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12 Jan 2015

Two Christmas presents from the Home Office

A new domestic abuse offence

Just before Christmas the Home Secretary, Theresa May, announced that there is to be a new domestic abuse offence which will deal with “coercive and controlling behaviour.” The offence will carry a maximum of five years imprisonment. The new offence is aimed at addressing a perceived gap in the current law around domestic abuse.

The offence will criminalise “sustained patterns of behaviour that stop short of serious physical violence but amount to extreme psychological and emotional abuse.” This could include an abuser preventing their victim from having friends or hobbies, refusing them access to money and determining a range of aspects of their everyday life including when they are allowed to eat, sleep or use the toilet.

The new offence arises following a consultation that the Government conducted during the summer of 2014 on whether existing laws needed strengthening to take into account emotional abuse. The consultation found that 85% of respondents felt that the existing law does not currently provide sufficient protection to victims.

In the UK there is no specific statutory offence of domestic violence. Domestic violence is a term used to cover a range of behaviours. 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 gender or sexuality. The abuse can encompass, but is not limited to psychological, physical, sexual, financial and emotional.” At present domestic violence can be dealt with using a variety of existing legislation. For example, perpetrators could be charged with harassment, offences against the person (common assault, ABH, GBH) or unlawful wounding. The wide definition attributed by the Government to behaviour that constitutes domestic violence also incorporates “coercive and controlling” behaviour. This has led some critics to question why it is necessary to introduce further legislation when existing legislation can be used.

The introduction of the new offence gives rise to a number of considerations. Firstly, how will “coercive and controlling” behaviour be proved? It could be demonstrated through the use of supporting evidence such as abusive text messages and emails, or even control over the victim’s finances. However, this will inevitably involve complex investigations into the abuser/victim’s relationship. The police will find themselves having to consider forensic reports on mobile phones and computers as well as obtaining and analysing bank accounts. The resources required to conduct such investigations could be burdensome. Secondly, how easy will it be for the prosecution to demonstrate that the abuser behaved in a “coercive and controlling” way? In cases where physical evidence, such as text messages and emails, is not available, this could prove very difficult and the success of any prosecution could simply boil down to a Judge or juror’s interpretation of a range of behaviour.

There has been a mixed response to the Home Secretary’s announcement and some have questioned whether the proposed new offence will be effective or necessary. Indeed, some charities have expressed the view that the police do not effectively investigate cases where actual physical violence exists and so it is unlikely that they will have the inclination to investigate the arguably less serious offence of “coercive or controlling behaviour”. However, it is this firm’s experience that cases involving domestic violence are taken very seriously, and it is hoped that the new offence will provide police with another tool with which to protect victims.

Bail time limits

On the same day as the announcement about the new domestic abuse offence, Theresa May also revealed a proposal to limit the amount of time that an individual can be on pre-charge police bail, stating that it “cannot be right that people can spend months or even years on pre-charge bail with no oversight”. Following on from a consultation run by the College of Policing in the summer of 2014, the Home office has set out a number of proposals on limiting pre-charge bail including limiting it to 28 days, setting a framework for extending bail in extenuating circumstances, allowing some suspects to be released without bail pending further investigation, introducing court reviews of bail extensions and allowing the bailed person to challenge such decisions. The proposals are now subject to consultation which will end on 8 February 2015.

Presently, when an individual is placed on pre-charge police bail, there is no maximum time limit by which the police must either make a decision to charge or release the individual from bail. In certain types of cases, particularly fraud investigations which can take years to complete, this leaves the individual on police bail for an indefinite amount of time. This can be extremely difficult for the individual, who may find himself unable to work and placed in a state of limbo as to whether he will face prosecution.  The only way an individual can presently challenge the amount of time they have been on pre-charge bail is by way of judicial review. However, this is an extremely expensive and difficult process and accordingly such challenges are not common.

In announcing the Consultation, Theresa May recognised that the issue of pre-charge police bail has been of particular public interest in recent months. It clearly fulfils an important role. For example, it enables suspects to be subject to relevant conditions which in turn protect victims. However, Ms May also clearly understands that there is a need to ensure that proper oversight is exercised in relation to suspects who are placed indefinitely on pre-charge bail.

The Consultation makes a number of suggestions about the way in which bail reviews could be conducted. One proposal is that regular bail reviews are conducted, in the same way that pre-charge detention reviews are, and that these reviews will be cascaded upwards to the courts who will participate in reviewing an individual’s bail after a certain period of time. However, the difficulty with making it a responsibility of the court to review and/or extend pre-charge bail is that this may prove extremely burdensome for courts who may find themselves inundated with applications by police officers to extend bail.

The further obvious problem with time limiting pre-charge bail is that for some investigations a statutory limit, of 28 days or 3 months for example, will be a manifestly insufficient amount of time for the police to thoroughly investigate certain complex cases such as fraud, money laundering, large historic enquiries or where evidence had to be obtained under Mutual Legal Assistance from overseas jurisdictions. In investigations being conducted by the Serious Fraud Office, for example, it is not uncommon for the investigation to take a minimum of a year and often longer as it can involve detailed forensic investigation of IT, mobile phones and banking material. The Consultation does recognise this and proposes that a limited exemption be applied for these types of cases. It is proposed that an application to the Magistrates Court would be required for the exemption to apply. Whilst this proposal seems sensible, the Consultation does not make any proposals for limiting the maximum time that a suspect in these types of investigations should be placed on pre-charge bail. This would mean, therefore, that provided the relevant permissions were obtained from the Court, the individual could still be faced with a lengthy period on bail before any charging decision is reached.

There also appears to be some sensible safeguards suggested in the Consultation.  For example, the Consultation suggests that extensions to bail could be granted at only three months per extension and for cases where the period of bail is greater than 12 months this should be dealt with by the Crown Court. As it is more likely that lengthy periods of bail will be applicable to cases that would only be heard in the Crown Court it seems right that the Crown Court make such decisions. It is also a positive step for suspects that judicial scrutiny of pre-charge bail is being proposed. This will mean that prosecuting authorities will have to justify their position and any delays in their investigation if they want to keep a suspect on pre-charge bail for a lengthy period of time. It is hoped that this will encourage more proactive and considered police investigations. The ability to challenge conditions of bail will remain unaffected and will continue to be dealt with by the custody officer or the Magistrates court.

Whilst imposing time limits on pre-charge bail may incentivise police to conduct quicker investigations, the additional pressure to expedite investigations could lead to premature charging decisions or impede the police’s ability to investigate complex cases fully. It is for this reason that a careful balance needs to be achieved between advancing the rights of suspects not to be placed on pre-charge bail indefinitely and enabling the police to conduct investigations thoroughly so that proper charging decisions can be made.

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