The expansion of controlling and coercive behaviour: the implications for criminal and family law
Jessica Maguire and Katie Spooner discuss the impact on criminal and family law of the amendment to the offence of controlling and coercive behaviour
In December 2015, the Serious Crime Act 2015 introduced the criminal offence of controlling and coercive behaviour in an intimate or family relationship. For the offence to be committed, a person had to engage in behaviour towards another person that was controlling or coercive, where the individual knew or ought to have known that the behaviour would have a serious effect on the other person. Akin to the law on harassment, it required the person to fear on at least two occasions that violence would be used, or that it would cause them serious alarm or distress, which had a substantial adverse effect on their usual day-to-day activities. It also required that, at the time of the behaviour, A and B were ‘personally connected.’ As originally enacted in 2015, for two people to be considered ‘personally connected,’ the offence required that they had to (a) be in an intimate personal relationship, or (b) live together combined with either (i) being members of the same family, or (ii) have previously been in an intimate personal relationship.
On 5 April 2023, the Domestic Abuse Act 2021 amended the offence to expand the definition of two people being ‘personally connected.’ Now, two individuals are deemed to be personally connected if they are, or have been, married to each other, as well as being or having been in an intimate personal relationship with each other. The definition of ‘personally connected’ has also been expanded to cover those who have, or there has been a time where they have had, a parental relationship in relation to the same child, as well as if they are relatives. As a result, any offending behaviour committed after a relationship ends, when two individuals are separated or no longer living together, can now be considered controlling and coercive. This closed a lacuna and means that the law now focuses on the nature of the relationship itself, rather than the cohabitation requirement.
In our experience, the offence of controlling and coercive behaviour features as much in criminal proceedings as it does in family proceedings. The amendment will have a significant impact on both areas of the law.
From the perspective of a criminal lawyer
In the past three years, the number of offences of controlling and coercive behaviour recorded by the police in England and Wales has almost doubled. A total of 24,856 offences were recorded in the year ending March 2020, 33,954 offences in the year ending March 2021 and 41,626 offences in the year ending March 2022, according to figures from the Office for National Statistics. The expansion of the definition of ‘personally connected’ means that this trend will continue apace (although, of course, the law cannot be applied retrospectively and, therefore, historical complaints will not be captured by the amendment).
The amendment is likely to come as no surprise to criminal lawyers: it was always clear that the definition of ‘personally connected’ was ripe for reform. This was especially the case in the context of an acrimonious breakdown of a relationship, when those experiencing these types of behaviour post-separation and no longer cohabiting, were unable to make a criminal complaint.
But perhaps the most significant practical implication of the amendment is that the offence can now be committed by a relative who is not living with the complainant. This extends the offence into whole family networks, which may be rife with personal vendettas and enmities. For example, grandparents and siblings may now find themselves under investigation where they have been assisting in mediation or childcare arrangements, but where a family member considers that their behaviour in doing so is controlling or coercive.
This may seem far-fetched, but it is worth recalling that behaviours that qualify as controlling or coercive are open-ended. The Home Office published guidance in December 2015 which set out the numerous types of behaviour that could be captured by this offence. The Crown Prosecution Service (CPS) has also published a long but non-exhaustive list of examples. These range from isolating a person from their friends and family, taking wages, benefits or allowances, and threatening to hurt or kill. Much turns on the personal perception of the complainant, and in our experience, the police will frequently commence investigations on the basis of reports of highly subjective experiences.
However, while we are likely to see an increase in the number of those investigated for controlling and coercive behaviour, this does not necessarily mean that the number of prosecutions will rise at the same speed. When considering any prosecution, a prosecutor must apply the Code for Crown Prosecutors. This sets out a two-stage test which requires the CPS to consider: (a) whether there is sufficient evidence to provide a ‘realistic prospect of conviction’ and (b) whether it is in the public interest for the CPS to bring the case to court. In cases where controlling and coercive behaviour is alleged in the context of acrimonious divorce proceedings, the CPS will be less likely to intervene unless the behaviours are so grossly offensive that they require a prosecution. The CPS and court will want to ensure that the amendment to the legislation is not a tool to be used for purely strategic purposes in the breakdown of relationships and a way to gain a collateral advantage in divorce or family proceedings.
