The Serious Crime Act 2015 received Royal Assent on 3 March 2015 and gives effect to a number of proposals in the Government’s Serious and Organised Crime Strategy. It deals with a wide range of issues from FGM to terrorism offences abroad.
On 29 December 2015 Sections 76 and 77 came into force. This created a new offence of controlling or coercive behaviour in an intimate or familial relationship (Section 76), together with the provision of guidance about the investigation of such offences (Section 77).
The offence under Section 76 is committed by behaviour which occurs repeatedly or continuously at a time when victim and perpetrator are personally connected and in circumstances when the behaviour has a serious effect on the victim and the perpetrator ought to know that it would have such an effect.
The definition of domestic abuse has been developing and widening over recent years and this new offence recognises the harm that an abusive and controlling relationship has on the victim.
Two women in the UK are murdered each week by a partner or former partner and controlling or coercive behaviour is one aspect of an abusive relationship.
Controlling or coercive behaviour is a pattern of behaviour over time, in which one party to the relationship exerts power and control over the other. Controlling behaviour is conduct designed to make the victim subordinate and/or dependent on the perpetrator by isolating them from friends and family, exploiting them, depriving them of independence and regulating their behaviour. Coercive behaviour is conduct, including assaults, threats and intimidation designed to harm, punish or frighten the victim. This can include depriving them financially, monitoring them, controlling their daily lives including where they can go, what they wear, threats to them or a child, threats to publish private information, assault and rape. While some aspects are criminal offences in their own right, others are not. However, the new offence views the pattern of conduct as a whole.
The controlling or coercive behaviour must take place repeatedly or continuously. The courts may look for evidence of a pattern of behaviour over time. However, each case must be viewed individually and the police should gather evidence which shows the behaviour is repetitive or continuous.
The pattern of behaviour must have a serious effect on the victim, in that they fear violence or they have been caused alarm or distress, which has a substantial effect on the victim’s day to day life.
The perpetrator must know that the behaviour will have a serious effect on the victim.
The perpetrator and victim must be in an intimate personal relationship whether or not cohabiting, or they lived together and were family members or they lived together and had previously been in an intimate personal relationship when the behaviour was experienced. If they are not personally connected the offence is not committed and the victim may be able to rely on the Protection From Harassment Act 1997. This legislation does not apply to controlling and coercive behaviour where the parties are personally connected.
A victim may not immediately realise that they are a victim of controlling or coercive behaviour and the police and other authorities should be mindful of this when dealing with potential victims. A variety of evidence may be used to support a charge of this new offence. Under Section 8 of the Police and Criminal Evidence Act 1984 the police can apply for a search warrant to access materials like bank statements. In some cases, while there may not be sufficient evidence to charge for an assault, there may be enough evidence to charge for the new offence. If a victim subsequently decides not to proceed with matters, whether in relation to a physical assault and/or the new offence, the police may nonetheless decide that the prosecution should still go ahead.
The perpetrator has a defence to the charge (excluding where they caused the victim to fear violence) if they can show they were acting in the best interests of the victim and that their behaviour was reasonable.
A conviction in the Magistrates’ Court has a maximum penalty of six months imprisonment, and this will subsequently increase to 12 months, and in the Crown Court the maximum sentence is five years. Even if acquitted, the court can impose a restraining order.
Domestic violence agencies working with victims have long recognised that domestic abuse is more than violent behaviour. For almost twenty years they have campaigned to extend the definition of domestic abuse to include a variety of conduct that is harmful to victims and their children and which is now encompassed in this new offence.
Jacqueline Fitzgerald was part of a local multi-agency group and EC funded project working to improve the provision of services to sufferers of domestic abuse.