1. Introduction
1.1. How is domestic violence defined?
In 2011 the supreme court confirmed a broad definition of domestic violence. ‘Domestic violence includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly may give rise to the risk of harm (Baroness Hale). This definition lacked in an insufficient amount of detail and did not recognise that there are many more forms of domestic violence that also need to be confronted. This was addressed and in March 2013 the Home Office expanded the definition to include younger victims and coercive and controlling behaviour. The cross-government definition of domestic violence and abuse is: any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of their gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial and emotional. This more adequate explanation of domestic abuse makes it clear exactly what counts as abuse and also raises awareness that domestic abuse is not just about the physical injuries and scars we see in a victim but also the psychological scars imprinted on them too. “These changes are about government taking a lead to help expose the true face of domestic violence, which is much more complex and much more widespread than people often realise” (Nick Clegg). The law is beginning to recognise that there needs to be a lot more done in order to better protect against domestic abuse. Starting with identifying and recognising the patterns and offences leading up to it. The new definition recognises that a pattern of behaviours and separate incidents of control and coercion add up to abuse. This was one of the most significant improvements in the legal system in relation to domestic violence to better protect women against abuse.
1.2. What does controlling and coercive mean in terms of domestic violence?
The cross government definition of domestic violence and abuse defines controlling behaviour 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, ‘ a continuing act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim.
These types of behaviour do not occur in a single incident; it has to be recognised as a pattern of incidents which takes place over a period of time for the victim to be actually identified as a victim of coercive control.
1.3. History
In June 2014 there was some discussion in the House of Lords about the Serious Crime Bill [HL] 2014–15 (UK) (‘Serious Crime Bill’) which included a collection of new offences focused on computer fraud and child protection. In debating its contents Lord Paddick asked why
the Government have not taken the opportunity in this Bill to address what many women’s groups believe to be a legislative gap in domestic violence law to deal with psychological abuse and coercive control. Indeed, psychological abuse and coercive control, not individual incidents of physical violence, are the essence of domestic violence.
In response to these concerns the Home Office carried out a consultation about the criminal law’s response to domestic violence. Its consultation was specifically focused on ‘whether we should create a specific offence that captures patterns of coercive and controlling behaviour in intimate relationships’. In its consultation paper, the Home Office recognised that a new offence may be seen as duplicating existing legislation (ie harassment and stalking). It observed:
there is no need for greater clarity around violent behaviours, which are effectively criminalised through existing offences. However non-violent behaviours are criminalised through legislation that is not explicitly applicable to intimate relationships.
In response to its consultation, the Home Office received 757 submissions and 85 per cent were in favour of ‘strengthening’ the law on domestic violence.One submission commented:
Current legislation is not sufficient; it largely reinforces an approach based on single physical incidents, rather than capturing the patterns of power and coercive control within an ongoing relationship … These failings mean that the police do not have all the tools that they need and that Criminal Justice System cannot effectively intervene, nor translate and consequently penalise the crime before the abuse has escalated. For many this is too late.
In January 2015 a member of the House of Lords announced that amendments in committee to the Serious Crime Bill would ‘provide an additional charging option where there is a pattern of non-violent controlling conduct, the cumulative impact of which can be no less traumatic for the victim’. Subsequently an amendment to the Serious Crime Bill was moved on 20 January 2015, with the Solicitor-General stating:
We must bring domestic abuse out into the open if we are to end it. The first step is to call it what it is: a crime of the worst kind … We must create a new offence that makes it crystal clear that a pattern of coercion is as serious within a relationship as it is outside one. In many ways it is worse, because it plays on the trust and affection of the victim. That is why we need a new offence … The new offence seeks to address repeated or continuous behaviour in relationships where incidents viewed in isolation might appear unexceptional but have a significant cumulative impact on the victim’s everyday life, causing them fear, alarm or distress.
