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Controlling or Coercive Behaviour in an Intimate or Family Relationship

Reviewed 30 June 2017

 

1. Introduction

The purpose of this guidance is to address controlling or coercive behaviour in an intimate or family relationship which causes someone to fear that violence will be used against them on at least two occasions; or causes them serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities.

When considering this offence, prosecutors must follow the Code for Crown Prosecutors and the CPS Domestic Abuse Legal Guidance. Note that this Legal Guidance builds on Statutory Guidance on the investigation of the offences of controlling or coercive behaviour

Other relevant CPS Legal Guidance might also need to be considered such as:

Prosecutors should also be aware of CPS Legal Guidance on Stalking and Harassment to ensure that the appropriate prosecution is proceeded with.

See Section 13 for a list of useful links.

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2. CPS Violence Against Women and Girls Strategy

The Violence Against Women and Girls (VAWG) Strategy provides an overarching framework for crimes identified as being primarily committed, but not exclusively, by men against women within a context of power and control.

The offence of controlling or coercive behaviour, and other prosecutions related to domestic abuse, should be addressed within an overall framework of VAWG and human rights. The gendered patterns and dynamics involved in these cases need to be understood in order to provide an appropriate and effective response. The recognition of these dynamics does not neglect abuse towards men or abuse perpetrated by women. All CPS polices are gender neutral and all victims should receive the same access to protection and legal redress.

Refer to the CPS Domestic Abuse Legal Guidance for further information about the gendered approach to prosecutions

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3. Understanding Controlling or Coercive Behaviour

In September 2012 the Government published guidance which may assist prosecutors to better understand the nature and features of controlling or coercive behaviour.

Domestic violence and abuse is defined as:

"Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality. This can encompass, but is not limited to, the following types of abuse: psychological, physical, sexual, financial and emotional." [Domestic abuse guidelines for prosecutors]

The definition is supported by the following explanatory text:

"This definition, which is not a legal definition, includes so called 'honour' based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group."

The Government definition also outlines the following:

  • Coercive behaviour is 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 victim
  • Controlling behaviour is 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

3.1 Section 76 of the Serious Crime Act 2015 - Controlling or Coercive Behaviour in an Intimate or Family Relationship

Section 76 of the Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in an intimate or family relationship. Prior to the introduction of this offence, case law indicated the difficulty in proving a pattern of behaviour amounting to harassment within an intimate relationship (the Statutory Guidance cites the following cases - Curtis [2010] EWCA Crim 123 and Widdows [2011] EWCA Crim 1500).

The new offence, which does not have retrospective effect, came into force on 29 December 2015.

An offence is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive; and
  • At time of the behaviour, A and B are personally connected; and
  • The behaviour has a serious effect on B; and
  • A knows or ought to know that the behaviour will have a serious effect on B.

A and B are 'personally connected' if:

  • they are in an intimate personal relationship; or
  • they live together and are either members of the same family; or
  • they live together have previously been in an intimate personal relationship with each other.

There are two ways in which it can be proved that A's behaviour has a 'serious effect' on B:

  • If it causes B to fear, on at least two occasions, that violence will be used against them - s.76 (4)(a); or
  • If it causes B serious alarm or distress which has a substantial adverse effect on their day-to-day activities - s.76 (4) (b).

For the purposes of this offence, behaviour must be engaged in 'repeatedly' or 'continuously'. Another, separate, element of the offence is that it must have a 'serious effect' on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.

The phrase 'substantial adverse effect on Bs usual day-to-day activities' may include, but is not limited to:

  • Stopping or changing the way someone socialises
  • Physical or mental health deterioration
  • A change in routine at home including those associated with mealtimes or household chores
  • Attendance record at school
  • Putting in place measures at home to safeguard themselves or their children
  • Changes to work patterns, employment status or routes to work

For the purposes of the offence A 'ought to know' that which a reasonable person in possession of the same information would know - s.76 (5).

A person guilty of an offence under this section is liable:

  • On conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
  • On summary conviction, to imprisonment for a term not exceeding 6 months, or a fine, or both.

