Reported cases of controlling or coercive behaviour are on the rise. Private client solicitors who have concerns that their client may be a victim of coercive control have to balance their duty of client confidentiality against the risk that the client might suffer harm if the offence isn’t reported to the police.
The solicitor cannot report the offence without the client’s consent. It's important for solicitors to recognise vulnerability in their clients and the protections available.
What is controlling or coercive behaviour?
Controlling or coercive behaviour is a crime that tends to arise mainly in intimate or family relationships. It was introduced in January 2015 by section 76 of the Serious Crime Act 2015 and came into force on 29 December 2015. It involves one person (A) repeatedly or continuously controlling or coercing another person (B).
In order for the offence to be successfully prosecuted, A’s behaviour must have a serious effect on B, and A should know that it will have this effect. The offence aims to enable victims of this behaviour to bring perpetrators to justice even if no physical violence is involved.
Examples of controlling or coercive behaviour:
- Economic abuse (controlling money)
- Threats of physical or sexual violence
- Emotional and psychological abuse
- Restrictive or threatening behaviours
Who can be affected?
A and B are considered "personally connected" if they:
- Are or were married or civil partners
- Have agreed to marry or enter into a civil partnership
- Are or were in an intimate relationship
- Have a parental relationship with the same child
- Are relatives
The law also covers abuse by ex-partners or family members who no longer live with the victim. Removing the requirement for the perpetrator needing to be living with the victim was an amendment brought into the legislation in April 2023 to ensure the offence also applies where the victim was never in an intimate relationship or lived with the perpetrator, or where this abuse continues after the relationship ends or the victim moves away.
What is a serious effect?
A serious effect means that the behaviour causes B to:
- Fear violence on at least two occasions
- Experience serious alarm or distress that affects their daily activities
Examples of serious effects:
- Changes in social behaviour
- Deterioration in physical or mental health
- Deprivation of access to medication, phone, or internet
Challenges in proving the offence:
- Lack of evidence from the victim
- Victims not wanting to engage in criminal proceedings
If found guilty, the perpetrator can face up to five years in prison or a fine.
Undue influence
Undue influence happens when someone uses their power to unfairly influence another person's decisions, depriving them of their free will. Undue influence is a ground on which a will can be challenged after death. It can also occur in the lifetime between persons where there is a relationship of trust and confidence and a transaction that appears unusual and requires explanation. Coercive control is different to undue influence but often the fact pattern supporting undue influence may also give rise to concerns about coercive control and private client lawyers should be alive to both.
Conclusion
There may be a need for private client practitioners to discuss the offence of coercive control with their clients where they have concerns about a client’s vulnerability and that they may be being unduly influenced.
Consideration may need to be given to whether to pursue a criminal prosecution in tandem with a civil claim and various factors will have a bearing on this. It's suggested that if the facts support both coercive control and undue influence, a prosecution in coercive control may assist the victim’s family in a post-death claim where they later need to take action to overturn a will they suspect was procured by undue influence.
Our team of will dispute specialists are well versed in matters affecting vulnerable clients and would be happy to discuss with you any queries you may have in this area. Please contact Lucinda Brown if you'd like to talk in more detail on the matter.
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