Controlling and Coercive Behaviour
Picture the scene; Stephen and his wife had been married for 20 years, they had well paid jobs, two children in private education and a lovely family home. Life was good.
But for Stephen, time was running out on his marriage. He didn't know it yet, but in just a few months’ time he would find himself off work, without a home, no access to his children, facing a Crown Court Judge and personal, financial and emotional ruin.
There had been another row at home. Angry, viscous words, what was it about? You do not have to say anything but it may harm your defence if you fail to mention when questioned something that you later rely on in court. Anything you do say may be given in evidence.
Stephen had never been in a police cell, he wasn't that sort of person. And what did Controlling and Coercive Behaviour have to do with anything? It must be a mistake, a nightmare for sure. He had never had a police interview. Or bail conditions. So he wasn't expecting the character assassination from his wife. Yes they were having a rocky patch and she had mentioned divorce. But they were mature, sensible adults. He wasn't expecting the withering, cynical stare from the investigating police officer across the table. Or the worldly, apathetic shrug of the desk sergeant. They all say that.
You must not contact directly or indirectly your soon-to-be ex-wife, or your children. You must not go to your home. Why? Because your soon-to-be ex-wife has alleged that you have been controlling and coercive.
Stephen's case was an example (a real example, with details altered here to protect those involved) of the relatively new offence of Controlling and Coercive Behaviour. It was created in 2015 to tackle aspects of domestic violence that had otherwise been beyond the scope of the criminal law. The offence has been little used by police or the CPS, after the political fanfare surrounding it coming into force. Detailed statistics haven't yet been made public, but there have been only a handful of prosecutions. Most criminal defence solicitors will never have dealt with such a charge.
Domestic violence is abhorrent in all its forms. Perpetrators maybe male or female, although the vast majority of criminal defendants are male. It is absolutely right that domestic abuse is rooted out and brought into the glare of the courtroom. No person need be battered and bruised (or worse) before the criminal law will intervene. Abusive control is at the heart of domestic violence, a profound breach of the trust implicit in any relationship to be respected and safe.
It is clear that the new offence was designed to fill a loophole where such abuse and control fell short of a criminal assault and could not sensibly be shoehorned into a charge of harassment. It was a charge to get inside that chocolate box house, behind the facade of lifestyle or character or class or culture, to save a victim whose very will had been overborne by their abusive partner. It just happens to mean that almost every divorcing spouse could find themselves in a police cell if their former partner wants to put the boot in. And from there, it is a desperately short step to the courtroom nightmare that Stephen endured. The publicity. No smoke without fire.
In the end we went back to the beginning. What about that convertible sports car he had bought? What had happened to that? We read about it in her sworn statement, so it must be true. What a thing to spend the family money on, all for his mid-life crises indulgence. What do you mean it was a £50 model car, for the kids? Surely the police must have been able to spot that straight away? Shouldn't that have undermined everything? A short non-conviction restraining order later (after electing for a Crown Court trial) and the nightmare was receding, leaving only the fact that Stephen hadn't seen his children for 9 months and still had an acrimonious divorce to resolve.
Coercive and Controlling Behaviour in a relationship can take many forms. Defining domestic abuse is hard. Cases like Stephen's ultimately undermine the force of the law, a sledgehammer to crack an already broken relationship, leaving both parties and the children the poorer and more miserable for it. It's not a price worth paying. The statutory guidance should be reviewed urgently, to ensure that the new offence is used when the abusive behaviour of a partner is properly criminal. If there is doubt, the resources spent prosecuting an alleged offender will be better spent on supporting an alleged victim, through counselling, good social care, relocation support where appropriate and restoring access to the Family Court.
Matthew Graham is Partner & Head of Criminal Law at Mowbray Woodwards. You can read his full article here.