Prosecutors are reminded that:

  • For an either way offence, it is not necessary for the last incident to have occurred within the previous six months;
  • Offending within a domestic abuse context is an aggravating factor because of the abuse of trust involved;
  • Appropriate ancillary orders can be applied for upon sentence or acquittal e.g. restraining orders. Prosecutors should liaise with the police to seek the views of the victim before an application is made.

Controlling or coercive behaviour towards another can include or be committed in conjunction with a range of other offences including offences under: the Malicious Communications Act 1998; the Sexual Offences Act 2003; and the Offences Against the Person Act 1861. See the Home Office Statutory Guidance and CPS Domestic Abuse Legal Guidance for examples offences that might apply to domestic abuse.

3.2 Relevant Behaviours

Prosecutors are advised that a pattern of controlling or coercive behaviour can be well established before a single incident is reported. In many cases the conduct might seem innocent - especially if considered in isolation of other incidents - and the victim may not be aware of, or be ready to acknowledge, abusive behaviour. The consideration of the cumulative impact of controlling or coercive behaviour and the pattern of behaviour within the context of the relationship is crucial. This approach will support the prosecutor to effectively assess whether a pattern of behaviour amounts to fear that violence will be carried out; or serious alarm or distress leading to a substantial adverse effect on usual day-to-day activities.

Further assistance can be obtained from the Statutory Guidance published by the Home Office pursuant to section 77(1) of the Serious Crime Act 2015.

Building on examples within the Statutory Guidance, relevant behaviour of the perpetrator can include:

  • Isolating a person from their friends and family
  • Depriving them of their basic needs
  • Monitoring their time
  • Monitoring a person via online communication tools or using spyware
  • Taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep
  • Depriving them access to support services, such as specialist support or medical services
  • Repeatedly putting them down such as telling them they are worthless
  • Enforcing rules and activity which humiliate, degrade or dehumanise the victim
  • Forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities
  • Financial abuse including control of finances, such as only allowing a person a punitive allowance
  • Control ability to go to school or place of study
  • Taking wages, benefits or allowances
  • Threats to hurt or kill
  • Threats to harm a child
  • Threats to reveal or publish private information (e.g. threatening to 'out' someone)
  • Threats to hurt or physically harming a family pet
  • Assault
  • Criminal damage (such as destruction of household goods)
  • Preventing a person from having access to transport or from working
  • Preventing a person from being able to attend school, college or University
  • Family 'dishonour'
  • Reputational damage
  • Disclosure of sexual orientation
  • Disclosure of HIV status or other medical condition without consent
  • Limiting access to family, friends and finances

This is not an exhaustive list and prosecutors should be aware that a perpetrator will often tailor the conduct to the victim, and that this conduct can vary to a high degree from one person to the next. It will be open to the courts to consider acts by a defendant and to conclude whether those acts constitute criminal behaviour.

There might be confusion about where the 'appropriate' dynamic of a relationship ends and where unlawful behaviour begins. The College of Policing Authorised Professional Practice on Domestic Abuse states: "In many relationships, there are occasions when one person makes a decision on behalf of another, or when one partner takes control of a situation and the other has to compromise. The difference in an abusive relationship is that decisions by a dominant partner can become rules that, when broken, lead to consequences for the victim."

Therefore, prosecutors should consider the impact on the victim of following, or not following, rules imposed upon them within the wider context of the relationship. Also consider the range of offending behaviour with particular reference to other crimes, such as enforced sexual activity including rape.

Refer to:

 

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4. Defences Available

In relation to subsection 4(b) (behaviour causing Serious alarm or distress which has a substantial adverse effect on their day-to-day activities) it is a defence to show:

  • That in engaging in the behaviour in question, A believed that he or she was acting in B's best interest; and
  • The behaviour in all the circumstances was reasonable.

A is to be taken to have shown this if:

  • A has raised sufficient evidence of the facts adduced to raise an issue with respect to them; and
  • The contrary is not proved beyond reasonable doubt.

