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COVID-19 UPDATE: We would like to reassure people that Kang & Co Solicitors is fully operational during the current international health crisis.
Case meetings after being appointed will be conducted via either a phone or video conference to comply with government instructions.

Many criminal prosecutions result from incidents of violence and abuse in the home with offences ranging from common assault and criminal damage right up to, sadly, murder itself.

The Crown Prosecution Service (“CPS”), which prosecutes most criminal offences in England and Wales) has published guidelines which provide that domestic violence and/ or abuse describes controlling and coercive behaviour used by one person over another they have (or have had) an intimate or family relationship with. It is recognised that such behaviour may take different forms including being psychological, physical, sexual, financial and/ or emotional.

Since December 2015, a new offence of controlling or coercive behaviour in an intimate or family relationship has applied under section 76 of the Serious Crime Act (“SCA”) 2015. In April 2018, a 22-year-old woman was convicted of this offence along with offences of wounding her boyfriend with intent and causing him grievous bodily harm with intent. She was sentenced to seven and a half years’ imprisonment.

Controlling or Coercive Behaviour Offences

This offence can cover situations where there has been a pattern of controlling and coercive behaviour over a period of time when perhaps individual incidents would not of themselves be enough to give rise to another offence.

For someone to be guilty of the section 76 SCA 2015 offence, the CPS must prove that the accused person:

  • Repeatedly or continuously engaged in behaviour towards the complainant that is controlling or coercive. Therefore, whilst behaviour by the accused on a single occasion is not sufficient there is no requirement for the behaviour to involve any threat of (or actual) physical harm either. The CPS guidance adopts the following definitions:
    • Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependant 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 assaults, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”
  • Was personally connected to the complainant at the time of the behaviour. This includes situations where they had an existing intimate personal relationship or otherwise lived together as members of the same family or after having previously been in an intimate personal relationship. The definition of family is wide covering marriage and civil partnership (including being engaged), and being parents of the same child. Where no such personal connection exists then no offence under section 76 will have been committed. The offence does not apply where the complainant was under 16 at the time of the behaviour although other offences may do so.
  • Knew (or ought to know) their behaviour would have a serious effect on the complainant and the behaviour did have a serious effect upon them. Behaviour will have a serious effect where:
    • It causes the complainant to fear, on at least two separate occasions, that violence will be used against them by the accused or someone else; or
    • It causes the complainant serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities.

An accused need not have intended any serious effect by their actions. However, they will be taken as having been ought to know their behaviour would have such an effect on the complainant in circumstances where another reasonable person, in possession of the same information as the accused, would think that to be the case.

Defences

Section 76 SCA 2015 provides for a defence to an allegation where, by engaging in the behaviour, (a) the accused believed they were acting in the complainant’s best interests and (b) the accused’s behaviour was in all the circumstances reasonable. This will be judged by the court on the individual circumstances of the case but cannot apply where the accused’s behaviour caused the complainant to fear that violence would be used against them. 

Sentencing 

The offence can be tried in the Magistrates’ Court or by a jury in the Crown Court. The maximum sentence is one of five years’ imprisonment and/ or a fine in the Crown Court although the relevant sentencing guidelines for offenders aged 18 and over suggests a range of sentences between a community order up to four years’ imprisonment.

In the case of Vidgen [2018] EWCA Crim 2385, a man had been sentenced to 13 months’ imprisonment for coercive behaviour towards his wife and a further 9 months’ imprisonment each for separate and discreet offences of assault occasioning actual bodily harm and sending a malicious communication (31 months’ imprisonment in total). The Court of Appeal upheld the sentence finding there had been nothing wrong in the decision to impose the sentences consecutively. In the recent case of R v Katira (Tarang) [2020] EWCA Crim 89, a husband was sentenced to 22 months’ imprisonment for a section 76 SCA 2015 offence involving five incidents spanning a nine-month period. His behaviour had involved making threats, grabbing, slapping, hitting and throwing objects at his wife. His appeal succeeded in so far as his sentence was reduced to 15 months’ imprisonment after the Court of Appeal had found (amongst other things) that five occasions of behaviour did not make the case one of higher culpability as the sentencing judge had initially concluded.  

[1] DEFRA (Department for Environment, Food and Rural Affairs) and FSA (Food Standards Agency) Guidance on the Application of Date Labels to Food (September 2011).

Christopher Hopkins

Christopher Hopkins

Barrister

Christopher Hopkins is a specialist regulatory barrister at No5 Chambers in Birmingham with many years’ experience of both defending and prosecuting organisations and individuals for H&S offences in the criminal courts. He also regularly represents organisations and individuals at Coroner’s Inquests.

View Christopher Hopkins full profile.

 

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Kang & Co Solicitors is a truly specialist high-end law firm providing legal advice and representation for all matters involving Criminal Law, Driving Offences, Transport Law, Pace Interviews, Regulatory Law and Licensing Law.

Our head office is located at 1 Victoria Square in Birmingham City Centre and we offer our services throughout England and Wales on a private fee-paying basis. We also have an office at 5 Chancery Lane in London and another office in central Milton Keynes. We are frequently instructed by individuals and businesses nationwide.

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