Section 76 and the Serious Crime Act on Radio Suffolk

Family Law|October 6th 2015

Later this month – there still seems to be some doubt about precisely when – the government plans to bring into force Section 76 of the Serious Crime Act 2015. As is not uncommon, this wide-ranging piece of legislation, which received Royal Assent in March, has been introduced in stages, or ‘commencements’ as they are termed. Now it is the turn of Section 76, which must be one of the most controversial elements of the legislation, and one of the most difficult to establish as an offence.

Section 76 deals with ‘Controlling or coercive behaviour in an intimate or family relationship’, defining such activity for the first time as illegal. The wording of the clauses that make up section 76 are in some ways unusual, with their use of hypothetical persons ‘A’ and ‘B’ to illustrate the principles involved.

“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.

(2)A and B are “personally connected” if—

(a)A is in an intimate personal relationship with B, or

(b)A and B live together and—

(i)they are members of the same family, or

(ii)they have previously been in an intimate personal relationship with each other.”

“Serious effect” is defined as follows:

“(a)it causes B to fear, on at least two occasions, that violence will be used against B, or

(b)it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.”

BBC Radio Suffolk picked up the imminent introduction of Section 76 and rang for my views, for their coverage of a conference on the issue in Bury St Edmunds. I was duly interviewed bright and early this morning by presenter Etholle George. What would this new law mean in practice? How practical is it in reality?

Section 76 will mean that anyone found guilty of bullying their partner and trying to control their behaviour could face hefty fines and up to five years in prison. The doubtless well-motivated intention is clearly to extend the protection of the law to people whose partners do not subject them to physical violence but who nevertheless makes their lives a misery through verbal aggression and intimidation. Previously it was hard to prosecute in such cases for anything other than physical abuse.

But good intentions are one thing, effective intervention in the intricacies of human behaviour another. How do you enforce such a law? What corroboration will be judged sufficient to found a prosecution? Will it ultimately boil down to her word against his and therefore a question of which one of the two parties you believe?

A defence is set out in Section 76 (8). It requires the defendant to demonstrate the behaviour was reasonable. But what if the infringing behaviour was exaggerated or worse, never happened at all? Could it come down to which party is the more skilled actor?

In other words, is the person claiming to be the victim really as innocent as they claim? A seriously- held assumption behind such initiatives is almost always ‘women are the victims, and men are the guilty parties’, but the uncomfortable truth is that I have encountered more than one case in which the woman, skilfully playing the victim for all its worth, turned out to be the aggressor or abuser. Such women are readily believed when they claim that their partner is “very controlling” and the men targeted are left to struggle against an immediate gender prejudice and assumptions of guilt.

Why would women behave in such a way? Perhaps it goes way back in their relationship. Perhaps their husband left them for somebody else or she fell out with them for some other transgression. A woman in such circumstances, if eaten up with anger or bitterness, may find herself very tempted to try and make life as difficult as possible for her ex, possibly using their children as a weapon and making allegations against him. She may even seriously believe the allegations she makes by the time they come to trial. A lie can be embellished and embroidered whilst the truth is lost in the mists of time.

I remember one particular case for instance,  in which allegations of sexual abuse were made against the father and everyone was terribly sympathetic towards the mother. He had to move out – only for it later to emerge that the mother was in fact the abuser.

Of course, in the majority of cases, people do tell the truth and I would not wish to suggest otherwise. There are some real sadists out there and their behaviour should most certainly be taken to task. But I’m far from clear that this law will help.

Every now and again you come up against someone who presents themselves as the victim when they are not –and it is our response to those individuals which will make or break this law. It seems to me that it would be relatively easy to plan a desirable outcome using this new criminal legislation as the basis on which to build not only a prosecution which could mean prison for the hapless defendant, but also a successful divorce with ultimate outcomes that would otherwise have been much more difficult to achieve. Even obtaining legal representation is much easier because legal aid for legal proceedings as opposed to mediation is still available to sufferers of domestic abuse, albeit not easy to obtain. However, get a successful prosecution and bingo. Ditto when it comes to moving away from the area if required, obtaining housing and making it more or less impossible for the man to see his children. All this happens already of course, but with this new offence looming, which requires no demonstration of violence – just two instances of controlling behaviour, it could now get even easier. On the other hand, the police have begun to receive special training in what behaviour to look out for, and I think they will in most cases be more than a match for a “victim”, not least because they will have to consider the reverberations for themselves if they get it wrong. They are bound to act on the side of caution.

We shall have to wait and see how Section 76 works out in practice. But Is suspect we will see a miscarriage of justice or two in time.

Section 76 can be read here.

Meanwhile, you will be able to listen to my interview for the next few weeks here. My appearance starts at 1.37.

 

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(3)

  1. Andrew says:

    Actual physical violence or the threat thereof is far more likely to be male-on-female than any other combination but all the other nasty things people in a relationship can do to each other are equal-opps. This will be interesting to watch.

    • stitchedup says:

      I have to disagree Andrew, women are just as likely as men to resort to physical violence as men, perhaps more so. The difference is down to the end result in that a man is more likely to inflict significant physical injury if they assault a woman due to the fact that they are generally stronger and may not realise their own strength. As for the other nasty things as you put it, women are supremely capable and will often resort to the psychological and emotional abuse due their inability them being generally inferior if things were to become physical…. I’m sure many more women would become physically violent if it weren’t for the fact that they would generally come worst off if the man was to retaliate or even just try to restrain the woman.

  2. EmmaP says:

    Yes indeed, you have said it and underlined it, “relatively easy to plan a desirable outcome using this new criminal legislation……..also a successful divorce with ultimate outcomes that would otherwise have been much more difficult to achieve”, trying to pin shadows to the wall for prosecution whilst the oppo is playing shadow puppets, perhaps, “Suspect we will see a miscarriage of justice or two in time”. Well, we will see how Section 76 goes.

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