In determining whether A ought to know that their behaviour would have a serious effect on B, the question to be considered is whether a reasonable person in possession of the same information would know that the behaviour would have a serious effect on someone.

Note that this defence is not available in relation to subsection 4a (behaviour that causes B to fear on at least two occasions that violence will be used against them).

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5. Gathering Evidence and Case Building

Efforts aimed at gathering evidence to build a robust prosecution case should focus on the wider pattern of behaviour and on the cumulative impact on a person. It should also be noted that a victim may not know the full extent of a perpetrator's conduct therefore all potential lines of enquiry should be explored.

The Statutory Guidance outlines a non-exhaustive list of the types of evidence that could be used to prove the offence of controlling or coercive behaviour; the following list including and builds on the examples provided in the Statutory Guidance:

  • Copies of emails
  • Phone records
  • Text messages
  • Evidence of abuse over the internet, digital technology and social media platforms
  • Photographs of injuries such as: defensive injuries to forearms, latent upper arm grabs, scalp bruising, clumps of hair missing
  • 999 tapes or transcripts
  • CCTV
  • Body worn video footage
  • Lifestyle and household including at scene photographic evidence
  • Records of interaction with services such as support services, (even if parts of those records relate to events which occurred before the new offence came into force, their contents may still, in certain circumstances, be relied on in evidence)
  • Medical records
  • Witness testimony, for example the family and friends of the victim may be able to give evidence about the effect and impact of isolation of the victim from them
  • Local enquiries: neighbours, regular deliveries, postal, window cleaner etc
  • Bank records to show financial control
  • Previous threats made to children or other family members
  • Diary kept by the victim
  • Victims account of what happened to the police
  • Evidence of isolation such as lack of contact between family and friends, victim withdrawing from activities such as clubs, perpetrator accompanying victim to medical appointments
  • GPS tracking devices installed on mobile phones, tablets, vehicles etc.,
  • Where the perpetrator has a carer responsibility, the care plan might be useful as it details what funds should be used for

Even where there is a decision to take no further action, prosecutors should ask police officers to advise the victim to take steps to gather records to support any future investigation. This might include:

  • A diary of events (ideally in a bound book or timed by keeping an electronic record) noting that there are potential risks to the victim if the perpetrator were to discover this;
  • Safely noting details of witnesses who may have observed or heard these events;
  • Storing messages or taping calls made by the defendant;
  • Safely speaking to neighbours, colleagues, family, friends or specialist support services

However, note that it might be particularly difficult for some disabled people in receipt of informal or employed care support to gather evidence.

The police should advise the victim how to keep information in relation to incidents and themselves safe. In addition, they should also signpost the victim to specialist domestic abuse services such as the 24 Hour National Domestic Violence Helpline (run in partnership by Women's Aid and Refuge on 0808 2000247).

The joint-Police and CPS Evidence Gathering Checklist has been updated in light of the new offence to support investigators and outlines further types of evidence which might be particularly relevant to proving this offence.

Prosecutors must also refer to the CPS Domestic Abuse Legal Guidance which provides further advice on gathering evidence and case building including advice on charging, consideration of previous domestic abuse incidents (bearing in mind that these may need to be reappraised as the controlling or coercive elements may not have been taken into account), serial perpetrators, risk assessments and risk indication checklists (such as the DASH or Domestic Abuse Stalking and Harassment risk assessment.

The College of Policing Authorised Professional Practice for Domestic Abuse also provides further advice to frontline investigators on evidence gathering.

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6. Selecting the Most Appropriate Charge

Charges selected by a prosecutor should facilitate the clear presentation of the case at court and accurately reflect the extent of the accused's involvement and responsibility, allowing the court appropriate sentencing powers. When deciding upon the appropriate charge(s), consider the cumulative harm caused to the victim as a result of controlling or coercive behaviour which forms an overall pattern of behaviour.

