Is controlling behaviour now a criminal offence?

    Is controlling behaviour now a criminal offence?

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    Photo from the Guardian

    Introduction

    On 29th December 2015 it was reported in the media that “controlling or coercive domestic abuse to risk five-year prison term” – what’s this all about?

    This comes from s76 Serious Crime Act 2015 that came into force on 29th December. The heading is “Controlling or coercive behaviour in an intimate or family relationship“. This was introduced to fill the perceived gap of prosecuting behaviour in a relationship context that falls short of harassment.

     

    How’s it defined?

    The offence is committed by a person A towards B if :

    (a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,

    (b) at the time of the behaviour, A and B are personally connected,

    (c) the behaviour has a serious effect on B, and

    (d) A knows or ought to know that the behaviour will have a serious effect on B.

    Breaking this down a bit, A and B will be ‘personally connected’ if :

    (a) A is in an intimate personal relationship with B, or

    (b) A and B live together and—

    (i) they are members of the same family, or

    (ii) they have previously been in an intimate personal relationship with each other.

    ‘Members of the same family’ is defined as one of the following relationships”

    (a) they are, or have been, married to each other;

    (b) they are, or have been, civil partners of each other;

    (c) they are relatives;

    (d) they have agreed to marry one another (whether or not the agreement has been terminated);

    (e) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);

    (f) they are both parents of the same child;

    (g) they have, or have had, parental responsibility for the same child

    Behaviour will have a ‘serious effect’ on B if :

    (a) it causes B to fear, on at least two occasions, that violence will be used against B, or

    (b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.

    The test of ‘ought to know’ is an objective test – would the reasonable person in possession of the same information as the defendant (including history between them etc) have known the effect of it?

    What ‘controlling’ or ‘coercive’ behaviour?

    This isn’t defined in the legislation (helpfully). The Home Office has produced some guidance as to their meanings :

    Controlling behaviour is:

    • a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support
    • exploiting their resources and capacities for personal gain
    • depriving them of the means needed for independence
    • resistance and escape and regulating their everyday behaviour. 

    Coercive behaviour is:

    • a continuing act or a pattern of acts of assault
    • threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.

    Some examples are given :

    • isolating a person from their friends and family
    •  depriving them of their basic needs
    •  monitoring their time
    •  monitoring a person via online communication tools or using spyware
    •  taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep
    •  depriving them of access to support services, such as specialist support or medical services
    •  repeatedly putting them down such as telling them they are worthless
    •  enforcing rules and activity which humiliate, degrade or dehumanise the victim
    •  forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities
    •  financial abuse including control of finances, such as only allowing a person a punitive allowance
    •  threats to hurt or kill
    •  threats to a child
    •  threats to reveal or publish private information (e.g. threatening to ‘out’ someone)
    •  assault
    •  criminal damage (such as destruction of household goods
    •  rape
    •  preventing a person from having access to transport or from working.

    Is there a defence?

    The offence can only be committed if the victim is over the age of 16.

    There’s a defence if A believes that they were “acting in B’s best interests” and “the behaviour was in all the circumstances reasonable“. This does not apply if the behaviour caused B to fear violence.

    This caused a bit of a concern that people would escape liability by stating that they believed that their behaviour was in the other person’s best interests. The requirement of this to be reasonable means that this is probably not going to be an issue.

    What is the sentence?

    The offence is either way, with a maximum sentence of 5 years in the Crown Court.

    Will it work?

    That’s the question. We will have to wait and see, but the offence looks like it will be a difficult one to prove, at least in isolation.

    Where there are other illegal acts (such as assaults) it may be that this offence will be ‘tagged on’ by the CPS. This will have the effect of raising the maximum sentence. It does mean that a defendant would be able to elect Crown Court trial however, so it may be that this will curb the CPS’s enthusiasm for this somewhat.

    I am sceptical as to whether we will see many ‘stand alone’ prosecutions. This is mainly due to the combination of the fact that police budgets have been cut so much with the difficulties in investigating and prosecuting where the level of behaviour on each occasion does not reach the criminal standard.

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    Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

    3 COMMENTS

    1. Hi Dan. I’m a Long-term reader of yours, and yet I feel compelled first to comment by this news today.

      You’ll forgive my naivety, I hope, but this new offence disappoints me somewhat. I should be thrilled that the law is evolving to recognise the devastating consequence this course of conduct has on the lives of many vulnerable women (and I’m sure men also).

      Trouble is, I can’t see how this law can work. If it’s purpose is to change society for the better, to prevent this beastly conduct from its very conception, then I struggle to subscribe to this prospect. Neither do I feel this would serve to empower victims in a controlling relationship – that said, what could be done?

      To mine eyes, those of relatively fresh experience, this would appear another haphazard Tory “reform” akin to the EVEL malarkey!

    2. isolating a person from their friends and family
       depriving them of their basic needs
       monitoring their time
       monitoring a person via online communication tools or using spyware
       taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep
       depriving them of access to support services, such as specialist support or medical services
       repeatedly putting them down such as telling them they are worthless
       enforcing rules and activity which humiliate, degrade or dehumanise the victim
       forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities
       financial abuse including control of finances, such as only allowing a person a punitive allowance.
      .
      Perhaps the government could start off by setting an example. If people see the government getting away with this sort of behaviour, no wonder they try it themselves.
      ‘Pot calling kettle black’ and all that.
      OK, something needs to be done – but this is barmy.

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