Court of Appeal

Abstract

Keywords

Actual bodily harm assault coercive and controlling behaviour domestic violence domestic abuse perverting the course of justice sentence length seriousness of offence

On 19 May 2017, Conlon (C) was sentenced to a total of 4½ years’ imprisonment, which was made up of 4 years for coercive and controlling behaviour in an intimate or family relationship, 16 months, running concurrently, for assault occasioning actual bodily harm and 6 months’ imprisonment, running consecutively, for perverting the course of justice. C was also made subject to a restraining order under s. 5 of the Protection from Harassment Act 1997 to run indefinitely. The order excluded C from the county of Sussex with the only exception granted for visits to his mother. The visits were ordered to be notified to the police 48 h prior to commencement, detailing the date and exact time and duration of visit. With leave of a single judge, C sought to appeal his sentence.

C began a relationship with the complainant in September 2015. It was noted that from an early stage C had been controlling and violent towards the complainant. Between September and November 2015, the police were called numerous time by the complainant, her mother or the neighbours. Each time the complainant either refused to make a statement or retracted statements given, having been ordered to do so by C. During October and November of 2015, C was arrested twice for assaulting the complainant. The second occasion allowed the complainant the opportunity to tell the police that C controlled every aspect of her life. He told her what to wear, how to style her hair, limited her contact with friends and work colleagues and checked her phone regularly. While on police bail for the second assault, C attacked the complainant again. This assault followed a night out, during which the complainant had spoken to another man at the bar. C became very angry and the complainant left the bar alone. She returned home where C arrived shortly after and began punching her to the face and kicking her to the body. The police attended and C remarked that he would never hit a woman, denied any violence and told the police that this, like previous complaints, would not go anywhere. Officers noticed the complainant had injuries to her cheeks, arms and fingers, her neck was in a brace and clumps of her hair had been pulled from her head. C was arrested for assault occasioning actual bodily harm.

The indictment charging coercive and controlling behaviour related to the period between December 2015 and April 2016. During this period C pleaded guilty to an offence under the Malicious Communications Act in January 2016, was removed from the property numerous time by the police and was served with an immediate domestic violence protection notice followed by a 28-day domestic violence protection order. C breached the order on 16 March 2016 and again on 14 April 2016 and was eventually arrested for controlling and coercive behaviour on 14 April, where he asserted to officers that it was the complainant who controlled him, and he only wished to end their relationship.

Following arrest for the coercive and controlling behaviour, C continued to contact the complainant by text message and continued to attend the property of the complainant. On 8 June and 15 July, neighbours contacted the police after hearing the complainant screaming ‘get off me’ on both occasions. The behaviour continued to escalate throughout August with the complainant retracting statements after calling the police on two such occasions. On 28 August, C was arrested and charged with assault occasioning actual bodily harm, sexual assault and rape and was bailed subject to a condition that he did not contact the complainant.

Breaching the order again, police discovered C at the home of the complainant on 24 September 2016. C was charged further and remanded in custody. He continued to contact the complainant by letter and telephone. It was noted during trial that C wrote ‘hundreds of pages’ to her and instructed her to write to him every day, listing her name as his sister ‘Lena’ to mislead the prison into allowing the contact. The letters ‘prevented her’ from breaking up with him and many were written to dissuade and discourage the complainant from attending court to give evidence against him.

C changed his not guilty plea for the assault to guilty on 17 February and his not guilty plea for the coercive and controlling behaviour count to guilty on 20 March, the fixed trial dates for the respective charges. He continued to assert that the complainant had controlled him, had exhibited violence on more than one occasion and that her jealousy was intolerable.

C appealed on the basis that the trial judge had imposed a sentence that was manifestly excessive. C contended that insufficient account had been taken of the complainant’s behaviour, which if fully considered, would have lessened the seriousness of the coercive and controlling behaviour from the highest category to a lower category, carrying a lesser term.

