Life looked a bit like the chocolate box house they shared together in a pretty countryside village. 20 years of marriage. Well paid professional jobs. International travel. Private school for the kids. Ivy on the stone walls, roses tended by the gardener. A new convertible sports car. Sure there were pressures. Long hours, long commutes. The ‘work life balance’ that plagues the middle classes. Still, socialite smiles all round.
But for Stephen, time was running out on his marriage. He didn’t know it yet, but in just a few months time he would find himself off work, without a home, facing a Crown Court Judge and personal, financial and emotional ruination, all whilst wandering along a path having to ignore his own children.
There had been another row at home. It seemed to be always so these days. Angry, viscous words, of the sort that can only ever come from a former lover. What was it about? What was it ever about? You do not have to say anything but it may harm your defence if you fail to mention when questioned something that you later rely on in court. Anything you do say may be given in evidence.
Stephen had never been in a police cell. For hours. And hours. He wasn’t that sort of person. And what did Controlling and Coercive Behaviour have to do with anything? It must be a mistake, a nightmare for sure, but really? Let’s get it all cleared up and get home. To a nice long bath perhaps. He had never had a police interview. Or bail conditions. So he wasn’t expecting the character assassination from his wife. Yes they were having a rocky patch. She had mentioned divorce. But they were mature, sensible adults. They could work it out. They still had their children to parent. Think of the kids. He wasn’t expecting that withering, cynical, determined stare from the investigating police officer across the table. Or the worldly, apathetic shrug of the desk sergeant. They all say that.
You must not contact directly or indirectly your soon to be ex wife or your beloved children (who really should be kept out of this, but heh, tough). You must not go to your home where all your stuff, your whole life, is currently residing. Why? Because your soon to be ex-wife has alleged that you have been controlling and coercive. What do you mean it’s just her word against yours? You can tell that to a jury. We believe the victim. How do you plead? Remember, you get credit for pleading guilty. How do you plead? The prosecution will ask for massive costs if you lose after a trial. How do you plead? You won’t get your own legal costs back even if you win. How do you plead? Do you understand the strength of the case against you? How do you plead? It will go on for months and months and you will still have bail conditions throughout. How do you plead? Not guilty. I. Am. Not. Guilty.
Stephen wasn’t sure how to feel when he found out she had been having an affair for the last 6 months. He had his suspicions of course. It kind of explained everything. The long absences with ‘work’. The distance. The confrontation. The divorce request. And he had been foolish to try and go through her phone. He had been angry and hurt. Sure he did most of the banking, he always had done, that just the way they did things. And no he didn’t get on with some of her family. He wished he had spent less time working too. They earned well, but they still had to pay the mortgage and school fees, they still had to budget. He regretted those angry words. Ah, so you admit it then?
Stephen’s case was an example (a real example, with details altered to protect those involved) of the relatively new offence of Controlling and Coercive Behaviour. It was created in 2015 to tackle aspects of domestic violence that had otherwise been beyond the scope of the criminal law. The offence has been little used by police or the CPS, after the political fanfare surrounding it coming into force. Detailed statistics haven’t been made public, but there have been only a handful of prosecutions. Most criminal defence solicitors will never have dealt with such a charge.
Domestic violence is abhorrent in all its forms. Perpetrators maybe male or female, although the vast majority of criminal defendants are male. It is absolutely right that domestic abuse is rooted out and brought into the glare of the courtroom. No person need be battered and bruised (or worse) before the criminal law will intervene. Abusive control is at the heart of domestic violence, a profound breach of the trust implicit in any relationship to be respected and safe.
It is clear that the new offence was designed to fill a loophole where such abuse and control fell short of a criminal assault and could not sensibly be shoehorned into a charge of harassment. It was a charge to get inside that chocolate box house, behind the facade of lifestyle or character or class or culture, to save a victim whose very will had been overborne by their abusive partner. It was seen as an offence to uphold traditional British values. It also just happens to mean that almost every divorcing spouse could find themselves in a police cell if their former partner wants to put the boot in. And from there, it is a desperately short step to the courtroom nightmare that Stephen endured. The publicity. No smoke without fire.
Much of this new law was plainly designed to criminalise the abusive man who dominates and abuses his partner. She cannot leave the house. She isn’t allowed friends. He belittles her in public. She is not allowed to spend money as she chooses. She must ask permission for everything. There might be violence, or threats of violence. Threats to reveal private photos perhaps. Defining domestic abuse is hard, it’s forms multi-faceted, hidden, humiliating. In many ways our law makers should be applauded for a law that catches those pernicious abusers who revel in controlling and abusing another human, for nothing more than their own selfish gratification, their own inadequacy.