Where behaviour has a serious effect on a victim causing them to fear violence on at least two occasions or serious alarm or distress resulting in a substantial adverse effect on a victims usual day-to-day activities then a charge under the offence of controlling or coercive behaviour should be considered.

Note that controlling or coercive behaviour can incorporate acts which amount to criminal offences in their own right, or acts which fall short of criminal offending but nevertheless have a 'serious effect' on someone as described in Section 76 of the Serious Crime Act 2015. Where the behaviour includes a specific criminal offence then consideration should be given to charging that offence in its own right in addition to relying on it as part of the behaviour under section 76 (but see: Jones v DPP [2011] 1 WLR 833). This would be an appropriate course if the offence represented a particular aggravating aspect of the defendant's conduct examples of which might be an assault causing injury, an offence involving discrimination which would attract an increased sentence under sections 145 or 146 of the Criminal Justice Act 2003 or an offence involving a weapon.

Specific sentencing guidelines for the new offences are not available. Prosecutors are reminded that the Revised Allocation Guidelines (to assist in determining whether cases should be dealt with in Magistrates' Courts or the Crown Courts so as to ensure that all cases are tried and sentenced at the appropriate level) comes into effect on 1 March 2016.

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7. Taking an Offender-Centric Approach

An effective strategy in the prosecution of these cases needs to involve scrutiny of the behaviour and actions of the suspect/defendant. This approach can:

  • Help ensure the effective consideration of the overall allegation within the wider context of the relationship
  • Inform and support investigators to consider all available evidence
  • Lead to the swift and accurate assessment of risk which, in turn, can help to ensure a suitable multi-agency approach to increasing the safety of the victim

A perpetrator usually weighs up the relative benefits and costs of pursuing abusive actions. This may involve taking a number of steps to minimise the likelihood of detection and punishment. Given the nature of the relationship, and the access it affords the perpetrator to the victim, highly sophisticated tactics to control or coerce can be deployed which can be accompanied by physical violence.

Prosecutors should also note that perpetrators may:

  • Be highly manipulative, taking steps to disrupt or mislead the investigation and prosecution. This can include making counter-allegations of abuse or arguing that actions were taken in self-defence, thereby making it difficult to distinguish between the primary victim and the primary aggressor. The police should explore the nature of the relationship, the context of the offending including any wider pattern of behaviour and whether there are any other factors at play which may impact on an allegation such as civil or family proceedings. Refer to the CPS Domestic Abuse Legal Guidance for further information about counter-allegations and self-defence.
  • Take other steps to mislead the investigation, this can include: altering behaviour when being watched or supervised; using others to assert control over the victim; accusing the victim of 'nagging' them and other spurious complaints to the authorities.
  • Target vulnerable people recognising that they may face additional barriers to accessing help or support. For example: exploiting someone's vulnerability owing to their immigration status, disability or sexual orientation; or combining controlling or coercive behaviour with enforced sexual activity to humiliate the victim and reduce the risk of them seeking help. Consider the context of the relationship and the relative position of power to help with the assessment of the case. For example, if a disabled person is reliant upon their perpetrator for support, they may manipulated into believing that nobody else is trustworthy enough or able to care for them, and if abuse was reported then they would go to a Residential Care Home. Refer to the Statutory Guidance, CPS Domestic Abuse Legal Guidance and Toolkit for Prosecutors on VAWG Cases involving Vulnerable Victims.
  • Make repeated applications for variations of a restraining order or child arrangement order so as to continue to try and control or coerce the victim further. In such cases, prosecutors should remind the court of its powers to control abuse of process. It should be noted that only a single act is required to constitute a breach of a restraining order. Where there is a breach of a criminal or civil order, the sole defence is that the defendant had a reasonable excuse. The standard of proof, which it is for the defendant to put forward, is on the balance of probabilities.
  • Minimise, or give mitigation for, their offending behaviour. In general, if offending behaviour amounts to controlling or coercive behaviour, and that is the appropriate charge, prosecutors should not accept a plea to a lesser offence simply out of expediency. Refer to the CPS Domestic Abuse Legal Guidance for further information about the acceptability of pleas.

