Controlling and coercive behaviour

Solicitors specialising in defending allegations of controlling and coercive behaviour (London & Manchester)

The specialist team at Olliers frequently represents clients facing allegations of controlling or coercive behaviour. This is a sensitive area of law and the investigations are often linked to allegations of assault or domestic abuse. By the very definition of the offence there is usually a lot of background to the matter and invariably there are two sides to the story.

Allegations may date back over extended periods, they are rarely one off events and they may be combined with allegations of physical, sexual, psychological, emotional or financial abuse. Frequently allegations of domestic abuse run alongside other issues between the parties, for example separation, divorce, issues in relation to children, finances or third party relationships.

At Olliers, we understand the complexity of cases involving allegations of domestic abuse.  We appreciate that matters are rarely as straightforward as may be initially be presented by police or prosecutors who will inevitably have only one side of the story.

We are frequently contacted by clients who have been asked to attend a voluntary interview.

If a client was interviewed under arrest we may be contacted once they are on bail or released under investigation.

The pre-charge stage of the case is absolutely crucial. It is the opportunity for the defence to go on the front foot adopting a proactive approach to pre-charge engagement with investigators.

At Olliers, we will always look to make successful representations against charge and prevent clients being prosecuted in the first place something we discuss in more detail here.

Our clients frequently include professionals with no prior involvement with the criminal justice system and it may be the first time they have been arrested.  We have many years experience of representing doctors, medical professionals, other lawyers, teachers, FCA regulated professionals, and high net worth individuals. We understand the importance for our clients of avoiding a prosecution.

What is controlling or coercive behaviour?

The Government definition provides:

Coercive behaviour is an act/pattern of acts including assault, threats, humiliation and intimidation or other forms abuse used to harm, punish, and frighten the complainant.

Controlling behaviour is an array of acts considered to make an individual feel subordinate and/or dependent by isolating them from support, abusing resources and capacities for personal gain, taking their independence, and regulating daily behaviour.

Section 76 of the Serious Crime Act 2015 – Controlling or Coercive Behaviour in an Intimate or Family Relationship

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

There are four elements to the offence:

• repeated or continuous behaviour towards another , that is ‘controlling or coercive’; and
• at the time of the behaviour, the individuals are ‘personally connected’; and
• the behaviour has a ‘serious effect’ on the other person, and 
• the individual knows or ‘ought to know’ that the behaviour will have a ‘serious effect’ on the person. 

Personal connection

S.68 of the Domestic Abuse Act 2021 came into force on the 5^th April 2023. This essentially amends and widens the definition of ‘personal connection’.

After 5^th April 2023, for A and B to be ‘personally connected’ any of the following must apply:

• they are, or have been, married to each other;
• they are, or have been, civil partners of each other;
• they have agreed to marry one another (whether or not the agreement has been terminated);
• they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
• they are, or have been, in an intimate personal relationship with each other;
• they each have, or there has been a time when they each have had, a parental relationship in relation to the same child
• they are relatives.

Therefore, if they are separated or if they are members of the same family, the complainant and defendant no longer need to have been cohabiting when controlling or coercive behaviour occurs.

This means that controlling and coercive behaviour can take place post-separation or by a family member who does not live with the victim.

The amendment of this offence now encompasses a much wider definition of whom the offence will apply which could potentially lead to a greater number of prosecutions. This new definition will apply to behaviour that occurs after 5^th April 2023.

Serious effect

There are two ways in which it can be proved that an individual’s behaviour has a ‘serious effect’ on a person:

If it causes that person to fear, on at least two occasions, that violence will be used against them, or

If it causes that person to fear serious alarm or distress which has a substantial adverse effect on their day-to-day activities.

Repeated or continuous behaviour

The behaviour concerned is required to be ‘repeatedly’ or ‘continuously’. An additional, separate, element of the offence is it must have a ‘serious effect’ on someone. This can be proved if it causes someone to fear, a minimum of twice, that violence will be used. Activity need not be of the same nature. The prosecution should show intent to control or coerce a person.

