From 29 December 2015, a person who repeatedly controls or coerces another in the context of a domestic relationship may be liable to up to 5 years in prison (under section 76 of the UK’s Serious Crime Act 2015).

The problem

The spike in the number of domestic violence cases around this time of year is depressingly familiar and takes place against a steep rise in the overall number of victims seeking support, according to available statistics.

The expansion of powers available to the Crown Prosecution Service in tackling domestic violence is to be welcomed, especially in light of the severe effects that such abuse (whether psychological, emotional or financial) can have on victims.

The solution?

Previously, the offences of stalking and harassment did not usually apply to non-physical forms of abuse in an ongoing relationship that is mutual and mostly affectionate. These offences would only apply if the harassment occurred after the relationship ended or if no mutual or affectionate relationship ever existed (see the Court of Appeal case of R v Widdows [2011] EWCA Crim 1500, which discussed the Protection from Harassment Act 1997 (‘PHA 1997’)).

The new offence closes this gap in the law by criminalising non-physical abuse in ongoing intimate relationships. It also toughens the penalties for offenders.

Under the PHA 1997, non-physical abuse attracted a maximum sentence of 6 months imprisonment (pursuant to section 2 PHA 1997). Now, offenders may face up to 5 years imprisonment where their conduct has caused serious alarm or distress and has had a substantial adverse effect on the victim’s everyday activities.

The new offence lacks a clear definition of “controlling or coercive behaviour”, (which is perhaps unavoidable given the variety the offence could be committed). Government guidance provides an explanation, but this definition lacks the force of law:

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: an 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.

Similar to harassment, each case is likely to turn on its own facts and in particular whether or not the behaviour was “reasonable” when looked at objectively. However, the breadth of these terms is likely to lead to legal challenges in future.

The government aims to “send a message” that this kind of conduct constitutes a serious offence, to deter perpetrators and enhance the protection of victims.

These are laudable aims, but there is more than a hint of hypocrisy here, given that the same government has slashed funding for women’s shelters, refuges and other dedicated support agencies, forcing some organisations to shut their doors to survivors of domestic abuse.

The new law cannot protect the person who, because of government cuts, has nowhere else to go and no access to support services.

Without the frontline support services that enable victims to get their lives back on track and to leave coercive, controlling or otherwise abusive relationships, the new law risks becoming an empty gesture.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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