Unexplained Wealth Orders: What we know one year on
The criminal offence of controlling and coercive behaviour, pursuant to S.76 of the Serious Crime Act in an intimate or family relationship came into force just over two years ago. It is an imprisonable offence that has frequently led to lengthy custodial sentences.
In recent months there have been numerous criticisms recorded by the media regarding the extent to which the legislation has been applied. Most notably, Plaid Cymru MP Elfyn Llwyd who first proposed the criminalisation of coercive control in 2014 has expressed frustration regarding the number of prosecutions. The statistics available to date do confirm that the number of prosecutions has not been enormous. However, it is our view that controlling and coercive cases are being actively pursued by the police and that the number of investigations and prosecutions are on the rise. A freedom of information request in 2016 revealed that 62 charges were laid in the first six months of 2016. However, a more recent request found that the number of charges had risen to 532 by October 2017.
Indeed, we have seen that certain police forces are carefully considering the offence whenever domestic complaints are made. Our experience has been that often controlling and coercive prosecutions emanate following questioning of complainants by police domestic abuse teams, who were originally investigating other domestic offences. The continued publicity surrounding these cases is likely to encourage police forces to carefully scrutinise relationships for elements of control and coercion. These behaviours can be subtle and unnoticed by others, have a serious adverse effect on an individual, and be detrimental to the victim’s mental and physical health. Conversely, we have experience of representing clients who have been unfairly prosecuted for such offences as a result of exaggerated assertions of controlling behaviour, which are equally difficult to disprove. Such allegations are normally made in conjunction with family proceedings often where there are significant claims for financial relief.
It is unsurprising therefore that this behaviour has also been drawn to the radar of the family justice system. In October 2017 Practice Direction (“PD”) 12J came into force. It sets out what action the Family Court is required to take when domestic abuse is raised as an issue between the parties in any proceedings under the Children Act 1989 (the “Children Act”), for example a child arrangements application addressing which parent a child should live with, or how much time a child should spend with its parents post separation.
The family court is now obliged under PD 12J (5) to “consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms”.
Significantly and for the first time the definition of domestic abuse in the family sphere now includes “controlling” and “coercive” behaviour. The definitions of such behaviour are the same in both the criminal and family law:
The Family Procedure Rules are therefore now of significance for a number of reasons in criminal proceedings where controlling and coercive behaviour is alleged.
Domestic abuse through controlling and or coercive behaviour under PD 12J can arise in relationships “between those… who are or have been intimate partners or family members“. This means under family law that it can occur after a relationship has ended. In contrast, the definition of controlling and/or coercive behaviour under the Serious Crime Act states that the parties must be in an intimate personal relationship (whether living together or not), live together as family members, or live together having previously been in an intimate relationship.
In practice, controlling behaviour whilst parties are no longer in a relationship or living together is not therefore a criminal offence. This might mean that the police are less likely to pursue allegations of abuse that take place predominantly after the end of a co-habiting relationship. However, the family court’s ambit in Children Act proceedings is wider - it is required to conduct an investigation during relevant proceedings even if the abuse occurs once parties have separated and are no longer co-habiting.
Where the family court does investigate domestic abuse of this kind it is highly likely that it will make findings of fact that are capable of confirming the necessary elements of the criminal offence of controlling and coercive behaviour. Any determination in the family court will not be admissible at a criminal trial. However, PD 12G permits a party to communicate “the text or summary of the whole or part of a judgment given in the [family] proceedings” to a police officer “for the purposes of a criminal investigation”.
We have found that in practice, where a party to divorce seeking only a divorce and or making financial claims in that process makes a criminal complaint regarding controlling and/or coercive behaviour, it is likely that the family proceedings will be suspended pending the outcome of the criminal trial. However, in proceedings concerning the Children Act there is unlikely to be such leeway as the resolution of children proceedings will be given priority.
As a result, a party could find that admissions or findings in the context of the Children Act proceedings will provide the ammunition needed for a spouse or partner to make a successful criminal complaint to the police. Further, a party initially unsure about making a criminal complaint during any family proceedings might feel more confident in doing so if a finding of abuse is made in family proceedings; such written findings can then be provided to the police in the form of a written judgment.
Given the increasing awareness of “controlling” and “coercive” behaviour, family proceedings are now more than ever capable of becoming a rehearsal for controlling and coercive behaviour allegations in the criminal forum. Consequently admissions, concessions, and disclosure may need to be considered even more rigorously than in the past; the aims of parties in family proceedings will also need to be carefully assessed and weighed against the subsequent risks if a criminal allegation may follow at any point.
This cuts both ways (i.e. whether a victim or defendant) as there is nothing preventing an individual under suspicion of a criminal offence from communicating a judgment that confirms no finding of domestic abuse in family proceedings to the police. Indeed, given the lower burden of proof in family proceedings, the police may well be reluctant to pursue an investigation where one tribunal has already determined that there has been no control or coercion on the balance of probabilities (given that the criminal court would need to be satisfied beyond reasonable doubt to convict). In light of this, it remains essential that parties seek appropriate advice to ensure that they understand the implications of their decisions in family disputes on potential or actual criminal proceedings.
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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