Coming soon: the Domestic Abuse Bill
An allegation of Controlling and Coercive behaviour may give rise to a criminal complaint and an intrusive police investigation. Whether your client has accused their partner of Controlling and Coercive behaviour or is the subject to a police investigation following such an allegation, it is critical to synchronise the criminal and family law advice. This article provides guidance through the tricky and unpredictable process.
Under Section 76 of the Serious Crime Act 2015, there are effectively two discrete offences, one relating to violence, and the other causing of serious alarm or distress. The elements of the offence are established where:
“Controlling” and “Coercive” are not defined terms within the Act, but Home Office Guidance provides the following definitions:
The rationale behind the creation of the offence was to close a perceived legislative gap and to address circumstances of domestic abuse which take place in intimate and family relationships that would not have otherwise have been captured by the existing legislation. The Home Office guidance to the offence recognises the reality that a “repeated pattern of abuse can be more injurious and harmful than a single incident of violence” and gives the following examples of the types of behaviours that might give rise to the offence:
It is important for clients and family lawyers to realise that if allegations of Controlling and Coercive behaviour are made during family proceedings, both parties may find themselves in the spotlight of both the criminal and family courts. In these cases, the criminal and family law worlds can collide and decisions taken as part of a client’s criminal case may not necessarily be favourable to their strategy in concurrent family proceedings, or vice versa. A collaborative approach between family and criminal lawyers is essential to ensure a positive outcome, whether your client is the complainant or the suspect.
Standards of proof
Firstly, a key consideration is the difference in standards of proof in both family and criminal law proceedings. In a criminal trial, the Prosecution must have sufficient evidence to prove their case before the jury or magistrates “beyond reasonable doubt”, whilst in family proceedings a judge will weigh up the evidence on “the balance of probabilities”. This distinction raises important considerations when deciding what arguments are put forward and what strategic decisions are made. For example, a crucial decision may be to determine whether or not the family proceedings should take place before the criminal proceedings, and how to ensure that the correct sequence of events follows.
Because of the lower standard of proof in family proceedings, some complainants may prefer for their matter to be dealt with as a discrete issue before the Family Courts, where the tribunal may be more sympathetic and better equipped to provide meaningful outcomes which are designed to address future behaviour, rather than merely punishing past behaviour. This may be a particularly attractive option for complainants who do not wish for the defendant to gain a criminal record and lose their job as a result of the allegations that are being made.
Admissibility of evidence
A determination in family proceedings is not binding on a criminal court. However, admissions made in, for example, divorce petitions and witness statements in children proceedings are prima facie admissible within a criminal context.
This is something that all family lawyers should be aware of, particularly, in circumstances where a client is due to stand trial for an offence, or due to give evidence within criminal proceedings against a former partner. At this juncture it becomes critical to seek both family and criminal law advice. Any sudden “knee-jerk” reaction in the family proceedings could instantly jeopardise criminal proceedings and be used in evidence before a criminal court. An example that practitioners should be aware of is that a letter from one party’s solicitor to another’s with an aggressive and antagonistic tone could be construed as indirect Controlling and Coercive behaviour from one party to another and, potentially, used within a criminal context.
Likewise, allegations, admissions, or documents used in the criminal proceedings could impact the family proceedings in circumstances where both cases are running concurrently.
Sentencing and the risk of publicity
Clients who find themselves charged with the offence of Controlling and Coercive behaviour potentially face a lengthy custodial sentence (a maximum sentence of five years) and a potentially catastrophic criminal record, which in many cases would involve a client being struck off from their profession or dismissed from their job. The provisions for privacy and anonymity within the family context do not apply to defendants in criminal trials, where there is a high risk of significant press interest.
