CONTROLLING OR COERCIVE BEHAVIOUR INAN INTIMATE OR FAMILY RELATIONSHIP:
THE LIMITED DEFENCE
Recently, Ms GROSVENOR and her supervisor Mr LEWIN were involved in a case which involved a charge of controlling and coercive behaviour in an intimate relationship. The facts of which, unusually, gave rise to a statutory defence available in very limited circumstances. In this article, Ms GROSVENOR examines the offence and how the defence applies.
THE LAW
Controlling behaviour is defined as “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 defined “as 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
The offence of controlling or coercive behaviour in an intimate or family relationship is found within section 76 of the Serious Crime Act2015. The offence is committed if a person/suspect:
· repeatedly or continuously engages in behaviour towards another person that is controlling or coercive; and
· at the time of the behaviour the persons are personally connected (such as in an intimate relationship or previously having been in an intimate relationship);and
· the behaviour has a serious effect on the other person; and
· the suspect knows or ought to know that the behaviour will have a serious effect on the other person
The relevant behaviour of a suspect could include:
· Isolating the person from friends and family
· Controlling where the person goes / preventing them to go to school or work
· Controlling the person’s finances
· Controlling their diet, clothing, sleep pattern and medication (or lack of)
· Depriving them access to support or medical services
The behaviour is shown to have caused a serious effect in two ways:
1) that it caused the other person to fear, on at least two occasions, that violence will be used against them; and/or
2) that it caused the other person serious alarm or distress which has a substantial adverse effect on their day-to-day activities.
In relation to the second way only, there is a specific defence available. It is outlined within section76 (8) – (10) of the Serious Crime Act 2015. This defence is not available where the serious effect is said to have occurred through fear of violence being used against the complainant on at least two occasions.
THE LIMITED DEFENCE
It is a defence if the defendant can show that he/she believed that they were acting in the best interests of the complainant. Further, the behaviour in question must be reasonable in all the circumstances.
The defendant only needs to raise sufficient evidence that they believed this. The defendant does not need to prove anything. He/she only needs to raise sufficient evidence to allow for the matter to be considered by the jury. Once the evidence has been raised, the burden of proof ‘returns’ to the prosecution. It is similar, therefore, to self-defence in violence cases.
The prosecution must prove beyond reasonable doubt that the defence has not been made out: that the defendant did not believe that he/she was acting in the best interests of the complainant and that the behaviour in question was not reasonable in all the circumstances.
Furthermore, the court’s test of reasonable behaviour is objective, not subjective. It is whether a reasonable person, given the same circumstances, would have done the same.
COMMENTARY
A defendant will need to raise sufficient evidence that they believed that they were acting in the best interests of the complainant. This could be achieved in a number of ways and needs to illustrate that the complainant had freedoms and/or control.
For example, by providing the following types of evidence:
· Emails
· Phone records
· Text messages
· Internet posts/messages
· Photographs
· CCTV
· Medical records
· Bank records
· Witness evidence
The explanatory note to the offence, dated 3rd March 2015, states that this defence is intended to cover circumstances such as when a suspect is a carer for a mentally ill spouse and by virtue of the spouse’s medical condition, they have to be kept at home or compelled to take medication for their own protection and/or in their own best interests. In this context, the suspect’s behaviour is seemingly controlling but it would be reasonable given the circumstances.
For avoidance of doubt, the defence would be available in circumstances other than a carer and mentally ill spouse relationship. For example, it could apply to circumstances where the defendant acts in a quasi-carer capacity and the complainant is a victim of sexual or physical abuse at the hands of another. It would entirely depend on the circumstances of the case and the behaviours which the defendant is alleged to have committed.
For further information see the Home Office Statutory Guidance Framework here.
