Family Law Act 1996 v Serious Crime Act 2015

On 29th December 2015 a new act came into force – the Serious Crime Act 2015 (SCA 2015). Section 76 of SCA 2015 created a new offence of coercive and controlling behaviour in intimate or family relationships. This provided an opportunity for victims of domestic abuse, not just domestic violence, to pursue prosecution of a perpetrator who has repeatedly engaged in abusive behaviour. In order to prove that a crime has taken place, there must be two or more incidents that occurred, allowing the perpetrator to exert power, coercion and control over the victim. Such control can be psychological, financial, sexual, verbal and emotional abuse. It can also include threats, humiliation, intimidation and isolation.

In the past, domestic abuse cases were commonly dealt with as common assault or prosecuted as criminal damage, threats to kill, harassment, threatening behaviour or sexual assault. But what if a victim’s circumstances are none of the above?

Prior to SCA 2015 coming into force, it was difficult to prove in criminal proceedings that such behaviour amounted to harassment within intimate or family relationships. This is evidenced in the case of Curtis [2010] EWCA Crim 123 where the defendant was convicted of causing fear by harassment, but this was following six incidents where violence was used or threatened.

In order to assist with proving coercive and controlling behaviour there is an array of evidence that can be used: phone records, emails, texts, social media, photographs, recordings, 999 transcripts, CCTV, lifestyle and household, medical records, witness testimonies, bank records, previous threats made to other family members and diaries, to name a few.

If convicted this offence carries a maximum sentence of 5 years. Further, ancillary orders can be made, such as compensation orders, criminal behaviour orders and restraining orders.

However, is prevention not better than cure? The Family Law Act 1996 (FLA 1996) has offered protection for victims of non-violent abuse in intimate and family relations for many years. The FLA 1996 can ensure that victims are not threatened, intimated, harassed or pestered and that their abusers do not instruct or encourage others to do so on their behalf. The FLA 1996 protects a victim by ensuring that they are not contacted in any way, including via social media. Further, the abuser can be ordered not attend the address of the victim or even be within a certain remit of his/her home. If protection is sought through the FLA 1996 and a Non Molestation Order is obtained, victims can seek to ensure that their children, if under 18 years of age are also protected. If an Occupation Order is obtained, then the abuser can be ordered to leave the family home. In addition to this if the abuser breaches a Non Molestation Order; it becomes a criminal offence carrying a maximum sanction of 5 years in prison.

Despite this, the Serious Crime Act 2015 is an iconic change in the criminal sphere, which will hopefully benefit many more victims. Some may even argue that the creation of this new offence may serve as a deterrent and thus a prevention of such abuse in the future. However, until this new law takes heed in this modern world, the Family Law Act 1996 will continue to serve victims of all types of domestic abuse.

Written by: Shevonne Weir

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