About seven years ago, section 76 of the Serious Crime Act 2015 created an offence of ‘controlling or coercive behaviour’. The purpose of the legislation was to offer a further layer of protection for victims of domestic abuse by criminalising conduct that causes harm. As per the Statutory Guidance, the offence “closes a gap in the law around patterns of controlling or coercive behaviour in an ongoing relationship between intimate partners or family members.” Undoubtedly, that is an important “gap” to close, however it is worth evaluating whether s. 76 has succeeded in fulfilling its purpose.
Outside of the sphere of criminal justice, there has been recognition for decades by mental health practitioners and organisations supporting victims that intimate partner violence involves coercive control. The legislation criminalising coercive control was seen by some as a beacon of hope for victims. Yet it remains misunderstood and controversial among practitioners and lay people alike. This article will critically evaluate the challenges posed by section 76. The potential for coercive control to become a defence will also be considered in the wake of R v Challen  EWCA Crim 916.
Confusing or cumbersome?
Part of the difficulty stems from the overlap with family proceedings. It is often the case that criminal charges of controlling and coercive behaviour are made alongside family proceedings. There can be overlap of evidence and issues of cross-admissibility. A criminal trial alongside acrimonious proceedings in the family courts may have the effect of blurring the line between conduct that is criminal, and conduct that should lead to an adverse finding in the family court.
The confusion also stems from the broad scope of conduct associated with ‘controlling or coercive behaviour’. The nature of coercive control means it can encompass conduct that is as subtle as a threatening word or a meaningful look. The more subtle behaviours often occur within the context of years of abuse alongside instances of violence and sexual violence intended to ‘punish’ the victim for what is perceived as non-compliance. It can be challenging to recognise which acts cross the threshold into criminality, and when it is in the public interest to prosecute.
The elements of the offence: What is controlling and coercive behaviour?
For the purposes of this article, the focus will be on the meaning of ‘controlling or coercive’ and ‘personally connected.’
Section 76 states:
A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards another person (B) 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 that the behaviour will have a serious effect on B.
This term will be addressed first, as despite being recently amended, it is largely straightforward. The definition can be found in section 2 of the Domestic Abuse Act 2021 which entered into force from 1 October 2021 and amended the previous definition in section 76 of the 2015 Act. Section 2 of the 2021 Act provides the following definition:
(1)For the purposes of this Act, two people are “personally connected” to each other if any of the following applies—
(a)they are, or have been, married to each other;
(b)they are, or have been, civil partners of each other;
(c)they have agreed to marry one another (whether or not the agreement has been terminated);
(d)they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(e)they are, or have been, in an intimate personal relationship with each other;
(f)they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (2));
(g)they are relatives.
The effect of the amendment was to remove the need for co-habitation. The reasoning behind the amendment was an understanding that coercive or controlling behaviour can occur and even escalate after a relationship has ended.
As stated by Victoria Atkins, Minister for Safeguarding:
“We recognise that coercive or controlling behaviours may escalate following separation, and that members of a victim’s extended family may be involved in control or coercion… This amendment will bring the controlling or coercive behaviour offence into line with the statutory definition of domestic abuse in clause 1 of the Bill and send a clear message to both victims and perpetrators that controlling or coercive behaviours, irrespective of living status, are a form of domestic abuse.”
“Controlling and coercive”
The difficulty lies in identifying behaviour that qualifies as ‘controlling or coercive’. To this end, a 24-page guidance document was published by the Home Office in December 2015 titled “Controlling or Coercive Behaviour in an Intimate or Family Relationship Statutory Guidance Framework”. The CPS also offers guidance on the offence giving examples of conduct that can be chargeable in the context of the offence. These examples are drawn from the Home Offence guidance and are compiled in a non-exhaustive list of 25 encompassing a broad spectrum ranging from monitoring a person’s time to threats to kill and assault.
As this is a ‘course of conduct’ offence, the broad scope of acts that can be charged poses a challenge of recognising at which point in time the behaviour crosses the threshold to criminality.
To further complicate matters there is a distinction between ‘controlling’ and ‘coercive’. The guidance offers the following definitions for the terms ‘controlling’ and ‘coercive’:
For domestic abuse support workers, it is challenging to objectively establish if coercive control is present. A perpetrator will typically use signals and covert messages to exert and maintain control. Often these have meaning only in the context of that particular relationship. For example, the perpetrator may use a specific look, phrase or movement to convey to a victim that they are breaking an unspoken rule. Following unofficial “rules” about dressing, shopping or cooking to avoid ramifications may seem voluntary to an outsider that does not understand the relationship dynamics.
Reconsidering Challen: Coercive control as a defence?
Many will associate the legislation with the case of R v Challen  EWCA Crim 916. At the time there was considerable media coverage regarding the Challen appeal connecting it with coercive and controlling behaviour.