1.4. Introduction of Section 76 to the Serious Crime Act 2015
The Serious Crime Act (SCA) 2015 received royal assent on 3rd March 2015. The Act introduced Section 76 which created a new offence of controlling and coercive behavior in an intimate or family relationship. Prior to the introduction of this offence, case law indicated the difficulty in being able to prove a pattern of behavior leading up to this type of offence (R v. Curtis [2010]). The introduction of section 76 intended to close a gap in the law around being able to prove patterns of controlling and coercive behavior. However it still only provides guidance to certain extent to what the court should be looking for and it can still be difficult for the prosecution to prove the offence. Under section 76 A person (A) commits an offence if A repeatedly or continuously engages in behavior towards another person (B) that is controlling or coercive. A single incident of abuse is not ‘continuous’ or ‘repeatedly’, therefore the defendant cannot be charged under this offence but could be charged under another offence in a different area of the law depending on the nature of the incident. For example it is an offence under the Protection of Harassment Act 1997 to follow a person or monitoring the use by a person of the internet, email or any other form of electronic communication this could be via social media. In a controlling relationship a partner may be following therefore stalking their partner to monitor their activities, the defendant could be charged with stalking under this Act if the court has not been able to identify any other pattern of abuse in the relationship. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both. However under Section 76 of the SCA 2015, coercive and controlling behaviour does not relate to a single incident. It is a purposeful pattern of incidents that occur overtime in order for a partner to exert power, control or coerce their partner. Some of the behaviours such as monitoring their partners whereabouts may be constituted as a single criminal offence. The court has to recognise a pattern of incidents over a period of time and not just one or two incidents which have occurred and do not establish a pattern. Under section76 it states that the victim must have feared that violence will be used against them at least twice during the ‘relationship’, however the act does not state a time frame. This should be a reform which should be amended into the section otherwise it is indistinctive how a court should be able to recognise a pattern of coercive control if the incidents do not happen immediately after one another. For example, if a couple have been in a long term relationship and two abusive incidents have made the victim fear for their life on both of these occasion (meeting one of the provisions of the act) but the incidents were three years apart, is this recognisable as a ‘pattern’ of coercive control? It is unlikely that a case of this nature will be considered as domestic abuse under the provisions of section 76.R v Curtis, for example, involved a number of incidents of harassment perpetrated over a long period of time. The Court of Appeal found that the trial judge should have stopped the case at the close of the prosecution:
we cannot conclude that, in this volatile relationship, the six incidents over a nine-month period amounted to a course of conduct amounting to harassment within the meaning of the statute. The spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides, which are the hallmarks of the present case, interspersed as those outbursts were with considerable periods of affectionate life, cannot be described as such a course of conduct.
It has been acknowledged that many relationships that include domestic violence include periods of violence interspersed with periods of non-violence and that periods of non-violence may also be part of a controlling pattern. Thus a period of affection may not necessarily signal a break in a course of conduct.
Subsection (11) states that the person may be convicted on indictment (maximum penalty five years or a fine or both) or on summary conviction (maximum penalty 12 months or a fine or both). This approach is common in England and Wales and usually a magistrate will make a decision about whether the case is too serious or complex to be heard in the Magistrates’ Court. Given that the new provision is a course of conduct offence, it is likely that some offences will be based on actions that took place over months or years, thus it is sensible that there appears to be no time limit on prosecution.
However may still be an offence if looked at as singular incidents of abuse. For example an offence under the Protection of Harassment Act 1997 such as stalking. There may also be charges of assault if any physical abuse had been incurred by the victim.