Yet the most loving and respectful relationships necessarily involve ceding full control of one’s life to the will and desire of another. That is the sacrifice essential in a healthy relationship, marriage or otherwise. Practicalities, if nothing else, will see a sharing of responsibility at the very least. But when things turn sour, those relationships inevitably get redefined. What was one parent working and another at home with the children becomes not being allowed to carry on with the career. If one did all the banking and bills, the other, in anger, was never allowed control of the finances. And so it goes on. You never let me see my family. No, you never welcomed me in, always excluded me. You insisted I did all the housework. I had to work all the hours under the sun. That often visceral, unanswerable and ultimately miserable enmity so known to divorce and family lawyers now has a criminal label.
The apparent answer to these anxieties are the guidelines (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/482528/Controlling_or_coercive_behaviour_-_statutory_guidance.pdf) given to police and prosecutors about how to use this new law. It is a rare thing in our system to have statutory guidelines which must be considered by an investigator, but this is how such a broad law is meant to be tempered to something we might all agree should be criminal, but find it very difficult to define. Unsurprisingly, at this point it is very easy to see how very wrong things can get very quickly. Police officers are under-resourced and over-worked. They encounter the very worst in society all the time. They are rightly zealously committed to get the bad guys. They are told to believe their victims. The statutory guidelines to the investigation of Controlling and Coercive Behaviour read as eminently sensible. As long as you are happy to let that officer be judge and jury, and ignore the history of such discretion. Most suspects or defendants will feel that they need to prove their innocence, and in reality most of them are right, even if a textbook might say otherwise. Waiting to be innocent unless proven guilty doesn’t mean much when you’re on bail, suspended from work, or not seeing your kids.
There are obvious parallels with the Protection of Harassment Act of 1997. That law was brought in to deal with Stalking, a serious offence by which offenders could escape justice as long as they didn’t actually assault the victim. Commentators at the time worried about how broad the new law seemed to be, but the sensible discretion of the police and prosecutors was always the answer. Roll forward to 2015 and we find that the Protection of Harassment Act has become the most common way of prosecuting relationship breakdown, a commonplace offence in every magistrates court in a way never intended that almost never has anything to do with stalking. Instead we have a new offence of Stalking (and more on that another time …)
For Stephen, this recipe for disaster landed on his doorstep. An acrimonious ex-partner, who had intelligently researched the new law of Controlling and Coercive Behaviour, an officer quite content to use the fullest force of the criminal law to support her victim, and a CPS who can hardly refuse to prosecute an allegation of domestic violence (to conclude that there was not a realistic prospect of conviction is to conclude that their victim might not be believed, which would be their fault, which might result in a complaint against them personally under the Victim’s Charter). Allegations of domestic violence are routinely prosecuted where there is no realistic prospect of conviction. To say otherwise would belie the reality seen in courts up and down the country every day. For many closely involved it is price worth paying to get at least a few more of the bastards who do it. Bad luck if you’re caught up in all of that.
Most of us think that the police will root out those cases that are only about a relationship breakdown, not criminally abusive control. That’s what Stephen thought. Most think that a fair investigation will hear both sides equally. That’s what Stephen thought. Most think that the truth will out in the end. That’s what Stephen thought.
In the end we went back to the beginning. What about that convertible sports car he had bought? What had happened to that? We read about it in her sworn statement, so it must be true. What a thing to spend the family money on, all for his mid-life crises indulgence. What do you mean it was a £50 model car, for the kids. Surely the police must have been able to spot that straight away? Shouldn’t that have undermined everything? A short non-conviction restraining order later (after electing for a Crown Court trial) and the nightmare was receding, leaving only the fact that Stephen hadn’t seen his children for 9 months and still had an acrimonious divorce to resolve.
Coercive and Controlling Behaviour in a relationship can take many forms. Defining domestic abuse is hard. Cases like Stephen’s ultimately undermine the force of the law, a sledgehammer to crack an already broken relationship, leaving both parties and the children the poorer and more miserable for it. It’s not a price worth paying. The statutory guidance should be reviewed urgently, to ensure that the new offence is used when the abusive behaviour of a partner is properly criminal. If there is doubt, the resources spent prosecuting an alleged offender will be better spent on supporting an alleged victim, through counselling, good social care, relocation support where appropriate and, perhaps more important than all, restoring access to the Family Court.
Matthew Graham is a partner and Head of Crime at Mowbray’s