Can historic assaults be used as evidence for controlling and coercive behaviour?

14 September 2020

Not reviewed after the date of publication

Question: 

The offence of controlling and coercive behaviour requires the use of violence on two or more occasions. Can I justifiably use the historic assaults as evidence?

Unfortunately two previous offences of assault have become statute barred.

Answer:

The offence of controlling or coercive behaviour in an intimate or family relationship, created under section 76 of the Serious Crime Act 2015, came into force on the 29th December 2015. This offence does not have retrospective effect, meaning that charges cannot be brought in relation to behaviour(s) that occurred before the date the offence came into force.

However, please see the link below to the Statutory Guidance on 'Controlling or Coercive Behaviour in an intimate or family relationship' which offers guidance on dealing with such circumstances. After reading this guidance, it may become clear, that the victim has disclosed other incidents that have occurred more recently and may also be deemed controlling or coercive behaviour. In which case, we would recommend that you consult with the CPS.

Even though previous assault offences have become statute barred, if they occurred after section 76 came into force, i.e. after 29th December 2015, we see no reason why they could not be included in the complainant's statement as evidence of the controlling or coercive behaviour.

Any behaviour that occurred before the implementation of section 76, may still be adduced as evidence of bad character. We would advise that the information be included on an MG16 Bad Character Evidence form for submission of the file to the CPS, who can consider making an application to the court.

When preparing the file for the section 76 offence it would be usual for a Domestic Violence Index / Safeguarding Index to be prepared for disclosure purposes, and listed on the disclosure schedules. This will provide the CPS with the information regarding any previous domestic / safeguarding incidents.

To read more legislation about this, login to the legal database. 

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