1. Introduction
This decision clarifies how allegations of controlling or coercive behaviour should be charged under section 76 of the Serious Crime Act 2015. Its central distinction is between the existence of one statutory offence and the circumstances in which more than one count alleging that offence may properly appear on an indictment.
The Court of Appeal held that the two statutory ways of establishing a “serious effect” on a complainant do not create separate offences. Ordinarily, a single count should encompass the alleged course of controlling or coercive behaviour. Nevertheless, multiple counts are not automatically defective, and a disagreement about the preferable charging structure did not justify staying all the relevant counts in this case.
The prosecution appealed against a Crown Court ruling staying four counts. The respondent maintained that those counts unfairly divided a single course of alleged abuse into multiple offences. The appeal therefore required the court to reconcile a holistic understanding of domestic abuse with permissible prosecutorial charging choices and the proper limits of judicial intervention.
2. Background and Procedural History
The allegations
The complainant and respondent had been in an intimate relationship for several years. The respondent had previously been convicted of offences involving assault and controlling or coercive behaviour against the complainant. Restraining orders had been imposed, and in 2023 he pleaded guilty to breaches of an earlier order.
The present indictment concerned further alleged offending before and after a period of approximately six weeks in custody in 2023. The allegations included physical violence and threats, alongside restrictions on the complainant’s appearance, food, friendships and spending; monitoring and excessive communications; degrading treatment; and sexual humiliation. These remained allegations: the appeal did not determine whether they were proved.
The four-count structure
The indictment contained fourteen counts, four of which alleged controlling or coercive behaviour:
- Counts 1 and 2 concerned the period before the respondent’s remand in custody.
- Counts 7 and 8 concerned the period after his release.
- Within each pair, one count concerned actual or threatened violence, while the other concerned the remaining alleged controlling or coercive conduct.
The prosecution justified this structure on two grounds. First, custody might have interrupted the relevant relationship or course of conduct. Secondly, the two forms of “serious effect” under section 76(4) involved different evidential considerations and different treatment of the statutory defence.
It also argued that separate counts would clarify the case for the respondent, simplify identification of the jury’s findings for sentencing, and avoid potential difficulties over jury agreement.
The Crown Court ruling
The trial judge accepted that dividing the allegations into separate periods was a matter for the prosecution. However, she considered that splitting the alleged conduct within each period exposed the respondent to two convictions for what was a single continuing offence.
She invited the prosecution either to elect between the counts in each pair or to combine each pair into one count. The prosecution instead supplied further particulars while retaining the four-count structure. The judge then stayed all four counts as oppressive.
The prosecution sought permission to appeal under section 58 of the Criminal Justice Act 2003. Compliance with the procedural requirements was agreed, and the Court of Appeal granted leave.
3. Summary of the Judgment
The Court of Appeal allowed the prosecution appeal, reversed the stay and ordered the proceedings on the controlling or coercive behaviour allegations to resume in the Crown Court.
Its principal conclusions were:
- Section 76 creates one offence. Section 76(4) supplies two alternative ways of proving one element of that offence, rather than creating two offences.
- A single count is normally preferable. It enables the jury to assess the alleged pattern of behaviour as a whole.
- Multiple counts can nevertheless be permissible. Separate periods of offending may justify separate counts. In principle, distinct, non-duplicative behaviour within the same period may also support separate counts.
- The counts before the court were not defective. Although the court considered that one count should ordinarily have covered the allegations in this case, that preference did not justify terminating them.
- A stay was the wrong response. Even if the indictment had been defective, the court envisaged amendment rather than the wholesale removal of the allegations from trial.
4. The Statutory Framework: One Offence with Alternative Routes to Serious Effect
Section 76(1) requires the prosecution to establish four essential elements:
- Repeated or continuous behaviour towards another person that is controlling or coercive;
- A personal connection between the parties at the relevant time;
- A serious effect on the other person; and
- Knowledge, actual or attributed by the statutory reasonable-person standard, that the behaviour would have that serious effect.
The dispute centred on the third element. Section 76(4) provides two routes to establishing it:
| Statutory route |
Required effect |
Important qualification |
| Section 76(4)(a) |
Fear, on at least two occasions, that violence will be used against the complainant. |
The best-interests defence is unavailable in relation to behaviour causing fear of violence. |
| Section 76(4)(b) |
Serious alarm or distress having a substantial adverse effect on the complainant’s usual day-to-day activities. |
The statutory defence may arise, subject to its conditions and the exclusion concerning fear of violence. |
The court’s textual conclusion was straightforward: these provisions explain how the required effect may be proved. They do not alter the identity of the offence.