For further information about offender tactics in VAWG cases, prosecutors should refer to Table 1 of the following toolkit highlighting the tactics and behaviours that an offender might use or display.

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8. Impact on the Victim and Understanding their Behaviour

An effective assessment of the impact on the victim requires prosecutors to recognise the harm caused to them from the cumulative impact of a pattern of abuse.

  • Do not assume what a 'typical' victim might look like or behave. Victims may respond to abuse in a number of ways including consuming drugs or alcohol, and/or by showing signs of humiliation, detachment, anger, and retaliation. Victims may also interpret abuse very differently including expressing feelings of guilt; this might depend on their social or cultural context. Refer to the CPS Domestic Abuse Legal Guidance for further advice on self-defence and issues relevant to particular groups.
  • Improving a victim's safety is key in helping to raise confidence with the criminal justice process and in facilitating their participation with the case. There may be a continuing threat to their welfare and their needs should be identified from the outset and considered throughout the life of the case and beyond. It should be noted that the risk posed to the victim can escalate quickly. Where available, regular liaison with specialist domestic abuse services, Independent Domestic Violence Advisors (or equivalent) and Domestic Abuse Prevention Advocates is recommended to further ensure the victim's needs are properly understood. In addition, the correct application of a restraining order can be a significant part in managing risk and in preventing future offending - the investigating officer should provide information about possible conditions for an order as soon as possible.
  • Controlling or coercive behaviour can be overlooked as victims might be seen as colluding or consenting to the behaviour. In some circumstances the victim may not be aware or be ready to acknowledge, least of all be ready to report, that they are being abused. Do not assume that compliance, dependence, denial and other responses are collusive. Rather, these reactions might better be understood as ways of coping or adapting to the abuse. Other reasons why controlling or coercive behaviour may not be identified early or reported, include feelings of self-blame or first responders on call outs not asking the right questions to adduce the cumulative harm caused in the relationship.
  • A clear and coherent account from the victim is reliant upon their powers of recall/concentration, their cognition of the events and their ability to communicate. The following factors should be considered about the presentation in court of someone subjected to controlling or coercive behaviour: the impact of recalling a traumatic event; manipulation by the defendant or others; fear or allegiance to the defendant; barriers to communication including language barriers or other impairments. There are a number of steps which can be taken to support victims through the criminal justice process including the use of special measures, having a single point of contact such as an Independent Domestic Violence Advisor (or equivalent) and taking other practical steps such as arranging a pre-trial visit. Refer to the Domestic Abuse Legal Guidance and Tables 3 and 4 in the Toolkit for Prosecutors on VAWG Cases involving Vulnerable Victims.
  • Victims may face difficult decisions as pursuing a prosecution can have a significant impact on their lives, and the lives of others close to them. As a result, some may not want to pursue a criminal justice route or may not be ready, making use of civil remedies and other safety and support mechanisms. The prosecution strategy should, from the outset, contemplate the possibility of proceeding without the complainant's support. Refer to the CPS Domestic Abuse Legal Guidance for steps to take when a complainant withdraws support for the prosecution or retracts their statement

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9. Stalking and Harassment

It is important to understand the difference between the offences of controlling or coercive behaviour and those involving stalking and harassment.

Like controlling or coercive behaviour, offences of stalking and harassment can involve a course of conduct or pattern of behaviour which causes someone to fear that violence will be used against them on at least two occasions, or which causes them serious alarm or distress to the extent it has a substantial adverse effect on their day-to-day activities. Indeed the behaviour displayed under each of these offences might be exactly the same.

The offence of controlling or coercive behaviour has been introduced specifically to capture abuse in an ongoing relationship where the parties are personally connected, as defined in section 76(2)

When selecting the appropriate charge, prosecutors should consider the status of the relationship. Where there is an ongoing relationship then the offence of controlling or coercive behaviour should be considered. Stalking and harassment offences may be appropriate if the victim and the perpetrator were previously in a relationship but no longer live together. These offences can also be charged in relation to activity that takes place between people who do not know each other and may never even have met one another.

