The topic of the offence of controlling and coercive behaviour has been discussed widely in the Press recently.
Section 76 of the Serious Crime Act 2015 created this relatively new offence. It has an obvious overlap with domestic abuse, sex, honour-based violence and stalking/harassment offences. This can at times lead to some confusion about how someone should be charged.
There is help in the CPS’ guidance.
What is counted as controlling and coercive behaviour?
The types of conduct that can be included is very broad, including psychological, physical, sexual, financial and emotional abuse.
The following points are worth bearing in mind if you are defending a controlling and coercive behaviour case:
1. It can only occur within the context of an intimate family relationship. Where the Defendant and complainant are separated at the time of the alleged behaviour, it ought to be charged as harassment, assault, etc.
2. Make sure that the nature of the behaviour alleged is properly detailed either in the Indictment or in some other document. Otherwise, there is a risk that a criminal trial segues into something that should be litigated in the Family court. A Defendant should not be tried simply for being an unpleasant person.
3. No conduct pre-dating 29th December 2015 can be included as part of the behaviour.
However, in theory it could form part of a Bad Character application. This is important, as by its very nature the offence occurs over a period of time.
4. Any behaviour that has already been the subject of other criminal proceedings (e.g. assault, harassment, etc) cannot be included as part of the offence.
5. The offence is not committed if the behaviour is reasonable in all the circumstances, or the Defendant genuinely believed it was in the best interests of the complainant.
6. It is an offence that cannot be committed against a person under 16 (s.1 of the Children and Young Persons Act 1933 is the appropriate charge).
7. The maximum sentence for the offence is five years. On conviction the Prosecution will almost certainly apply for a Restraining Order.
This is clearly an offence that is now being used to address what in the past would have been dealt with as assaults or harassment, so expect to see it increasingly charged.