Over the past 20 years the law has increasingly sought to control abusive behaviour within domestic relationships. There was a time when police demonstrated the greatest reluctance to turn out for what might have been considered “a domestic” – a disturbance, or worse, within the family home. That began to change in 1996 with the advent of the Protection from Harassment Act which aimed at preventing the phenomenon of stalking, but which has developed to become the prosecutor’s primary tool in curbing the unwanted and often irrational behaviour of one partner towards another, usually upon the breakdown of the relationship. Essentially the law provides that where one person pursues a “course of conduct”, which is not defined but may be taken to mean behaviour on two or more occasions which forms part of a pattern, which causes harassment, and which the perpetrator knew or ought to have known would cause harassment, then an offence is committed. An aggravated form of the offence exists where fear of violence is caused. So the law is widely drawn, and the courts have the task of distinguishing the usual wear and tear of relationship breakdown from behaviour which is truly offensive, and deserving of punishment.
To these provisions Parliament has now added a prohibition against domestic abuse arising from repeated, continuous controlling or coercive behaviour, by the introduction of the Serious Crime Act 2015 which came into force in December last year. This creates an offence where the conduct of one person, who is “personally connected” to another (this may be a partner or other family member) has a “substantial adverse effect” on another by virtue of such behaviour, and where the perpetrator should have known this would be the case. It appears to aim at those situations where low level but sustained manipulative or controlling behaviour damages the self esteem of an individual, say. Possible examples may be where one partner decides what another can wear, or where he or she may go, and with whom, or restricts their access to money. But what about a situation where one person looks at private messages on electronic media of a partner without permission, causing the other distress? Or hacks into their Facebook page? Or repeatedly questions their partner about their movements? It can be easily imagined that this type of conduct might arise where there is a suspicion of infidelity in a relationship.
As always, it is left to the good sense of the courts to decide where unwise, unkind or inappropriate behaviour ends, and offending begins. And for the practitioner, a careful and sensitive approach is required when advising in these types of case.
Steve Collett (Partner)
January 2016domestic abuse harassment serious crime act 2015 Article