There may be instances where the relationship status of the victim and perpetrator change a number of times during the investigation and prosecution. It is the status of the relationship at the time the offending behaviour was alleged to have taken place which is relevant.

A separate investigation and prosecution should be considered as appropriate if offending continues after the status of the relationship changes. For example, where:

  • an offence of controlling or coercive behaviour is in the process of being investigated or charged; and
  • the victim and the perpetrator are no longer in an ongoing relationship but the offending continues; then
  • the offence of stalking or harassment could also apply alongside the offence of controlling or coercive behaviour.

In these instances, and depending on the circumstances of the case, it may be appropriate to:

  • Include offences related to controlling or coercive behaviour along with stalking or harassment offences on the same indictment; or
  • Proceed with separate prosecutions for controlling or coercive behaviour and stalking and harassment. This approach might be more appropriate in circumstances where the defendant is on police or court bail and they continue to harass or stalk the victim. In these instances, the police should consider remanding the defendant in custody.

Refer to the CPS Legal Guidance on Stalking and Harassment.

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10. Incidents Before and After Commencement of Legislation

Incidents before the commencement of legislation on controlling or coercive behaviour:

  • The offence of controlling or coercive behaviour came into force on 29 December 2015. Any incident which forms part of a repeated or continuous behaviour that took place prior to this date cannot be included in a charge. Where appropriate, consideration should be given to the introduction of controlling or coercive behaviour prior to 29 December 2015 as Bad Character Evidence.

Incidents after the commencement of legislation on controlling or coercive behaviour:

  • If an incident is charged under other legislation and then a subsequent incident occurs which establishes repeated or continuous behaviour which has a serious effect on someone (causing fear on at least two occasions that violence will be used against them; or serious, alarm or distress which has a substantial effect on their day-to-day activities) then it may be advisable to withdraw the earlier charge and to substitute with an updated charge covering both incidents.

Difficulties will arise if an earlier incident has resulted in a conviction. It is unlikely that the courts will allow incidents that have already been dealt with to form part of a subsequent offence, given the doctrines of autrefois acquit and convict. However, these incidents can be made the subject of a bad character application; for instance based on propensity or explanatory evidence.

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11. Children and Young People Act 1933 and the Position for under 16 year olds

The Statutory Guidance states that the new offence would not apply where 'the behaviour in question is perpetrated against a child under 16 by someone aged 16 or over who has responsibility for that child (subsection (3)). This is because the criminal law, in particular the child cruelty/neglect offence in section 1 of the Children and Young Persons Act 1933 as amended by section 66 of the 2015 Act, already covers such behaviour.'

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12. Identification and Flagging of Cases

All cases involving domestic abuse, forced marriage or so-called 'honour' based violence should be identified and flagged as such on the CPS Case Management System (CMS). In addition, all cases involving domestic abuse should be flagged as 'vulnerable/intimidated' victims.

For the purposes of CPS domestic abuse monitoring, cases involving victims under the age of 18 are flagged as domestic abuse and child abuse (and any other appropriate flag). Prosecutors should also ensure whether other flags apply in cases including: rape; domestic violence specialist court; human trafficking; and/or hate crime.

In addition to the information captured through the standard CMS options and, in line with the CPS VAWG Assurance System, prosecutors should record the outcome of cases where there has been a victim retraction.

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13. Useful Links

The Code for Crown Prosecutors
Section 76 of the Serious Crime Act 2015
CPS Legal Guidance on Domestic Abuse
CPS Legal Guidance on Stalking and Harassment
CPS Legal Guidance on Forced Marriage and Honour-Based Violence
CPS Legal Guidance on Rape and Sexual Offences
College of Policing Authorised Professional Practice on Domestic Abuse
Police / CPS Evidence Gathering Checklist on Domestic Abuse
Police / CPS Charging Advice Sheet on Domestic Abuse
Toolkit on VAWG Cases involving Vulnerable People

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