Held, dismissing the appeal, the trial judge correctly accounted for the length of sentence, categorising the offence as one of the more serious that had come before the court. Giving judgment in the Court of Appeal, Sir John Royce, Recorder of Maidstone, outlined six reasons to support the sentencing judge’s conclusion. First, C’s behaviour was sustained and persistent over the course of 14 months. Secondly, C’s behaviour included a count of physical violence. Thirdly, C had disregarded bail conditions on numerous occasions. Fourthly, C’s behaviour on the many occasions of police attendance was abusive and dismissive. Fifthly, C’s behaviour went beyond the complainant, extending to the complainant’s family, her neighbours and the police. Lastly, all counts were compounded by the perverting offences. The trial judge accounted for C’s intoxication correctly as an aggravating factor. In judgment, the Recorder of Maidstone had noted that the trial judge had been correct in noting C’s behaviour as ‘deeply worrying’ (at [22]) and that ‘the extent of the appellant’s criminal behaviour’ represented ‘one of the more serious offences of this type’ (at [23]). The Recorder also noted that it ‘ill behoves an offender such as this appellant to complain of the conduct of the controlled and coerced victim where he has nonetheless persisted in his conduct’ (at [31]). The Recorder further commented that although severe, the sentence of 4 years was just in ‘reflecting the gravity of the offending’ (at [31]). Finally, the court set out a test for future coercion cases, emphasising the subjective element of the offence, stating that ‘in our judgment, the manifestations of the serious effect on the victim of such behaviour by the offender will vary from case to case’ (at [26]).

Commentary

Section 76 of the Serious Crime Act 2015 created a new offence of coercive and controlling behaviour to specifically target the psychological abuse felt by the victim at the hands of another within an intimate setting, without the necessity of violence or any physical attack. At the time of the offence, the defendant must engage in behaviour that is controlling or coercive on a repeated basis (s. 76(1)(a)), the defendant must be personally connected to the victim (s. 76(1)(b)), the behaviour must have a ‘serious effect’ on the victim (s. 76(1)(c)) and the defendant know, or ought to have known, that his behaviour would have a serious effect on the victim (s. 76(1)(d)). Behaviour having a ‘serious effect’ is defined in the 2015 Act as behaviour that causes the victim to fear, on at least two occasions, that violence will be used (s. 76(4)(a)) or it must cause the victim serious alarm or distress, which will have a substantial adverse effect on the victim’s usual day-to-day activities (s. 76(4)(b)).

A defence to controlling or coercive behaviour is available if the defendant can prove that he was acting in the best interests of the defendant (s. 76(8)(a)) or that the behaviour was reasonable in the circumstances (s. 76(8)(b)) but, crucially, is not available to a defendant who causes the victim to believe that physical violence will be used against them (s. 76(10)).

Introduced to capture non-physical intimate partner abuse, s. 76 of the Serious Crime Act outlines the need to criminalise behaviour that falls short of physical violence but causes prolonged and sustained damage to a victim. Recognising the impact that emotional and psychological trauma caused by coercive and controlling behaviour has upon its victims, the s. 76 offence is the most severe form of assault outside of the Offences Against the Person Act and carries a sentence of up to 5 years’ imprisonment upon indictable conviction.

In the present case, C did not use the applicable defence set out under s. 76(8), choosing to put forward as his only ground of appeal, that his victim was to blame for the controlling behaviour. Under s. 76(10), due to the count of assault occasioning actual bodily harm, C would not have been able to successfully claim any defence under the 2015 Act, as he imposed violence upon his victim. The appeal was profoundly dismissed by the Court of Appeal. Emphasising the feelings of the trial judge, the Recorder echoed the statement that ‘nothing done by the complainant justified or could justify the actions or reactions of the appellant’ (at [28]). The effect of removing the power of ‘victim blaming’ for any kind of justification of C’s behaviour allowed the trial judge to correctly adjudicate on the nature of C’s behaviour. This, coupled with C’s constant dismissal of the ability of the police to advance a conviction and C’s determined path of behaviour towards the complainant, allowed the trial judge to assess the relevant elements of the crime and award a severe but just sentence. In dismissing the appeal and refusing to reduce the conditions of the restraining order, the Court of Appeal noted that C ‘declined every opportunity, if that were truly his wish, to have nothing more to do with the victim’ (at [31]).