Relevant Behaviours

A pattern of controlling or coercive behaviour could be long established before it is reported. Conduct may seem innocent, in isolation and the complainant may not be conscious of abusive behaviour. Attention must be paid to the overall impact of controlling or coercive behaviour and the pattern of behaviour in the context of the relationship is important. Prosecutors can then assess if a pattern of behaviour amounts to fear of violence, or serious alarm or distress causing a substantial adverse effect on usual everyday life.

Relevant behaviour can include:

• isolating a person from friends and family
• depriving of basic needs
• monitoring time
• monitoring a person via online communication tools/ spyware
• using digital systems including use of social media to coerce, control, or upset the victim
• taking control over aspects of their everyday life and ‘rewarding’ ‘good behaviour’ e.g. with gifts
• depriving access to support services including medical services
• repeatedly putting them down
• enforcing rules and activity which humiliate, degrade or dehumanise
• forcing the victim to take part in criminal activity
• economic abuse including coerced debt, controlling spending/bank accounts/investments/mortgages/benefit payments
• controlling the ability to go to school or place of study
• taking wages, benefits or allowances
• threatening to hurt or kill
• threatening to harm a child
• threatening to reveal/publish private information
• threatening to hurt or physically harming a family pet
• assault
• physical intimidation
• criminal damage
• preventing a person from having access to transport or from working
• preventing a person from learning or using a language or making friends outside of their ethnic/cultural background
• family ‘dishonour’
• reputational damage
• sexual assault or threats of the same
• reproductive coercion, including restricting a victim’s access to birth control, refusing to use a birth control method, forced pregnancy, forcing a victim to get an abortion, to undergo in vitro fertilisation (IVF) or denying access to such a procedure
• using substances such as alcohol or drugs to control a victim through dependency, or controlling their access to substances
• disclosure of sexual orientation
• disclosure of HIV status without consent
• limiting access to family, friends and finances
• withholding and/or destruction of the victim’s passport or visa
• threatening to place the victim in an institution against the victim’s will, e.g. care home, supported living facility, mental health facility, etc (particularly for disabled or elderly victims

This above is not exhaustive.

The CPS updated their guidance on 24th April 2023 including adding ‘love bombing’ to the guidance. Click here to read more.

Substantial adverse effect

A substantial adverse effect on a person’s usual day-to-day activities’ may include, but is not limited to:

• preventing or affecting the way someone socialises
• decline in physical/mental health
• altering routine at home including mealtimes or domestic responsibilities
• attendance record at school or college
• introducing measures at home to safeguard themselves/children
• changes to work patterns, employment or routes to get to work

‘Ought to know’

For the purposes of the offence an individual ‘ought to know’ that which a reasonable person in possession of the same information would know.

Which court will controlling and coercive behaviour be heard in?

The offence is ‘either way’ which means it can be dealt with in the Magistrates Court or the Crown Court, depending on seriousness and in some circumstances the choice made by a defendant. For an either way offence, the last incident is not required have happened in the previous six months. Offending in a domestic abuse environment is an aggravating factor due to the abuse of trust involved.

Sentencing 

In the Magistrates’ Court, a person convicted of controlling and coercive behaviour faces imprisonment for a term not exceeding 6 months, or a fine, or both.

In the Crown Court, a person convicted of controlling and coercive behaviour faces imprisonment for a term not exceeding five years, or a fine, or both;

Ancillary orders

Appropriate ancillary orders can be applied for upon sentence or acquittal, this could include restraining orders. Prosecutors should liaise with the police to obtain the complainant’s views prior to an application being made.

What defences might be available?

It is a defence to show that in engaging in the behaviour in question, an individual believed that they were acting in the other person’s best interest; and the behaviour in all the circumstances was reasonable.

This defence is not available in relation to behaviour that causes a person to fear on at least two occasions that violence will be used against them.

How can Olliers help me?

During the investigation stage of the case, we will liaise with police in a sensitive manner.  Where an allegation is denied we will ensure that our client’s case is presented meticulously.  If the matter proceeds to court we will ensure that no stone is left unturned in the defence of our client. Cases of a domestic nature can often involve limited supporting evidence and result in the account of the complainant versus the account of the defendant. Click here to read more about how we deal with such cases at the pre-charge investigative stage.

Some frequently asked questions