Controlling or coercive behaviour in an intimate relationship

Controlling and coercive behaviour in an intimate relationship was introduced as offence by section 76 of the Serious Crime Act 2015. It was part of the government’s redefinition of domestic violence in March 2013, which for the first time ruled “any incident or pattern of incidents of controlling, coercive or threatening behaviour” was an offence.

Introduced as part of a wide attempt to modernise and tighten laws across a spectrum of criminality, press attention at the time mainly focused on new offences around organised crime, prisons and child sexual abuse. Controlling and coercive behaviour, on the other hand, was largely overlooked.

The offence represented a major change to the law. It was the first offence listed on statute books aimed specifically at domestic abuse.

Women’s advocacy groups welcomed the new offence. Polly Neate, then chief executive of Women’s Aid, said “Women’s Aid and other organisations campaigned to have this recognised in law and we are thrilled that this has now happened. It is a landmark moment in the UK’s approach to domestic abuse.”

Aside from the symbolic importance, perhaps the most major practical difference is the s76 offence is triable in either the Magistrates’ or Crown Court. It therefore has no time limit for when prosecutions can occur. Prior to 2015, offences used to prosecute domestic violence were frequently summary only (for example, common assault) and therefore had a six-month time limit to report them to the police.

This change to an either way offence attempts to recognise first, the gravity of the offending and second, the fact that for any number of reasons, a person subjected to controlling or coercive behaviour may take longer than six months after the incident to report it.

Prosecution criteria

The offence was based on the principle domestic abuse rarely happens as an isolated incident and is instead repeated or continuous behaviour which can have a cumulative effect. There were five key elements to the offence.

First, the behaviour must be repeated or continuous (s76(1)(a)), in much the same way harassment must be a ‘course of conduct’ rather than a single incident.

Second, the behaviour must be controlling or coercive. The Home Office statutory guidance provides a cross-government definition as follows:

“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.”

The Crown Prosecution Service (CPS) guidance provides a non-exhaustive list of examples. Among them are isolating a person from their friends and family, repeatedly insulting them, monitoring the person’s time, controlling their finances, threats to hurt or kill, reputational damage, or limiting access to family, friends and finances.

Importantly, the controlling or coercive behaviour does not have to end in physical or sexual violence.

In short, this is an open definition and indeed, the CPS guidance states “it will be open to the courts to consider acts by a defendant and to conclude whether those acts constitute criminal behaviour.”

Third, there must be a personal connection between the complainant and the defendant (s76(1)(b)). Both must be in an intimate personal relationship. Alternatively, they must be personally connected if they live together and either are members of the same family, or were previously in an intimate personal relationship.

S76(6) defines members of the same family as meeting one of eight criteria. These are if they are or were married or civil partners, are relatives, have agreed to marry one another or become civil partners, are both parents of the same child, or have or have had parental responsibility for the same child.

Fourth, the behaviour must have a serious effect on the victim. This is defined at s76(4) as when the culprit’s behaviour causes the victim to fear on at least two occasions violence will be used, or it causes serious alarm or distress with a substantial adverse effect on the victim’s daily activities.

Whereas the first aspect is fairly clear-cut, the second is more ambiguous. The CPS guidance suggests this could include stopping or changing the way someone socialises, physical or mental health deterioration, or changes to work patterns, employment status or routes to work.

Finally, the perpetrator must know the behaviour will have a serious effect on their victim. S76(5) states the culprit “ought to know” the implications, in the same way a reasonable person in possession of the same information would know.

Relevant cases

In R. v Stickells [2020] EWCA Crim 1212, an appellant was unsuccessful against a sentence of 28 months’ imprisonment. The accused made it impossible for his partner to see her friends, did not allow her to speak to her mother about him, accused her of being unfaithful when she put on make-up or dressed up. He also threatened to kill himself when she asked him to leave, as he claimed he could not live without her. On another occasion, she asked him to leave, but he later returned and screwed the front door shut with a drill.

The serious impact of the conduct was demonstrated by the victim’s personal statement, where she detailed her fears to leave the house, and described herself as “shattered as a person” because the appellant had “broken” her. Her finances had been drained by the appellant’s drug habit and she feared she would be unable to put her trust in a relationship again.

In R. v Reynolds [2020] EWCA Crim 1024, an appellant was unsuccessful in appealing a sentence of two years’ imprisonment for controlling and coercive behaviour. He took his partner’s keys to the flat, attempted to isolate her from her family, checked her mobile phone and social media accounts and deleted all her old school friends from her Facebook account that were male.

In R. v Dalgarno [2020] EWCA (Crim) 290, the Attorney General deemed a sentence of a 24-month community order as unduly lenient. The offender checked his partner’s phone for messages from other men when she had taken her brother to hospital, dictated what she should wear, accused her of looking at other men and called her up to 70 times a day. The sentence was increased to three years’ imprisonment.

Domestic Abuse Bill reforms

As part of a major reform of the law surrounding domestic abuse, the Domestic Abuse Bill widened the circumstances in which the offence can be committed.

The definition of “personally connected” under s76(2) was widened so the offence may apply to former partners and family members who do not live together.

The s76 offence would thereafter cover circumstances where an agreement to marry or become civil partners has been terminated, where an intimate relationship has ended and where two parties have had a parental relationship in relation to the same child.

The bill would also insert a new s76A widening the territorial scope of the offence to include behaviour outside the United Kingdom, which would constitute an offence under s76 where the person is a British national or resident.

Anthony Burton and Mark Soames are partners at Simons Muirhead Burton smb.london