Jo Morris and Fiona McAddy, Church Court Chambers

Section 76 of the Serious Crime Act 2015 creates a new offence of ‘coercive control’, designed to criminalise those who abuse their partners psychologically.  This legislation is, at once, both noble and short sighted.  The Crown have created an offence that is difficult to prove and may act as a weapon in the arsenal of a vexatious accuser seeking revenge.  The goal of protecting genuine victims from abuse is unlikely to be met by s.76 and the scope for abuse is concerning; those who defend in these proceedings must do so robustly.

S.76(1) sets down that a person commits an offence if he

(a) repeatedly or continuously engages in behaviour towards another person that is controlling or coercive;

(b) at the time of the behaviour, A and B are personally connected;

(c)  the behaviour has a serious effect on B; and

(d)  A knows or ought to know the behaviour will have a serious effect on B.

S.76(4) contains a definition of ‘serious effect’.  It sets down that behaviour has a serious effect if;

(a) it causes B to fear, on at least two occasions, that violence will be used against B; or

(b) it causes B serious alarm or distress which has a substantially adverse effect on B’s usual day to day activities.

These are inclusive terms and there are complainants who will try to bring normal relationship disputes within the definition.  The defence must be alive to the input of domestic violence support workers who are likely to bring this offence to the attention of accusers.

Defence statements should seek disclosure of any contact with support workers and, if necessary, third party disclosure from the organisation of any details of their conversations.  Previous inconsistent statements may be found therein.  In particular, any note from support workers of ‘substantial adverse effect’ upon complainants should be scrutinised vigorously.

Guilty pleas must not be encouraged merely because there are complaints that a suspect is unpleasant.  There is no definition of ‘coercion or control’ in the Act;  it appears to arise from the clause governing ‘serious effect’ which will almost always be open to challenge.  Vague allegations will not be sufficient and even specific ones can collapse under cross examination.

These difficulties do not simply exist for the defence.  The Crown will find it problematic to establish ‘control’.  The fact that a defendant may be an unreliable partner does not render him guilty of ‘coercive control’.  Allegations will need to be properly particularised and evidenced.  Although complainants may well have grievances with their former partners, they will struggle to point to specific incidents which meet the criteria in S76(4).  In fairness to Parliament, the legislation is drafted in a way that seeks to exclude the personal disputes with which we all struggle.  The Crown must show ‘coercive control’ against a defendant not just that he is a bad partner.  Further,  the wording of S76(1)(d) that ‘A [must] know or ought to know that the behaviour will have a serious effect on B’ seeks to protect defendants from both the allegations of an ‘egg shell’ partner.

Moreover, inconsistent behaviour on the part of the complainant will be very useful.  Consideration should be given to seeking the telephone and social media records of the complainant.  If she has been making contact with the defendant, or if the contact is as abusive as his own then that will undermine her allegation.  The mere fact that a complainant is able to post on social media or send messages relating to daily matters at all may go some way to weakening an allegation that she is the subject of coercive control.  A detailed and precise defence case statement will be key to defending these allegations.

It is our responsibility to mount an effective challenge to prosecutions under this Act in order to prevent miscarriages of justice.  Abuse can be perpetrated in many ways; one is to use violence and another is to control psychologically.  A further way to abuse is continually to use the threat of reports to the police to keep a person in a relationship he wishes to leave or to control his actions therein.  Such an accuser must be met with a vigorous challenge.  If defendants are acquitted of an allegation then consideration should be given to whether they should seek protection from their accuser under the civil law.  If allegations that are without merit continue then the defence should advise the defendant to consider an action in civil harassment.  All those who practise in this area will be familiar with the case of Waxman which established that making repeated allegations against a person  can amount to harassment.