Prior to the introduction of section 76 in the SCA 2015, case law indicated the difficulty in proving a pattern of behaviour amounting to harassment within an intimate relationship (R v Curtis). Further in the case of R v Widdows, the Court of Appeal, Criminal Division held that the judge was unable to direct the jury to the offence of harassment under the Protection from Harassment Act 1997 section 4, they were unable to criminalise the offences. They found that it was not appropriate due to the defendants and victims on and off again long term affectionate relationship in which both parties wanted to continue the relationship. The case shows that the court was unable to identify a pattern of controlling or coercive behaviour in order to be able to convict an abuser, this was due to the on and off relationship between the two parties therefore they were unable to recognise a pattern. However the court should have been able to identify that the victim may have been coerced back into the relationship and was not allowed to leave the relationship by choice. Regardless of an on again off again relationship, the complete time that a couple have been together should be looked at as a whole time period as the victim may have suffered serious harm or distress over the time. Getting back into a relationship should not mean that a refresh button has been hit and all the previous offences committed should not be taken into account.
Controlling and coercive behaviour can also be in conjunction with a range of other offences such as under the Malicious Communications Act 1998, Sexual Offences Act 2003 and Offences against the Person Act 1861. Offences could include …
Other elements of the provision makes it an offence if the behavior has a serious effect on B the ‘serious effect’ on B is to be proven by the guidance of the provision where it states that the offenders behavior has caused B to fear on at least two occasions that violence would be used against them and for it to have caused serious alarm or distress which has a serious adverse effect on B’s day to day activities. This may include a change of behavior that has impacted negatively and is noticeable to other family members. For example, the victim may not be as socially involved and more reserved than usual. The victim may stop or reduce the amount of family gatherings or going out with friends. There might have also been occasions where the victim has not gone to work or has been made to leave work which may be a irregular characteristically for the victim which has now become noticeable to family and friends.
2. Jurisdiction and Procedure
The most important remedies for domestic violence are those to be found in part IV of the FLA, which came into force October 1997. It repeats and replaces earlier remedies provided in the Domestic Violence and Matrimonial Proceedings Act, SS.16-18 of the Domestic Proceedings and Magistrates Court Act 1978 and the Matrimonial Homes Act 1983, providing 2 specific types of orders and extending the categories of persons entitled to apply for an order. The County Court and the High Court retain their existing power to grant injunctions, but only in support of some existing rights.
Occupations orders and non-molestation orders can be made in other family proceedings or on separate applications. They can be made by a Magistrates Court (subject to appeal to the High Court, by the County Court or by the High Court, but Magistrates has the power to decline jurisdiction if they think it appropriate and cannot hear any application involving any disputed question as to a party’s right to occupy premises unless the determination of that question is irrelevant to the order.
Under S.45, the court may make an occupation order or non-molestation order ex parte, without the prior notice to the respondent, where it considers it just and convenient to do so. Before making such an order the court must consider any risk of significant harm done by the respondent to the applicant or a relevant child if the order is not made immediately, and the likelihood that the applicant will be deferred or prevented from pursuing the application, and any reason to think that the respondent knows of the proceedings but will deliberately evading service. If the court does make an ex parte order, then it must soon afterwards gibe the respondent a chance to make the representations as soon as just and convenient at a full hearing.
Neil v Ryan [1998] 2 FLR 1068, Times 1/9/98 CA
A woman N attacked in her own home by R, who was thus in breach of a non-molestation order, allowing N’s appeal against a suspended prison sentence on N, and substituting a month’s immediate imprisonment, Judge LJ said anything less than immediate custody would give the impression that a first time breach would be condoned.
It has been criticised that the focus on obtaining protection orders or prosecuting a breach, rather than focusing on the behaviour underlying the breach has decriminlaised the offence of domestic abuse and the behaviour that led to the need for a protection order in the first place.
2.1. Non-molestation Order
The first type of order made available by the 1996 Act is a non-molestation order, which prohibits a respondent from molesting the applicant or a relevant child. There currently stands no legal definition of molestation as there was no statutory definition provided by the FLA 1996, an act which is now more widely governing the law around domestic violence. There is a guidance to how the court can interpret it but it is exactly that, an interpretation. A court or judge is free to interpret what they consider to be molestation. As they are not bound to a single definition they can decide the outcome of an order or breach how they see fit, these will vary from case to case as each individual court or judge may not share the same view to what molestation is defined to. However, there is some guidance to assist the court in how to interpret the term. Some of this guidance can be found in section 42 of the Family Law Act 1996which breaks down when a court may be able to make a non-molestation order. It can also be found on legal websites such as gov.uk which can be publically accessed. It is a summarised outline about what the order is about and who is eligible to apply. So far it has been established that violence is a form of molestation but can be seen as wider than this as it includes serious pestering and harassment, molestation can occur without the threat and use of violence but must affect ‘health, safety or wellbeing’.
