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Coming soon: the Domestic Abuse Bill
David Sleight
This summer, The Telegraph reported the disciplinary action taken against PC Wayne Hodge and found that “he was behaving in a controlling and coercive manner”. Apparently, he banned girlfriends from talking to men, wearing red nail polish or accepting Tesco deliveries if he was not at home.
Coercive control was probably first identified by the US writer Evan Stark who, in 2008, wrote Coercive Control, which has since been described as “one of the most important books ever written on domestic violence…the pattern of controlling behaviour more akin to terrorism and hostage taking”.
In the UK, the recently introduced criminal offence of coercive or controlling behaviour may be committed by repeated or continuous behaviour that is controlling or coercive on an individual who is personally connected to the alleged perpetrator, which has a “serious effect” on the victim which - causes them to fear that violence will be used against them on “at least two occasions” or - has a “substantial adverse effect on their usual day-to-day activities”.
Inevitably, where such an offence is thought to have been committed, relationship breakdown and divorce often follows. With that, there is inevitably a strong link between criminal and family law proceedings; two areas of longstanding expertise at Kingsley Napley and where we have witnessed both the collision and the collaboration of two very different skillsets and approaches to legal practice.
Coercive and controlling behaviour – key differences between family and criminal law
- You can go to prison - coercive and controlling behaviour comes with a possible maximum prison sentence of five years and is considered a significantly more serious offence than harassment (without violence), which carries a maximum sentence of two years. Family lawyers on the other hand are more used to dealing with the risks and rewards of adversarial litigation to divide money and the time that children spend with their parents. However, in family proceedings, people very rarely go to prison.
- Complaining or defending - a divorce where a complaint of controlling and coercive behaviour has been made to the police will be very different. The fault based petition for a divorce based on the behaviour complained of is likely to become a battleground as the criminal lawyers will insist that it is defended and not compromised in any way as even the slightest nod in the direction of acquiescence to the allegations made may be misconstrued by the jury deciding the criminal case.
- The burden of proof - in a criminal court the standard of proof is “beyond all reasonable doubt” but a family court has a slightly lower threshold of “the balance of probabilities”.
If you are defending the allegations, then you will really want the divorce process to be stopped/stayed until after the criminal process has been concluded. However strong your feelings are, such an approach actually makes common sense because a conviction in the criminal court will mean, inevitably, that there can be little need to defend the divorce whilst an acquittal will lead to a recalibrating of the wording of the divorce petition or acquiescence on the basis that the words no longer pose any risk.
The big question for wives and mothers (without wishing to stereotype but it is usually them making the complaint) is what impact the complaint could have on the accused – e.g. reputational/professional damage, a financial penalty, or actually a custodial sentence?
This is a huge issue on which it is difficult for any lawyer to advise. However, what is pretty certain is that once a complaint has been made to the police, there is unlikely to be any stopping the process.
Kingsley Napley’s family and criminal teams have significant experience in this field of work, collaborating from start to finish to manage a path through what can be one of the most difficult and unpredictable processes that couples face at the end of a relationship.
Further information
If you have questions about any of the issues raised in this blog, including if you’re faced with an allegation of coercive and controlling behaviour or you wish to make a complaint about one, please contact any member of our family and criminal teams.
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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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