On 17 September 2019, the government announced its intention to add 14 offences to the Unduly Lenient Sentence (“ULS”) scheme, which gives victims and the wider public the right to ask the Attorney General (“AG”) to refer a convicted person to the Court of Appeal for his or her sentence to be increased.
The ULS scheme has already been in place for 30 years, but is currently confined to a limited number of offences, including murder, serious sexual offences, terrorism, robbery and serious fraud. In 2018-2019, 533 requests were made to the AG’s Office, 277 of which involved offences which fell outside the scheme. In the same period, 58 requests resulted in referrals to the Court of Appeal which, as at 17 September 2019, had passed increased sentences on 39 of those cases in total.
The proposed list of additional offences under the ULS scheme includes the relatively new offence of engaging in controlling and coercive behaviour in an intimate or family relationship, contrary to s.76 Serious Crime Act 2015. To establish a case against the defendant (A) under s.76, the prosecution must prove four elements:
- That A repeatedly or continuously engaged in behaviour towards another person (B) that was controlling or coercive;
- At the time of the behaviour, A and B were personally connected;
- The behaviour had a serious effect on B; and
- A knew or ought to have known that the behaviour would have a serious effect on B.
The personal connection between A and B will not usually be in dispute. Whether A’s behaviour can properly be described as “controlling or coercive” and whether it had a “serious effect” is a different matter. The definition of controlling and coercive behaviour is deliberately wide in order to cater for the myriad non-physical ways in which domestic abuse can occur. Restriction of access to family and friends, control of finances and criticism/humiliation are used as examples within the statutory guidance.
In order to establish “serious effect,” a prosecutor must either be able to prove that that A caused B to fear that violence would be used against B on at least two occasions (s.76(4)(a)) or that A’s behaviour caused B serious alarm or distress which had a substantial adverse effect on B’s usual day-to-day activities (s.76(4)(b)).
These types of allegations are unfortunately all too prevalent within the context of acrimonious relationship breakdowns. Whilst police action does not always necessarily follow, it can be extremely difficult when faced with both civil (family) and criminal proceedings to determine where a conduct-based divorce or financial petition ends and the criminal allegation begins. The offence was a ground-breaking step in the recognition and punishment of non-violent domestic abuse, and undoubtedly operates to protect true victims of the offence. However, the vagueness of its drafting and its potential applicability to an extraordinarily wide range of situations, unfortunately, make it a useful weapon in the armoury of someone seeking the upper hand in family proceedings who has not been genuinely controlled or coerced.
In circumstances where both parties are alleging equally bad behaviour against one another, and where family proceedings are fractious, a police report may feel like the logical next step for an aggrieved party to take. This takes on additional appeal when one considers the range of bail conditions at the police’s disposal. Standard bail conditions imposed at the point of arrest for this offence will include non-contact provisions (both in respect of the complainant and children or other relatives), as well as exclusion from the home or local area. Where a relationship breakdown is in the acute stages, these are remedies which may not otherwise be immediately available if sought via the family courts. Subsequent retraction by the complainant will not immediately result in an investigation falling away as the legislation and CPS guidance is predicated on the understanding that, in cases of real domestic abuse, a victim will often keep their abuse private and may have been pressurised into “dropping the charges”.
In circumstances where any allegation of criminal wrongdoing is made, but crucially within a domestic setting, the justice system is mandated to impose objectivity on a febrile situation in which both parties will understandably have deeply held, but inherently subjective, views as to the rights and wrongs of what has taken place. However, in an era of ever-damaging cuts to public spending and a significant move towards victim-led justice, this independence can sometimes appear (particularly to an accused person who maintains his or her innocence) to have been abandoned. A single police officer is usually asked to take on many roles, including being simultaneously responsible for the investigation and disclosure of evidence to the defence, as well as becoming the Family Liaison Officer who looks after the complainant’s welfare. If the matter is charged and proceeds to trial, the officer will also be called as a witness for the prosecution.
As a result of these myriad roles, objectivity can become difficult to maintain. Faced with regular complainant contact and allegations of an emotionally sensitive nature, this firm has experienced situations where officers have appeared to assume the role of the complainant’s advocate. This has affected the manner in which investigations are carried out, from a refusal to gather potentially exculpatory evidence from electronic devices or a refusal to speak to witnesses likely to be “on the suspect’s side.” Whilst the majority of officers do a good job in difficult circumstances, the combination of one malicious complaint with one overworked or inexperienced officer can have disastrous consequences for the suspect.
If the CPS determines that there is insufficient evidence to provide for a realistic prospect of conviction and declines to charge, a complainant may exercise his or her right under the Victims’ Right to Review scheme to have the matter looked at again by a second prosecutor. There is no equivalent right afforded to a suspect who is charged. The ability of complainants to hold the CPS to account for their failure to prosecute has received extra attention in recent weeks with legal action being brought against the CPS for a drop in their rape conviction rates. According to the End Violence Against Women (“EVAW”) coalition, a change in internal CPS policy has led to legitimate allegations of rape and sexual assault being dropped without charge, following the well-publicised criticism over disclosure failings. It remains to be seen whether the EVAW coalition will prompt a review by the CPS into how the evidential threshold in these cases is applied.
If convicted of controlling and coercive behaviour, the complainant’s account of the harm caused by the offence is taken into account by the judge when passing sentence, and in some cases can be the difference between a defendant being imprisoned or not. And if a complainant ultimately feels that his or her ex-partner has not been sufficiently punished, under the extended ULS scheme they will soon be able to seek an increased sentence from the Court of Appeal, via the AG.
It is only right that complainants should participate and have their voices properly heard in the criminal justice process. However, it is important that a balance is struck between this objective and the preservation of fundamental due process guarantees afforded to the accused, in order to guard against the possibility of vexatious complaints being converted into wrongful charges. After all, if an investigation or prosecution of one party to a relationship is likely to have a significant impact on concurrent family proceedings (particularly division of assets or child contact arrangements), it is only right that police and prosecutors should remain alive to the possibility of exaggerated or false complaints. Appropriate independence should be exercised throughout to ensure the safety of convictions and the integrity of the process itself. This should include the pursuit of all reasonable lines of enquiry, both supportive and contradictory to a complainant’s account, and the gathering of evidence which is both inculpatory and exculpatory of the suspect.
On a practical level, those instructed on behalf of clients experiencing acrimonious family proceedings where the other party alleges controlling or coercive behaviour should be prepared for the prospect that a police investigation may follow. In cases where both parties allege the same sort of conduct against each other, there is a danger that the use of the criminal justice system becomes an arms race between the two sides. Moreover, an individual reported to the police for controlling and coercive behaviour is unlikely to be viewed as anything other than retaliatory if he or she makes the same or similar allegations against the complainant. The CPS guidance operates directly against suspects in these situations, as the making of counter-allegations against a complainant is referred to as typical perpetrator behaviour.
It can become very difficult for a suspect to retrospectively gather evidence which tends to demonstrate that he or she did not engage in the type of behaviour alleged, and mere assertion will rarely be sufficient. Police cannot always be relied upon to actively seek out evidence detrimental to the complainant’s case. Whilst the burden of proof at court is ultimately on the prosecution, potential suspects are well advised to seek advice on how to preserve their evidential position, both for rebuttal of claims made during civil proceedings and in preparation for the worst case scenario of complainants turning to the criminal law to gain the upper hand.
 Attorney General’s Office; Outcome of Unduly Lenient Sentence Referrals (Statistical Data Set as at 17 September 2019). Available at https://www.gov.uk/government/statistical-data-sets/outcome-of-unduly-lenient-sentence-referrals