross examination on behalf of the accused. This is a welcome addition given the obvious risks of a victim of abuse being cross examined by the alleged perpetrator as well as the difficulties caused (to all parties) in fairly managing emotionally charged proceedings involving litigants in person.
The Bill will replace the current statutory test and introduce automatic eligibility for special measures in the criminal courts (i.e. measures such as a screen or evidence via video which aim to improve the quality of the evidence given by a complainant). It is our experience that special measures applications are rarely challenged at Court. Nevertheless, on occasion frivolous applications can be made and it is not always the case that a complainant of domestic abuse needs or requires special measures. Ultimately, the decision of whether special measures should be used is a matter for the Magistrates’ or Judge. However, automatic eligibility is likely to increase the numbers of special measures granted.
The Bill also contains proposals to extend extra-territorial jurisdiction for Courts in England and Wales to a number of “domestic abuse” offences. This means that UK nationals or residents may be prosecuted in the UK for offences that they allegedly committed abroad. The practical reality of the investigation and enforcement of these proposals must be seen in the context of the difficulties UK authorities already face in investigating the most serious of cases abroad. One also has to question the wisdom of extending extra-territorial remit with Brexit looming large. This is explored further in our recent blog - Widening the net: investigating and prosecuting offences overseas.
The 26 April 2019 was the deadline for responses in relation to the Bill’s consultation. It is anticipated that the Bill will receive further amendments as it makes its way through the Committee Stage in the House of Commons later this month.
Billed as a “landmark” piece of legislation, the draft does consolidate the existing types of domestic abuse and will be a helpful guide for the police, prosecution and family practitioners in identifying the less obvious, psychological aspects of abuse for the purposes of both family and criminal proceedings. New powers to apply for DAPNs and DAPOs certainly increase the enforceability of preventative measures to protect those subject to domestic abuse.
However, it is not as easy to identify how helpful an extension to the extra-jurisdictional remit of offences will be to an under-resourced police and CPS who are already struggling with the numbers of UK based complaints.
If you have any questions about domestic abuse or controlling and coercive behaviour, please contact a member of our criminal litigation team.
You may also be interested in reading some of our previous blogs on the topic of controlling and coercive behaviour in the context of family or criminal proceedings.
David Sleight is a partner in the criminal litigation team. He regularly acts for individuals in high profile cases and he specialises in providing advice at the crucial early stages of an investigation. He acts for defendants, witnesses and victims in a broad range of criminal matters, including: serious assaults, sexual offences, domestic abuse, controlling and coercive behaviour offences, internet and cybercrime, road traffic offences, theft, drugs offences, harassment and murder. David is recognised as a leading individual in Legal 500 UK and a “Distinguished Individual” in Spears. David regularly lectures on controlling and coercive behaviour offences.
This blog was co-authored with Emma Wardall in the criminal litigation team.
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