Importantly, the routes are not a rigid division between violent and non-violent conduct. Conduct involving violence or threats may also cause serious alarm or distress affecting daily life. Conversely, the significance of particular behaviour may emerge only when it is considered alongside other evidence. This potential overlap supported the court’s preference for a single count.
5. Precedents Cited and Their Influence
R v Chilvers [2021] EWCA Crim 1311
R v Chilvers was the principal authority on presenting this offence to a jury. As described in the present judgment, it concerned whether a Brown-type direction was required for an allegation under section 76. Such a direction was held unnecessary in that case.
The prosecution argued that this did not resolve every possible case, particularly where a defence was more differentiated than a blanket denial. It also pointed out that R v Chilvers had not expressly decided whether section 76(4) created separate offences.
The Court of Appeal nevertheless regarded the earlier decision as implicitly treating section 76 as creating one offence. More significantly, it endorsed the practical model associated with that decision: a single count, adjusted to the allegations and issues in the particular prosecution.
The court drew three lessons from R v Chilvers:
- A course of controlling or coercive behaviour can ordinarily be presented through one count.
- The complexity of a Brown-type direction will not normally be necessary.
- Exceptional cases may still require more tailored directions, as contemplated at paragraph 63 of that judgment.
The present decision therefore develops, rather than displaces, that authority. It explains that possible difficulties over jury agreement do not generally require a two-count solution, while preserving flexibility where the actual trial issues warrant it.
R v Rasheed [2025] EWCA Crim 89
R v Rasheed arose from a Solicitor General’s reference concerning an unduly lenient sentence. In that context, Bean LJ stated:
“Thus, while section 76(4) defines the term ‘serious effect’, it does not create two separate types of offence”.
The present court relied on that statement as express support for its interpretation of section 76. Although the earlier case arose in a sentencing context, its explanation of the statutory structure directly addressed the interpretative issue.
The decision thus places the single-offence analysis on a particularly clear footing: it follows from the statutory wording, was implicit in R v Chilvers, and was expressly recognised in R v Rasheed.
The reference to a Brown-type direction
The judgment does not provide a separate case title or citation for the underlying Brown authority. Its significance here is the possibility that a jury may need specific guidance about the factual basis on which it must agree before convicting. The court did not treat that possibility as a general obstacle to using one count.
6. Analysis of the Court’s Reasoning
A. The offence addresses a pattern, not merely isolated incidents
The court recognised that section 76 was introduced to address a gap in the criminal law. Domestic abuse encompasses more than conduct causing fear of violence: it also includes controlling or coercive behaviour producing serious alarm or distress and substantially affecting everyday life.
This legislative purpose favours assessment of the alleged pattern as a whole. Dividing allegations too readily may obscure their cumulative significance. Behaviour that appears less substantial in isolation may contribute materially to the seriousness of the overall course of conduct.
The respondent’s counsel also identified a practical risk: compartmentalising the allegations could weaken the prosecution’s ability to demonstrate serious effect by separating evidence that gains force from its context.
B. There is no statutory hierarchy between the two routes
The court rejected the suggestion that the two routes establish a general hierarchy of seriousness. It noted that the Sentencing Council’s offence-specific guideline incorporates both within its culpability and harm categories without such a distinction.
This does not mean that all examples of the offence are equally serious. It means that seriousness is not determined simply by whether the prosecution relies on fear of violence or on serious alarm or distress. Non-violent coercion is not inherently a lesser category of wrongdoing.
C. One offence does not mean that only one count is ever permissible
The court distinguished the statutory offence from individual instances of committing it.
Where a defendant engages in a qualifying course of conduct, stops, and later begins another qualifying course, separate counts may properly reflect those separate periods. The fact that both counts rely on section 76 does not make them duplicates.
The court also accepted a narrower same-period possibility. Distinct repeated behaviour might satisfy section 76 through section 76(4)(a), but not section 76(4)(b), while different repeated behaviour during that period satisfies the latter route but not the former. Separate counts could, in principle, be permissible provided there is no duplication.
That qualification matters. The judgment is not authority for routinely dividing a single abusive course into multiple convictions merely because more than one serious-effect route is available. The court expressly left unresolved potential overlap problems where behaviour is alleged to be “continuous”.
D. The custody period did not require separate counts here
Although separate periods of offending can justify separate counts, the court considered that the allegations in this case should ordinarily have been encompassed within one continuing count, notwithstanding the relatively short period in custody.
This was a case-specific assessment, not a rule that imprisonment can never interrupt a course of conduct. Equally, the judgment provides no basis for treating custody as automatically ending the relevant course or requiring fresh counts after release.
E. The statutory defence does not usually require separate counts
Under section 76(8), the defendant must raise evidence that they believed they were acting in the complainant’s best interests and that the behaviour was reasonable in all the circumstances. Once sufficient evidence raises those matters, section 76(9) requires the prosecution to disprove them beyond reasonable doubt.
