Warning of pitfalls in abuse law — barristers advise caution over turning non-violent acts into crimes

Calls for caution have been made over plans to criminalise non-violent behaviour within couples – even where that behaviour has caused no harm.

Friday, 31st January 2020, 7:00 am
Updated Friday, 31st January 2020, 3:06 pm
The new legislation is designed to criminalise behaviour within relationships which does not necessarily involve threats or violence

A prominent criminal barrister has warned of the potential “dangers” of proceeding down such a route adding that, on the surface, the Northern Irish legislation could end up being much more far-reaching than in England and Wales.

Meanwhile the body representing criminal barristers in Northern Ireland has also urged vigilance when it comes to drawing up the details of what it will involve.

It comes after Naomi Long, Stormont’s newly-installed justice minister, revealed on Tuesday she aims to create a new “domestic abuse” law.

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This is different from domestic violence, in that it would criminalise non-violent behaviour which is “controlling or coercive or amounts to psychological, emotional or financial abuse” (although the new planned law will also contain some provisions for dealing with violence as well).

It will become an offence for a person to engage in any such behaviour “on two or more occasions”.

One of the key elements of this new definition of abuse will be that “harm would not have to be caused; rather an offence will be committed where a reasonable person would consider the behaviour likely to cause harm”.

The maximum penalty envisaged under the new law is 14 years.

Matthew Scott, a criminal barrister based in central London, who often writes on matters of law for publications such as The Spectator, said at first glance, it looks like the planned NI law “may go much further than the law in England and Wales”.

For instance, he told the News Letter in England and Wales an offence says abusive behaviour must have a “serious effect” on a victim. But in the planned NI law “there doesn’t seem to be a similar requirement... merely a ‘reasonable’ likelihood of harm”.

He also said the maximum sentence in England and Wales for “coercive and controlling behaviour” is five years.

He further added that the law in England and Wales does not cover behaviour which occurred in another country, whereas the NI law would.

“There are, of course, obvious evidential difficulties with proving ‘emotional’ or ‘psychological’ abuse. Such things are more subjective than a black eye or a cut, which is not to say it’s necessarily wrong to criminalise them, but there are dangers,” he said.

Meanwhile the chairman of the Criminal Bar Association, Gavan Duffy QC, told the News Letter he welcomes Naomi Long’s planned law.

While existing laws can punish many crimes within the home, the act of “coercive control is often at the heart of domestic abuse”.

He added “it is right that the minister takes the time to allow for the scrutiny of proposals through our devolved Assembly”, adding there is a “need for careful consideration to be taken in the drafting of any legislation to ensure that it is fit for purpose”.

“The criminalisation of certain behaviours as part of the creation of this offence is not without difficulty,” he said.

“It’s often the subtle nature of this type of behaviour against a victim which is so problematic and care needs to be taken that any legislation is effective in targeting the specific scenarios envisaged under it.”

He concluded: “Furthermore, the Bar also believes that a wider public education campaign will be required to highlight and educate as to the terms of any new offence and in particular the criminalisation of certain behaviours for the first time.

“In addition to public education, training of criminal justice professionals including police, prosecutors and the judiciary will be necessary if an effective criminal justice response is to follow the reporting of an offence.”

WHAT IS EMOTIONAL ABUSE?

There has been a push in recent years to expand criminal responsibility beyond the sphere of domestic violence into the wider category of “domestic abuse”.

For instance, the NHS says that if you answer ‘yes’ to any one of these questions, then you may be a victim of emotional abuse:

1) Does your partner ever belittle you, or put you down?

2) Blame you for the abuse or arguments?

3) Deny that abuse is happening, or downplay it?

4) Isolate you from your family and friends?

5) Stop you going to college or work?

6) Make unreasonable demands for your attention?

7) Accuse you of flirting or having affairs?

8) Tell you what to wear, who to see, where to go, and what to think?

9) Control your money, or not give you enough to buy food or other essential things?

10) Monitor your social media profiles, share photos or videos of you without your consent or use GPS locators to know where you are?

“Coercive control” became a crime officially in England and Wales in 2015.

And last year, Scotland outlawed “coercive and controlling behaviour” too.

The Department for Justice, when pressed on what would constitute emotional or psychological abuse in its own new law for Northern Ireland, said “guidance will be brought forward under the bill which give examples of what would constitute abusing behaviour” but that the legislation will “not be prescriptive”.

The News Letter further asked the department whether, for example, a woman repeatedly cheating on her boyfriend would fall under the umbrella of “abuse” under the new law.

The department said: “It is not considered that infidelity falls within the scope of the legislation.”

Another proposal of the department is that it will “reduce the potential for an individual to be further victimised during criminal proceedings”.

Asked what this is likely to involve, the department said it will “include a prohibition on a defendant being able to cross examine a victim of domestic abuse as well as automatic eligibility for consideration for special measures in court”.

WHAT DO OTHER AGENCIES THINK OF THE PLANNED LAW?

The Law Society, representing the Province’s solicitors, was also asked what it made of the new proposals.

Its president Rowan White said: “The Law Society welcomes the priority which the Justice Minister and the Assembly have given to the implementation of the much-awaited domestic abuse legislation.

“The recognition of coercive control as an offence in this jurisdiction will offer additional protection to victims of domestic violence”.

Meanwhile Mark Lindsay, chairman of the Police Federation for Northern Ireland, which represents rank-and-file officers, said: “Anything that strengthens the law and increasing reporting of domestic abuse in all its forms is to be welcomed.

“Policing works in partnership to prevent domestic abuse.

“However, investigation around criminal offences is the responsibility of the PSNI and, as such, increased reporting is further proof that resources need to be increased to effectively deal with the matter and bring justice to victims.”