On the other hand, the lack of definition can be construed as positive as it allows a certain flexibility for this remedy to adapt to different circumstances in cases.
Section 1 of the Domestic Violence, Crime and victims Act 2004 (DVCVA) amended section 42 of the FLA by creating a criminal offence of a breach of a non-molestation order. The provision was enforced in 2007 after concerns that civil procedure was ineffective in preventing and deterring domestic violence. The provision holds a maximum of up to five years’ imprisonment if a breach has been made. Prior to this amendment, a breach of a non-molestation order only held an arrest for civil contempt of court however this was only if a power of arrest was attached to the order, there was a maximum of 2 years’ imprisonment. The amendment also enables the police to have automatic powers of arrest without a warrant if they suspect ‘anyone who is in the act of committing an offence’.
These amendments were introduced to be able to better protect women from domestic violence and by transferring arrests from family court to criminal exhibits that the law is taking adequate preventative actions and sending out clear messages that these types of offences will not go unpunished.
(give example of case to show evidence of any improvement or statistics to show arrest records whether preventative measures are working )
applications are only applicable if the parties are ‘associated’ to each other.
in the case of G v F , the Magistrates refused to hear an application for a non-molestation order, on the grounds that W and M lived for so much of the time in spate households and so were not strictly ‘associated persons’ for S.42 of the FLA 1996 to be applied. Remitting the matter for rehearing (and continued an existing order in the meantime) Wall J said the courts should give the relevant provisions a purposive constructions- they were intended to provide a swift and effective remedy to the victims of domestic violence- and should not decline jurisdiction unless the facts of the case were plainly incapable of being bought within the statute.
Almost 20000 non-molestation orders were made by County Courts in 1996 (under the pre-1996 Act), and an unknown number by the Family Proceedings Courts. This is about six times the number of occupation orders.
There have been cases where the judge has refused to grant non-molestation orders if the applicants risk of health and well-being is questionable if she does not fully comply with an order, for example if she wants to continue to live with the respondent. (F v F)
Under S.45(5) if the court considers a non-molestation order (and if so, in what terms) they must have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant and any relevant children. An order may prohibit molestation generally (which certainly includes violence but covers other conduct too) and identify particular prohibited acts. The order remains in effect for a specific period or indefinitely; as the court decides.
2.2. Occupation Order
The seconds type of order is an occupation order which is an order issued by the court which sets out who has the right to stay, return or be excluded from the family home. It does not change the financial shares in a home. It is usually a short term measure and the length of time that it lasts will depend on the circumstances. In many cases an order will last from 6 months up to 12 months and some can be renewed. An order can only be made for a property where both parties live or intended to live in as the family home.
A occupation order can do a number if things, however what a party is eligible for depends on the circumstances, including whether the parties were married, in a civil partnership or a couple living together and who owns or rents the property.
The court will take a number of things into consideration when deciding whether to make an occupation order or not. These are:
1. income of you and your partner
2. the housing needs for each party and any relevant children and what would happen if someone was made homeless
3. whether an occupation order would affect the health either mental or physical, safety and well-being of each partner and children
4. how each party have behaved
in some cases, the court may also apply the ‘balance of harm test’. This means that the court considers the likelihood of significant harm to each person and any children involved if any order is made, balanced against the likelihood of significant harm if an order is not made.
There is also the Domestic Violence, Crime and Victims Act 2004 which seeks to give greater protection to victims of domestic violence. However, at the same time the Human Rights Act 1998 will be relevant to the law on domestic violence.