The defence is unavailable in relation to behaviour causing fear of violence. The prosecution relied on this difference to support separate counts.
The court accepted that the difference may occasionally affect how the case should be presented. However, even where the defence arises, one count may remain appropriate. Separate counts might sometimes assist the jury, including through an amendment once the issues have crystallised, but the defence does not itself require that structure.
F. Clarity can ordinarily be achieved without multiplying counts
The prosecution’s concerns about notice and sentencing did not persuade the court that multiple counts were normally preferable. A defendant remains entitled to know the nature of the allegations within a single count. Likewise, the sentencing judge can determine the appropriate factual basis for sentence through familiar procedures.
Multiple counts may themselves generate additional difficulties, particularly over cross-admissibility: whether evidence supporting one count may also be used when deciding another. A single count can avoid unnecessary compartmentalisation and associated directions.
G. The stay confused an undesirable structure with a defective indictment
The decisive error was not simply the judge’s preference for fewer counts. The Court of Appeal largely shared that preference. The error was treating the prosecution’s refusal to adopt the preferred structure as sufficient reason to terminate all four allegations.
The court held that the counts were not defective. It also observed that, had there been a defect, amendment could have been considered rather than a stay.
The judgment does not formulate a comprehensive new test for abuse of process or exhaustively define amendment powers. Its narrower message is that an unnecessarily fragmented indictment is not, without more, an oppressive indictment requiring termination.
H. Multiple convictions and the totality principle
The respondent argued that sentencing adjustments could not remove the significance of having multiple convictions. The court nevertheless concluded that, where counts properly concern different behaviour, the principle of autrefois convict does not apply and totality can address unfairness in the overall punishment.
This reasoning must remain tied to the requirement of distinct, non-duplicative allegations. Totality is not a general licence to obtain overlapping convictions for the same offending.
7. Complex Concepts Simplified
- Count
- An individual allegation of an offence within an indictment. The same statutory offence may appear in several counts where different offending is alleged.
- Duplicity
- The inclusion of more than one offence in a single count. The trial judge acknowledged that her concern was actually the reverse: one alleged continuing offence being divided between multiple counts.
- Stay of proceedings
- A judicial order preventing proceedings from continuing. Here, it terminated the prosecution of the four controlling or coercive behaviour counts unless overturned on appeal.
- Brown-type direction
- A tailored instruction identifying the factual basis on which jurors must agree before returning a conviction. It does not mean that jurors must invariably agree about every incident alleged within a course of conduct.
- Cross-admissibility
- The question whether evidence relevant to one count may also be considered when deciding another count.
- Autrefois convict
- A plea based on a previous conviction for the same offence. It was not an appropriate basis for preventing prosecution of distinct alleged behaviour here.
- Totality
- The sentencing principle requiring the overall punishment for multiple offences to be just and proportionate to the offending as a whole.
8. Practical Impact and Limits
For prosecutors
The decision establishes a clear starting point: normally charge the alleged course of controlling or coercive behaviour in one count, with adequate particulars. Both serious-effect routes may be relied upon without creating separate offences.
Any departure should be supported by the actual structure of the alleged offending or identifiable trial needs, rather than an assumption that violence-related and other coercive conduct must be charged separately.
For defendants and trial judges
The judgment preserves challenges based on genuine duplication, inadequate notice or unfairness. However, the mere possibility of expressing the allegations in fewer counts does not establish that the existing counts are defective.
It also encourages proportionate case management: clarify particulars, identify the live defence issues, consider appropriate directions and, where necessary, amendment. A stay should not become a means of enforcing a preferred drafting approach.
For future domestic abuse cases
The decision reinforces the importance of cumulative assessment and the equal legal recognition of violent and non-violent forms of coercion. At the same time, it preserves flexibility for genuinely separate courses of offending and unusual cases requiring differentiated presentation.
Its limits are equally important. The court did not decide the truth of the allegations, determine guilt or impose sentence. Nor did it resolve every question about overlapping continuous conduct. Its operative order restored the proceedings; it did not endorse the four-count structure as the best approach.
9. Conclusion
The governing principle is clear: section 76 creates one offence, ordinarily best charged through one count covering the alleged course of controlling or coercive behaviour. Its two serious-effect routes are alternative means of establishing an element, not separate offences or grades of seriousness.
Nevertheless, one statutory offence can support multiple properly differentiated counts. Because the counts here were not defective, the Crown Court’s stay could not stand. The judgment combines a strong preference for holistic charging with an equally important warning against terminating a prosecution merely because its indictment could have been drafted more appropriately.