One may be forgiven for assuming that the criminalisation of ‘controlling and coercive behaviour’ was contemporaneous with Challen. Yet, ‘controlling and coercive behaviour had been an offense for a number of years prior, as section 76 came into force on 29 December 2015.
That being said, ‘controlling and coercive behaviour’ was not an offence when Challen was first convicted in 2011. Submissions were put forward on behalf of the appellant that at the time of her conviction, controlling and coercive behaviour was not sufficiently understood by both legal and mental health practitioners. At the trial of first instance, Miss Challen had unsuccessfully raised the defence of diminished responsibility. On appeal, the argument was that a new understanding of coercive control meant there was fresh evidence available in the form of expert evidence that had not been available at the trial of first instance. In other words, Challen was a victim of controlling and coercive behaviour and her protracted exposure to this conduct had a severely detrimental effect on her mental health which was not properly understood at the time of her conviction.
It was not necessary for the court of appeal to decide whether or not the deceased, Miss Challen’s former partner, would have been guilty of the offence of coercive control. The court of appeal focused principally on the proper understanding of the diagnosis of Miss Challen. As a result Miss Challen’s conviction was quashed and sent for retrial. Her plea on the basis of diminished responsibility was then accepted. Following the appeal, questions were raised about the implications for cases of a similar nature.
Clara Wade QC who was lead counsel for Challen was among those who have highlighted domestic abuse as a prevalent cause for violent offending by women against male partners. In a 2020 article in “Counsel Magazine”, Wade concluded: “Set against this background, recent calls for a new defence which would apply in circumstances where certain offending is a direct consequence of domestic abuse, make good sense.”
A new defence in law may not be necessary. It may be that existing defences in law such as diminished responsibility or loss of control in the context of murder, or self-defence in the context of assault can be more widely interpreted to encompass scenarios where victims of coercive control attack a perpetrator. However as with any defence, caution must be exercised as it would not be in the public interest to have a blanket defence for acts of violence.
Charging, convicting and defending a ‘bespoke’ offence in numbers
Coercive control has been described by Wade QC as “a ‘bespoke’ abuse in the sense that the perpetrator will tailor the control to his victim’s specific vulnerabilities. In an intimate relationship, such vulnerabilities are obviously known to the perpetrator.”
If the behaviour is ‘bespoke’, then the offending patterns will be varied. The question that arises is how legislation can account for abuse that is ‘tailor-made’. For criminal practitioners, this poses obvious challenges to dealing with coercive control. The numbers in terms of recorded offences, charging and conviction rates show a mixed record.
In a May 2021 the Home Office published a review of the offence. The report found an increase in recording of offences. Comparing the number of ‘controlling or coercive offences’ recorded in 2016-2017 with those recorded in 2019-2020, the numbers have more than quadrupled. In terms of prosecution, 2019 witnessed an increase of 18% from the previous year. The average length of custodial sentences have been longer compared with those for assaults, the most common domestic abuse-related offences recorded. In terms of conviction rate, where defendants were charged with controlling or coercive behaviour as the principal offence, there has been a rise from 38% in 2016 to 60% in 2018, whereas in 2019 there was a slight decrease to 52%.
The Pandemic and Beyond
The Home Office review of the offence does not account for the impact of the pandemic. The imposition of various lockdowns has lead to a stark rise in instances of domestic violence. When comparing the first quarter of 2020 with the second quarter when lockdown was imposed, the Office of National Statistics records a 64.7% increase in calls to National Domestic Abuse Helplines, and a staggering 700% increase in web platform visits to the same.
These numbers would suggest that a vast number of domestic abuse prosecutions are in the pipeline, including controlling or coercive behaviour. Therefore, it is crucial to find a way to navigate the challenges of this offence.
The nature of the offence raises questions as to what sort of conduct within the private or intimate sphere should be criminalised. For victims, the hurdles of reporting an offence, giving evidence and interacting with the criminal justice continue to be high. From a public interest perspective, it remains an unanswered question whether a ‘course of conduct’ approach is adequate or if prosecuting each incident individually is preferable.
In conclusion, the legislation on its own appears to fall short of fulfilling its purpose. Perhaps the solution lies in increased training for law enforcement officials in recognising coercive control, and more readily available information and resources for victims. If high rates of intimate partner violence are not impetus enough to trigger the alarm bells, perhaps the case of Challen holds a further lesson. Instances of victims of prolonged abuse attacking their abuser are not uncommon. Had Miss Challen been able to report the abuse and access support, perhaps the tragic repercussions that followed could have been avoided.
This article on the ‘Controlling or coercive behaviour’: Is the law fit for purpose? was written by Ruba Huleihel. To enquire about instructing Ruba or any other member of our Criminal Team, please contact our clerking team via our switchboard on 01962 868 161 or email: firstname.lastname@example.org