Even without a prosecution, however, the mere fact of a criminal investigation into controlling and coercive behaviour can have huge practical implications for parallel family proceedings. If the police determine that there is a reasonable suspicion that an individual has committed the offence, this will no doubt be relied on by the other party. Moreover, the person accused of being controlling or coercive is likely to be arrested. Once arrested, and for the duration of the investigation, they will remain on bail (with conditions) for a number of months. These conditions are likely to restrict contact between the parties (even in the context of parallel family proceedings), as well as prohibit unsupervised contact with children.
From the perspective of a family lawyer
The family court are regularly encountering cases where abuse has persisted long after the end of a relationship. Abuse often evolves post-separation and can become increasingly difficult to identify and mitigate. Post-separation abuse most commonly arises in situations where the victim and perpetrator maintain contact after the end of their relationship due to co-parenting responsibilities or ongoing financial obligations like spousal maintenance. An example being where the suspect is required to pay for their children’s school fees and threatens non-payment as a means of exerting control over the victim.
Where child arrangements or financial responsibilities are recorded in a court order, it is more difficult for a perpetrator to exert control over their ex-partner, but this can become more present in situations where there isn’t a court order setting out arrangements or clearly defining the responsibilities and obligations of the parties. It can also become an issue where the law perhaps doesn’t provide sufficiently for one party and, therefore, they are reliant on the ‘generosity’ of the other to meet their needs. This can occur following the breakdown of long-term cohabitations, as cohabiting couples do not have the same rights and financial claims as married couples, or where the cost of childcare and/or the children’s education, is more than any child maintenance calculation, creating a situation of financial dependency that can be used to exert control.
As discussed above, coercive control can be reported to the police, and it will be a matter for the CPS to decide if the suspect will be prosecuted, but protection from the family court can also be sought in the form of injunctions. Time will tell whether this change in the law will lead to an increase in these types of applications being made in the family court. The requirements for injunctive relief have remained the same and the effect of coercive control is often less immediate, and a pattern of abusive behaviour built up over a period of time. It is difficult to prove. However, as awareness of the widening circumstances which now constitute coercive and controlling behaviour increases, it is likely that victims will have more confidence in seeking help and protection through the family courts.
While this marks significant progress for the many survivors of coercive control, it is equally worth considering those who fall victim to false allegations of perpetrating such abuse. This can occur frequently when people are exiting toxic relationships, often because they are hurt or angry and the emotion from the breakdown of the relationship takes over. Sometimes it is used as a weapon for revenge, or to cause pain and suffering to an ex-partner. There is a risk, therefore, that the new legislation could see more people fall victim to false allegations.
It is crucial to recognise the need for a balanced approach to ensure the protection of both parties involved, encompassing both the victim and the suspect. The intense emotional ties that extend beyond the end of a relationship combined with the inherent vulnerability and heightened tensions can create an environment that is prone to the occurrence of abusive behaviour.
Now that it has been formally recognised that those who are not in a relationship or cohabiting with their abuser can be victims of coercive and controlling behaviour, victims may be more likely to speak up and rely on such behaviour within family law proceedings. It is important to acknowledge the possibility of allegations being weaponised and employed as a strategic tactic, particularly in proceedings concerning arrangements for the care of children. Great care will need to be taken when dealing with allegations so as to ensure that a fair outcome is reached.
It is evident from both analyses that the amendment is an important change for both criminal and family lawyers. It will undoubtedly increase the number of allegations by offering an opportunity to those who are no longer in relationships, or those who are suffering from abuse by a family member they do not live with, to be able to seek assistance from the police. The question will be the extent to which the police, the CPS and the courts will guard against the expanded offence being deployed as a useful tool between parties in divorce or family proceedings.
It may be that in the not-too-distant future we see a further amendment to the legislation which may take the offence a step further away from harassment to ensure that there is no overlap, especially when investigating those who are now by law covered as being ‘personally connected’ but at risk of false allegations in the context of family disputes. This may be conducted by the removal of the offence being committed if it causes alarm or distress, leaving only the requirement of an alleged victim having to fear violence on more than two occasions, which would ensure the legislation is effective for those who are no longer in a relationship but are subjected to the worst types of controlling and coercive behaviour which is likely to have been the main aim of the amendment.