“Our new coercive or controlling behaviour offence will protect victims who would otherwise be subjected to sustained patterns of abuse that can lead to total control of their lives by the perpetrator”.
These are the words of Karen Bradley, formerly the Minister for Preventing Abuse and Exploitation, after the implementation of Section 76 of the Serious Crime Act 2015 which was passed on 29th December 2015. The spotlight on domestic violence always attracts debates, especially with the recent story line in The Archers on Radio 4. However, has the new offence really protected and safeguarded victims of domestic violence, and has it been effective?
The legislation means it is an offence if person A repeatedly or continuously engages in behaviour with person B that is controlling and coercive. At the time of the behaviour, the perpetrator and victim must be personally connected. For example, they are in an intimate relationship, live together and are family members, or have previously lived together in an intimate personal relationship. Crucially, the law makes it clear that the behaviour must have a serious effect on the victim and the perpetrator knows or ought to have known that the victim would have suffered a serious effect on him or her. So, what constitutes a ‘serious effect’? Under section 76 (4)(a), two incidents which cause the victim to fear through violence would suffice, or under section 76 (4)(b) a perpetrator’s actions to the victim that causes serious alarm or distress and has a substantial adverse effect on their day-to-day lives.
Examples of the types of coercive and controlling behaviours include isolating a person from friends and family and monitoring the victim’s movements. There is no doubt the government has taken this law seriously with the offence carrying a maximum of five years in prison and can be heard in the magistrates’ court or the crown court. Therefore, those who are found guilty or plead guilty to this offence will face a serious penalty.
According to a recent Freedom of Information request, statistics show that in the first six months, nine police forces were yet to charge a single person under the offence. Most police forces excluding Kent, Hertfordshire and Norfolk have charged fewer than two coercive control actions between the period of December 2015 and June 2016 and eight out of twenty-two police forces in England and Wales have not charged a single person with the offence. This is in despite of domestic violence incidents increasing in the last few years. According to the Citizens Advice Bureau, 1,500 people have needed assistance with domestic violence incidents between July and September 2015, which is a rise of 24% in the same period in the previous year.
What are the reasons for the police forces and Crown Prosecution Service not charging? Theresa May, when she was Home Secretary in May 2016, stated the new powers were “not being used anywhere near as systematically as they could be”. So, is it the case that the police and the Crown Prosecution Service have not got sufficient procedures in place to deal with this demand? Or are they not confident to use this new legislation? Certainly, as defence solicitors, with charging rates being lower than in previous years, it is not surprising that few are being charged with this offence, however, the statistics display a different story. From our experience, Surrey Police take domestic violence cases very seriously to the point that even if the victim withdraws his or her statement after, for example, being allegedly assaulted the Crown Prosecution Service will still take the case to trial.
In conclusion, it would seem that there is still a long way to go before the law protects the very vulnerable in our society. A lot of the evidence that must be produced come from the victim themselves, for example, personal evidence such as diaries and emails records. The Crown Prosecution Service, in our opinion, is far more likely to charge someone where injuries of an assault can be seen rather than the perpetrator ‘playing mind’ games on the victim.
If you are suffering from domestic violence then our advice would be to make sure you call the police, even if you do not think it is urgent. The non-urgent police number is 101 and you will receive a reference number after you have reported it. Please keep you reference number should further incidents occur. Our advice would also include keeping diaries of incidents, pictures and even video footage should you be able to do this.
We also assist victims who give evidence in criminal proceedings. We have clients that tell us that they cannot get hold of the Crown Prosecution Service and do not know what the procedure is at court and we can provide additional support.
Alternatively, if you are in fear that you are being alarmed, harassed or pestered by anyone, then you may think about applying for a Non-Molestation order with or without notice to the perpetrator in the Family Court. A Non-Molestation order prevents a person associated to you from causing you distress, violence, and harassment and can exclude the perpetrator from attending your address. You will need to complete an application form and attach a statement with the incidents that have caused you concern. Please do get in touch with us where will be able to advise you further, or if you have any further questions.