A new legislation addressing domestic abuse came into force on 29 December 2015.

The new criminal legislation is intended to address controlling and coercive behaviours from one person to another where there is, or has been, an intimate relationship or where they are members of the same family. The maximum penalty for the new offence in England and Wales will be five years in prison and/or a fine. Thus the new legislation is being hailed as a ‘landmark moment’ by Women’s Aid and it is perhaps a reflection on the serious impact that domestic abuse has on families and wider society.

The legislation

The new legislation is set out in s76 of the Serious Crime Act 2015. It provides (in simple terms) that a person commits an offence if he or she repeatedly or continuously engages in behaviour towards another person that is controlling or coercive, and at the time those people are personally connected, the behaviour has a serious effect on the recipient and the person engaging in that behaviour knows, or ought to know, that it will have a serious effect on the other.

The terms controlling and coercive are not specifically defined and will likely be subject to challenge as the CPS try to prosecute perpetrators of domestic abuse under this new legislation.

What is defined is the phrase ‘a serious effect’. A perpetrator’s behaviour will have a ‘serious effect’ on the victim if:

  • It causes the victim to fear, on at least 2 occasions, that violence will be used against them; or
  • It causes the victim serious alarm or distress which has a substantial adverse effect on their day to day activities.

The legislation will apply to those who:

  • Are, or have been, married to each other or are, or have been, civil partners;
  • Are relatives;
  • Have agreed to marry one another or have entered into a civil partnership agreement;
  • Are both parents of the same child;
  • Have, or have had, parental responsibility for the same child.

The defence

There is a defence available. That defence will apply where the alleged perpetrator can show that they were:

  • Acting in the best interests of the person alleging the abuse; and
  • The behaviour was in all circumstances (objectively) reasonable.

This defence is not available in relation to behaviour that causes the victim to fear that violence will be used against him/her.

It is expected that the types of abuse that will be provided for under this legation will include, for example, a pattern of threats, intimidation, control of social media and financial abuse. However, the legislation is clear that such behaviour must be repetitive or continuous in nature and must cause the victim to fear that physical violence will be used against them on at least 2 occasions or cause serious alarm or distress which effects their day to day activities.

Evidence of such behaviour can include bank statements (which show that the perpetrator is controlling the victim’s finances), social media records, telephone/text message records and witness statements. It stands to reason that if there is evidence of threats of violence from the perpetrator, it will be easier to prosecute those where there is no evidence of threats of violence and the victim is relying on evidence that shows that he or she has been caused serious alarm or distress which has had a substantial adverse effect on their day to day activities.

In a case where a stay a home parent has been experiencing controlling or coercive behaviour from their partner but not feared that physical violence will be used against them, what would they need to evidence to show that their day to day activities have been affected? They could not rely on absence from work and may struggle to show that their day to day activities have been affected in any way. No doubt this will become clear in due course as new cases come before the courts.

The bar for a successful prosecution is set high. The criminal standard of proof (beyond reasonable doubt) will apply and it would seem that there is potential in many cases for the evidence provided to fall short of convincing a Court or a jury that such a standard of proof is reached. In those circumstances there is a risk that the victim of abuse may be re-victimised by the experience of the Court process and the efforts of the police and the CPS to bring the matter to trial. It will be interesting to see what the statistics for successful prosecutions are under this legislation in 6-12 months time.


Amanda is a solicitor in the family team, based in Exeter. If you would like to contact the team, then please call 01392 210700 or email family.exeter@stephens-scown.co.uk.