Serious Crime Bill [HL]

Written evidence submitted by Ms Vanessa Bettinson (SC 12)

Introduction:

This submission is by Ms Vanessa Bettinson, FRSA, a senior lecturer in law at Leicester De Montfort Law School (http://www.dmu.ac.uk/about-dmu/academic-staff/business-and-law/vanessa-bettinson/vanessa-bettinson.aspx ). Her area of research covers issues of criminal law and justice and human rights for which she has written several articles published in internationally esteemed and peer-reviewed journals. In recent years her specific focus has been in relation to legal responses to domestic violence. In addition to publishing academic articles on this subject, she has also been actively engaging with members from academia, statutory and third sector in her local area. The culmination of these engagements has led to two conference events (2013 and 2014 respectively) co-hosted and organised by Ms Bettinson at De Montfort University, focusing on domestic violence. She is currently co-editing (with Ms Sarah Hilder, DMU) an edited book with Palgrave entitled: Domestic Violence. Interdisciplinary perspectives on protection, prevention and intervention (projected publication date December 2015).

This submission has not been previously published or circulated. The arguments made will form part of an academic article which is currently in progress and co-authored with Dr Charlotte Bishop, university of Exeter.

Contents:

Summary

1. Offence of coercive control

2. Offence of domestic violence

3. Procedural matters

Annex 1

Summary:

The focus of this feedback concerns the offences of coercive control and domestic violence proposed in the Notice of Amendment given on 7th January 2015 to the Serious Crime Bill. Whilst the view of the author is to endorse the legislative’s intention to strengthen the criminal justice response to domestic violence with the creation of a discrete offence, some reservations and suggestions are expressed. The proposed substantive offences in their current drafted form contain flaws which will not achieve the intended outcome of addressing a legislative gap in the legal framework of domestic violence. This feedback will therefore suggest several changes that the Public Bill Committee may wish to consider.

1. The offence of coercive control

1.1 The amendment to the Serious Crime Bill is an accurate reflection of the Home Office’s intended response following the Strengthening the Law on Domestic Abuse Consultation – Summary of Responses (December 2014). This document correctly recognises that there is a gap in the current legal framework around patterns of coercive and controlling behaviour.

1.2 This legislative gap means that there is no criminalisation of coercive and controlling behaviour. Such behaviour is however, a common feature to many relationships where domestic violence occurs as outlined in empirical research from the study of social sciences and the harm is considerable. (Dutton and Goodman: 2005; Kuennen: 2007; Stark: 2009; Williamson: 2010) It is also true that not every incident of domestic violence will involve coercive control and where single incidents occur and sufficient evidence is available, the prosecution are able to bring charges, most commonly a non-fatal offence, for these single incidents (Burton: 2008; Crown Prosecution Service: 2013-14).

1.3 Any discrete offence seeking to address the coercive controlling behaviour and the harm it causes must not be used as a replacement for all incidents of domestic violence as there are different forms (Kelly and Johnson: 2008). Where possible the prosecution should continue to bring charges for incidents of physical violence where it satisfies the Full Code Test.

1.4 An offence named coercive control is preferable to domestic abuse. The phrase domestic abuse is currently confusing and may promote the idea that abuse is less serious than domestic violence. Domestic abuse is more commonly used by health professionals to refer to non-physical forms of domestic violence. Coercive control can take the form of physical, non-physical behaviours or a combination and therefore it is a sensible basis for a discrete offence (Groves and Thomas: 2014; Williamson: 2010; Stark: 2009).

1.5 Clause NC3 states that it creates ‘offences’ the heading suggesting these offences are called coercive control and domestic violence. However, the first clause clearly outlines the proposed offence of coercive control followed by the penalty a conviction would attract for it. Within the entire amendment there is no other indication that domestic violence would form a discrete offence with its own penalties [discussed below in para. 2.1].

1.6 The proposed offence of coercive control states that it applies to a person who either commits an act or a course of conduct of the prohibited behaviour. The inclusion of merely an act of coercive control is problematic as it draws the parameters of the offence too widely and maintains a focus on single incidents (Hanna: 2009; Stanko: 2002; Burton: 2008). The Home Office paper Strengthening the Law on Domestic Abuse Consultation – Summary of Responses (December 2014) p. 11 states that the offence is intended to deal with the ‘persistent nature of the behaviour’ and ‘specifically criminalise patterns of coercive and controlling behaviour.’ Enabling the offence to apply in the face of just one act runs in direct contradiction to this aim. Creating a criminal offence that allows merely an act of coercive control will subject the proposed offence from justifiable opposition from those who are concerned that it will criminalise ordinary everyday behaviour between partners (Griffiths: 2014). It is recommended that the clause should remove the phrase ‘any person who commits an act of or’ and replace it with ‘any person who’.

1.7 The proposed offence of coercive control states that it occurs where the a person ‘engages in a course of conduct’ a reflection of the language used in existing statutory based criminal offences for example in the Protection from Harassment Act 1997. The retention of the phrase course of conduct seems unwise, given that judicial interpretation of it in respect of cases involving intimate partners has been so restrictive as to amount to a legislative gap warranting the creation of the proposed offences. For example in R v Hills [2010] EWCA Crim 123 the court did not find a course of conduct was established between two incidents ‘since the parties continued to live with each other through the relevant period’ [at para. 12] and similarly R v Widdows [2011] EWCA Crim 1500. To maintain the focus of the offence on the offending behaviour and to encourage fresh judicial understanding of the nature of coercive and controlling behaviour it would be appropriate to avoid the phrase ‘course of conduct.’ More accurately as an alternative and in line with the intentions expressed in the Home Office paper Strengthening the Law on Domestic Abuse Consultation – Summary of Responses (December 2014) p. 11 the phrase ‘patterns of behaviour’ ought to be considered. This phrase reflects the programmatic nature that domestic violence may involve (Williamson: 2010).