Some practical examples for family lawyers to be aware of:
In certain cases, a divorce petition may have been issued shortly after or before a party has been arrested or charged with this offence. The admission of facts or circumstances in one set of proceedings may well be used in a different context in the other. For example, a divorce petition may list certain particulars of the Respondent’s unreasonable behaviour as the facts to prove that the marriage has irretrievably broken down. Even if the divorce is not necessarily contested, an individual should carefully consider whether to agree to a petition based on unreasonable behaviour if there is any scope for that behaviour to constitute the elements of the criminal offence of Controlling or Coercive behaviour. A mere acknowledgement of the divorce petition in the family proceedings, even with the mildest particulars, could be deemed to be an admission that constitutes an element of the offence and is therefore likely to be admissible, if not part of the prosecution case, then almost certainly in rebuttal of the defendant’s case if he gives contrary evidence.
Any criminal verdict will inevitably determine and influence any outcome in the family proceedings, particularly regarding the grounds for divorce, and it may be strategic to postpone the family proceedings until the criminal trial has finished or to give no answer to a divorce petition until a criminal matter is resolved – a finding beyond reasonable doubt regarding the accused’s behaviour will leave no room for uncertainty in the subsequent family litigation.
A conviction in the criminal court will mean, inevitably, that there can be little need to defend the divorce. Whereas, an acquittal may lead to a recalibrating of the wording of the divorce petition or acquiescence on the basis that the words no longer pose any risk. This could save significant costs for all involved and prevent the need for lengthy litigation in the family court.
It is very likely, on an application by one of the parties to a divorce where such an offence has been alleged, to adjourn the divorce process pending the outcome of a criminal trial.
In children cases, different rules may apply with the family court less likely to stay or delay the proceedings (even if there are concurrent criminal proceedings) which could lead to the parties having to deal with the same or similar allegations before both courts.
In October 2017 Practice Direction 12J came into force setting out what the court must consider when allegations of domestic abuse (which includes specifically Controlling and Coercive behaviour) are made by one parent against another within children proceedings. 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”. Therefore, a court must determine as soon as possible whether it is necessary to conduct a fact finding hearing in relation to any disputed allegation of Controlling and Coercive behaviour (in addition to other domestic abuse) within the context of children proceedings.
McFarlane LJ set out specific guidance within his judgment in R (Children)  EWCA Civ 198. He noted “the purpose of the family tribunal is not to establish guilt or innocence but to establish the facts in as far as they are relevant to inform welfare decisions regarding children.” He made it clear that “The focus and purpose of a fact-finding investigation in the context of the case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court”.
A Fact Finding hearing in the family context where allegations of Controlling and Coercive behaviour are considered to establish a picture of what has happened in the past in order to inform a welfare evaluation as to the child’s future, is entirely different to the criminal trial where a binary test is applied to those same allegations. However, despite being “wholly different”, practically, one outcome can have a serious impact on the other. The family court may make findings of fact that are capable of confirming the necessary elements of the criminal offence of Controlling and Coercive behaviour.
In a criminal case, the prosecution must disclose to the defence all material that “might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.” This includes any material that might cast doubt over the credibility of the prosecution witness. For example, a previously inconsistent statement made in the family court proceedings will be disclosable.
This means that in family proceedings where one party complains of the behaviour of the other party and that behaviour might constitute Controlling and Coercive behaviour, extreme caution should be exercised. Practice Direction 12G permits one 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”. One party could, therefore, find that admissions in the context of family proceedings provide the information needed for a spouse or partner to make a separate criminal complaint. Family proceedings can therefore become a prejudicial rehearsal for Controlling and Coercive behaviour allegations within a criminal jurisdiction.
While it is important to recognise that all cases are fact specific, the inevitable issues and hurdles that arise in concurrent criminal and family proceedings should be carefully considered and a strategy implemented at an early stage. The inter-play between the family and criminal jurisdictions must be borne in mind, as one decision could have potentially damaging consequences on both your client’s family and criminal cases and, in the extreme, on your client’s liberty and reputation.
This blog was first published in The Review , August 2018. The Review is a publication by Resolution, a national organisation of family lawyers and the original blog can be accessed by Resolution members HERE.
If you have any questions about controlling and coercive behaviour in the context of family or criminal proceedings, please see HERE or contact a member of our family & divorce and criminal litigation teams.
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