Controlling or coercive behaviour in an intimate or family relationship – preparing for the new offence

9 December 2015

In preparation for introduction of the offence of controlling or coercive behaviour in intimate or family relationship, the Home Office has produced statutory guidance for the police and criminal justice agencies. With the provisions coming into force on 29 December 2015 John Harding discusses the new offence and examines the challenges surrounding the policing and prosecution of this.

Controlling or coercive behaviour in an intimate or family relationships

Section 76 of the Serious Crime Act 2015 introduces a new offence of controlling or coercive behaviour in intimate or family relationships.  As the guidance sets out, this offence is constituted by behaviour on the part of the perpetrator which: takes place “repeatedly or continuously”; the victim and alleged perpetrator must be “personally connected” at the time the behaviour takes place; the behaviour must have had a “serious effect” on the victim, meaning that it has caused the victim to fear violence will be used against them on “at least two occasions”, or it has had a “substantial adverse effect on the victims’ day to day activities”. 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 carries a maximum sentence of 5 years’ imprisonment, a fine or both.  Defences are set out under the Act where it is defence for “A” to show that: in engaging in the behaviour in question, A believed that he or she was acting in “B”’s best interests, and, (b)the behaviour was in all the circumstances reasonable.

Home Office Guidance

Statutory guidance issued under s.77 was presented on 5 December.  A person investigating offences in relation to controlling or coercive behaviour under section 76 must have regard to the guidance. Whilst there is no statutory definition of domestic abuse the guidance refers to the “cross-government” definition which encompasses domestic violence, controlling behaviour and coercive behaviour (as well as so-called “honour” based violence, female genital mutilation, and forced marriage. The guidance therefore provides information on identifying domestic violence, domestic abuse and types of controlling or coercive behaviour. It also refers to circumstances in which the new offence might apply; the types of evidence for the offence; and, the defence.

Political high priority vs resourcing reality

Tackling violence against women and girls (VAWG) a top political priority for the Home Secretary  - a £3 million fund was launched earlier on this year.  With Theresa May referring to  abuse by intimate partners or family members as a "hideous" crime this new offence seeks to “close the gap” where the current law on stalking and harassment does not apply to controlling or coercive behaviour that takes place in an on-going intimate relationship.  The new offence does of course cover both male and female victims.

Law enforcement-wise the Crown Prosecution Service has seen a dramatic increase in the numbers of cases concerning violence against women and girls – including rape, domestic abuse and sexual abuse – and launched a specific report for this area in 2014/15.  The recent report shows that more cases are being referred from the police and are being charged, prosecuted and convicted than ever before. In 2014/15, 107,104 of these crimes were prosecuted, an increase of more than 16,000 from last year (18.3%) and the highest ever in CPS records. Likewise, the numbers of those convicted rose by over 11,000 (16.9%) to its highest level ever.

However, political rhetoric is one thing, but with the Police and the Crown Prosecution Service facing funding cuts and ever-limited resourcing we have to ask whether this new offence going to be efficiently and fairly investigated and pursued? Indeed as the CEO of Refuge (Sandra Horley) said to the Parliamentary inquiry at the time “criminalising coercive control could have unintended consequences”. Indeed with a multitude of options to tackle domestic violence – both civil and criminal – might not effective enforcement of current legislation be the way forward instead? As Sandra Horley said – this new offence was not the answer because there were "already enough laws", but that they were "not being implemented correctly”.

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