1.8 The term ‘coercive control’ is not defined within the clause. Reference is later made in a subsequent clause relating to domestic violence to ‘coercive controlling behaviour’ and ‘coercive or threatening behaviour’. It is not clear whether coercive control in respect of the offence ‘coercive control’ is intended to involve both ‘coercive controlling behaviour’ and ‘coercive or threatening behaviour’ or indeed if it is a separate term. Legislation that seeks to enact the proposed offence ought to make the meaning of coercive control explicit within the text (Hanna: 2009).

1.9 The term ‘domestic setting’ also requires further clarification. Without this clarification, appeal cases will emerge which may provide a narrower meaning than is intended. A domestic setting should not be defined in geographical terms, for example, as coercive and controlling behaviour can take place outside the physical home place (Groves and Thomas: 2014). An indication of the types of domestic settings that would apply to this offence would assist the prosecution and judiciary in applying the offence. Furthermore, a list would add clarity to the general public about what coercive control in a domestic setting looks like and that it is a criminal offence. Enabling victims to understand that they do not have to experience physical forms of violence before the criminal justice system will respond (Walby and Allen: 2004).

1.10 For the purpose of substantive criminal law the offence of coercive control should have a clearly expressed mens rea requirement. Currently, this is not the case in the proposal. Reference to the appropriate state of mind that would apply where the defendant uses ‘coercive controlling behaviour’ or ‘coercive threatening behaviour’ is contained in a later clause relating to domestic violence (NC5(3)). This clause provides an objective requirement and reads as: ‘a person shall be deemed to have undertaken a course of conduct knowingly if a reasonable person in possession of the same information would conclude that the individual ought to have known that their course of conduct would have the effect’ that it would ‘cause the victim or their child or children to – a) fear that physical violence will be used against them; b) experience serious alarm or distress which has a substantial adverse effect on the victim’s day-to-day activities.’ This objective approach is welcomed as it avoids perpetrators escaping liability by arguing that they had no idea that such harm would occur.

2. Offence of domestic violence

2.1 It does not appear that the proposal in NC5 in fact creates a discrete offence of domestic violence. The clause is headed ‘definition of domestic violence’ and no penalties are provided where the definition can be established. It is sensible to have a legal definition of domestic violence that accords with the non-statutory definition in use since March 2013. Mixed messages about the definition of domestic violence and a lack of understanding of what it entails was one reason for the negative findings concerning police responses in Her Majesty’s Inspectorate Constabulary, ‘Everyone’s business: Improving the police response to domestic abuse’ (HMIC: 2014). The clause however, doesn’t explain when the definition should be used which is problematic particularly as s. 9, schedule one para 12.9 Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides a narrower legal definition stating that ‘"domestic violence" means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.’ To have two separate legal definitions of domestic violence will not diffuse the confusion around what domestic violence entails, in the authors’ opinion. The proposal should consider whether it wishes to create two competing legal definitions of ‘domestic violence’ and if so legislative change should clearly convey when the different provisions apply. The legislature should also be mindful that family courts and criminal courts are confusing for victims of domestic violence. If they experience different attitudes in the family court compared to a criminal court their general experience of the legal response is unlikely to distinguish between the two systems. (Robinson: 2007).

2.2 Where a single act of physical violence or criminal damage can be proved, the prosecution should be encouraged to use existing offences regardless of the domestic setting. Where the physical violence is part of a pattern of behaviour amounting to coercive control, it may be preferable for a charge to brought under the proposed offence (s) alone. Duplicity of charges must be avoided and guidance would need to be provided to the prosecution about this. The Law Commission is in the process of a consultation concerning the reform of the Offences Against the Person Act 1861. Reform would be welcome in the context of these offences between intimate partners, as psychological harm as opposed to psychiatric harm is not recognised under the Offences Against the Person Act 1861 (R v Dhaliwal [2006] 2 Cr App R 24; Munro and Shah: 2010)

3. Procedural Matters

3.1 Clause NC3(3(c )) seeks to provide the court with the power to attach a rehabilitative programme to a conviction of a proposed offence. Court sanctioned rehabilitative programmes do have a higher success rate that other forms of penalties (Gondolf: 2002; Lewis: 2004). It is sensible to provide this optional power to the court although adequate resources are essential to ensure the availability of appropriate programmes (Bettinson and Dingwall: 2012; Bettinson and Dingwall: 2013). In addition, the quality of programmes would need to be overseen by an appropriate independent body. A power to allow the court to make an order for costs towards the programme in lieu of the victim surcharge could be a consideration.

3.2 Where children are involved in a case, family proceedings may also be taking place during the course of the criminal proceedings. If a conviction is secured a victim ought to be granted legal aid in child contact proceedings. This would not currently be the case where coercive control is not embedded into Legal Aid, Sentencing and Punishment of Offenders Act 2012 [see para. 2.1 above]. Removing any anomaly the 2012 act and the proposed offences may have would give greater substance to any domestic violence order (s. 28 Crime and Security Act 2010) issued under NC3 (3(d)).

3.3 Powers proposed under NC3(3) and NC6 are appropriate in the author’s view.

January 2015

Annex 1

References

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