Occupation orders under the FLA 1996 vary according to whether or not the applicant is entitled to occupy the property, and according to the applicants’ relationship to the other party. Where the applicant is entitled to occupy the matrimonial home, either by virtue of the general law as a beneficial co-owner or by virtue of the matrimonial home rights, she may apply for an occupation order under S.33 against anyone with whom she is associate. An ‘associated person’ is defined in S.63(3) as including any present or former spouse, cohabitant or recent fiancé, anyone who lives or has lived in the same household (other than by way of employment or contract), any close relative, anyone now or previously sharing parental responsibility for a child, or anyone party to the same matrimonial proceedings.
An occupation order made under S.33(3) enforces the applicants right to enter and occupy the home and may also exclude the respondent from part or all of the home or from the area around it, suspending, restricting or terminating his own matrimonial home rights or his exercise of any other rights of occupation as may be necessary. An occupation order continues effective indefinitely, or for such a period the court may decide, but it is seen as a temporary measure until permanent arrangements can be made. These permanent arrangements may include a property adjustment order, where the occupants are married and seek separation or divorce, but where they are unmarried cohabitants the court has no power to alter the ownership or the occupation rights over the property.
2.3. Criminal Proceedings
Legal and social attitudes to domestic violence have changed significantly over the past 150 years or so. At the beginning of Queen Victoria’s reign it was considered quite acceptable for a husband to beat his wife for misbehaviour just as he would beat his children. Now the law takes a very different view, a man who assaults his wife or children is liable to any prosecution as for any further assault.
Re Cochrane [1840] 8 Dow PC 630, Coleridge J
Wife left her husband for no good reason, H bought her back forcibly. W obtained a write of habeas corpus, but the judge subsequently discharged this and ordered the wife to return to the husband. Quoting old law books, he said that there could be no doubt “the husband hath by law the power and dominion over his wife and may keep her by force within the bounds of duty, and may beat her but not in a violent or cruel manner.” Wife could regain her freedom if she wished by cheerfully performing her part of the marriage contract.
R v Halliday [1889] 61 LT 701, CCR
H threatened his wife with violence and frightened her to such an extent that she jumped out the bedroom window to escape his threats and injured herself quite seriously: the court for crown cases reserved upheld H’s conviction for maliciously inflicting grievous bodily harm. W’s action was a foreseeable result of H’s unlawful act and could therefore be regarded as having caused her injuries. There was no suggestion that as the W’s husband he had any right to use violence against her.
2.4. Remedies in Tort
It is only a few years ago that the courts began to develop a tort harassment against which relief may be granted by way of an injunction, but the gradual and uncertain common law developments have now been overtaken by statute.
Burnett v George [1992] 1 FLR 525, CA
M and W broke off their relationship in 1986, W obtained an injunction restraining M from ‘assaulting, molesting or interfering with’ her or entering her property. Allowing M’s appeal in part, the COA said the injunction against ‘interference’ should be limited to acts calculated to cause W harm. Where there is not matrimonial nexus said Arnold P, mere ‘interference’ is not an actionable wrong.
Tabone v Seguna [1986] 1 FLR 591, CA
The PfHA 1997 extends both criminal and civil law. Under S.1 of the Act, a person is prohibited from pursuing any ‘course of conduct’ (including speech) which he knows or ought to know amounts to harassment of another person. The test of what amounts to harassment (which is not defined, but includes causing alarm or distress) is the opinion of a reasonable man. A defence is provided if the defendant can show the course of conduct was pursued to prevent or detect a crime, or to comply with any rule of law, or it was reasonable in all the circumstances.
There are no fully reported cases so far for the application of this Act. Its application to domestic violence is limited in any case, since it cannot be effectively used to keep a man out of his own home, which is what is often needed to secure the safety of his wife or cohabitation and any children. Injunctions in tort are still potentially important in some cases, however because most of the matrimonial remedies available now only extend to spouses, former spouses and opposite sex cohabitants.