As social media is alive with commenting on the The Archers Helen Tichener trial (see our related blog series From the Archers to Archbold), the authorities’ way of dealing with domestic abuse is in the media spotlight.

Indeed, tackling domestic abuse was a priority for the Prime Minister Theresa May during her time as Home Secretary and in December 2015 the offence of controlling or coercive behaviour was introduced.

However, the impact of these new measures appears to have been called into doubt, as it has been reported by The Guardian that Police forces across England and Wales have laid a charge under Section 76 of the Serious Crime Act 2015 on just 62 occasions. It was also reported that eight police forces in England and Wales have not charged anyone with the offence to date.

At this point, it is not clear from the news report whether this relates to 62 separate charges, or charges against 62 defendants.

So what did the new regime introduce and is the accusation that police are “failing” to use the new law fair?

The Offence

Section 76 of the Serious Crime Act 2015 introduced a single offence of controlling or coercive behaviour.

Arguably, there are two discrete offences created by Section 76. The first offence, the “violent” offence may be committed where a person (A):

  • “repeatedly or continuously” engages in behaviour towards another person (B) that is controlling or coercive;
  • There is a “personal connection” between (A) and (B) at the time the behaviour took place;
  • The behaviour must have had a “serious effect” on (B):
    - Which caused the victim to fear violence will be used against them on “at least two occasions”
  • B must have known or “ought to have known” that their behaviour would have a serious effect on the victim.

The second offence, the “serious alarm or distress” offence, which is required to have a substantial adverse effect on B’s usual day-to-day activities, may be committed where a person A:

  • “repeatedly or continuously” engages in behaviour towards another person (B) that is controlling or coercive;
  • There is a “personal connection” between (A) and (B) at the time the behaviour took place;
  • The behaviour must have had a “serious effect” on (B):
    - Which causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
  • B must have known or “ought to have known” that their behaviour would have a serious effect on the victim.

The Numbers

Whilst numerically, the figures may sound unimpressive – this should not be a surprise.

The first reason why the figures are not higher is that the offence only came into force on 29 December 2015 - and is therefore a relatively new offence. This means that both the Police and the Prosecutors may be less willing to use this charge as they are unclear as to the breath and ambit of the offence.

The second reason is that the offence created under Section 76 of the Serious Crime Act 2015 is capable of encompassing such broad criminal conduct, that the acts alleged will often constitute an existing specific criminal offence.

The Home Office Guidance: Controlling or Coercive Behaviour in an Intimate or Family Relationship suggest that the following types of behaviour may be controlling or coercive for the purposes of an offence under Section 76 of the Serious Crime Act 2015:

  • “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.”

It is clear that a significant number of these behaviours are already statutory offences. Therefore, the Police and CPS can be forgiven for laying more appropriate charges of, for example: threats to kill, assault, criminal damage and rape, rather than the less specific Controlling or Coercive behaviour offence.

Moreover, there are also other offences such as harassment and stalking which cover a broad array of controlling or coercive behaviour and may be used appropriately by the Police and CPS.

Analysis

The purpose of introducing the offence of controlling and coercive behaviour was to provide a tool for the Police and Prosecutors to address behaviour in on-going relationships between intimate partners or family members, which may not otherwise have been caught by existing criminal offences.

The rationale for the offence is explained in The Home Office Guidance: Controlling or Coercive Behaviour in an Intimate or Family Relationship as:

The offence closes a gap in the law around patterns of controlling or coercive behaviour that occurs during a relationship between intimate partners, former partners who still live together or family members.

The offence is therefore aimed at targeting the conduct that would otherwise potentially fall outside the ambit of previously existing statutory offences. The seemingly low numbers of charges should not be seen to be evidence of a failure; rather, it may be an indication that the offence is being applied in appropriate instances that are not already covered by existing statutory offences.