It should be noted that C was sentenced under the relevant sentencing guidelines in force at the time. The Sentencing Council subsequently published new definitive guidelines to be used from 24 May 2018 when sentencing cases involving domestic abuse. The guidelines apply to ‘a range of violent and/or controlling or coercive behaviour’ (Sentencing Council, Overarching Principles: Domestic Abuse Definitive Guidelines, published 22 February 2018, at [pg. 2]).

One of the more serious coercion cases brought to appeal, the present case examines and sets out the test to be used in the application of the new law. In judgment, the Recorder of Maidstone sets out the subjective test in which each case was to be examined individually, allowing for the presentation of an evidence-led narrative, which the prosecution can put before the jury.

The introduction of the test is crucial to future coercion cases, as the implementation of the s. 76 offence requires the police to move away from the traditional model of ‘event/violence-based’ police investigation in favour of the recounting of a story, a narrative that must be contextualised to gain an insight into and overall picture of the abuse.

In the present case, the involvement and conduct of the police was crucial to the conviction, and it is noted that the Sussex police force attain a high conviction rate in instances of domestic abuse, pitching at a 78.5% conviction success rate against a UK rate of 75.7%. In assessing each element as it occurred, the police involved in the investigation were able to build a substantial amount of evidence relating to the behaviour of C and the victim’s suffering, utilising the new law to assist in prosecution.

The complainant in the present case appears to have followed a very familiar pattern of behaviour, consistent with police and CPS findings in this area. Despite obvious violence and controlling behaviour, she often retracted statements out of fear, compliance and a sense of pity and duty she felt towards C.

Difficulties, such as these, are problematic in prosecuting domestic abuse cases, as, traditionally, a prosecution case often hinges on the testimony of a victim. Before the inception of the s. 76 offence, victims of domestic abuse and coercive control were left vulnerable to prosecution for contempt of court for refusing to give evidence against their abuser (see R v A [2010] EWCA Crim 2913. For further discussion of the R v A, see H. Smith, ‘Perverting the course of justice by withdrawing a truthful complaint (Case Comment)’, 75(3) JCL 181–4 (2011)). This is particularly pertinent to the present case, given C’s repeated attempts to dissuade the complainant from attending court.

As noted in the most recent CPS Violence Against Women and Girls report (2016–17; Tenth Edition), of a total of 22,737 unsuccessful prosecutions, the number attributed to ‘victim issues’ rose from 52.5% in 2015–16 to 54% in 2016–17. Although ‘victim issues’ considers factors of victim retraction and lack of victim support for the case, victim non-attendance rose to 28.3% of victim issues from 25.5% in 2015–16.

Recognising this as a real issue, the CPS are proactive in supporting policing initiatives to continue to increase the amount of successful coercive control cases under an evidence-led model of prosecution. This would see the continued inclusion of res gestae hearsay evidence and the narrative-based, evidence-led model of policing in the area, with the CPS committed to working with the government to further strengthen the law in this area with the formulation of the Domestic Violence and Abuse Bill.

March 2017, 38 police forces had reported 4246 incidences of coercive and controlling behaviour, falling under the remit of the s. 76 offence. Of these, 309 have reached prosecution at magistrates’ court level. Cases such as the present case provide the judiciary an opportunity to identify a set of criteria by which to continue successful prosecutions under s. 76 and to assist the police in the recalling of the narrative, giving voice to the victim and quantifying the trauma felt by psychological control.

Sian Dickson