When it comes to domestic violence, Peter Marshall asks whether you should have the right to know your partner’s past…
This summer a trial will start in some parts of the country where people will be allowed to ask the police if their partner has a history of domestic violence. More commonly known as ‘Clare’s Law’, the home secretary announced the year-long pilot disclosure scheme was designed to “prevent tragic incidents”, such as the death of Clare Wood, murdered in 2009 by a former boyfriend with a violent background.
One in four women and one in six men will fall victim to domestic violence during their lifetime and I think, in principle, any practical and legally-approved protective measure to reduce these astoundingly sad figures must be welcomed. Introduced in the right way, ‘Clare’s Law’ is a good idea; however, I still have reservations about whether it will work in practice.
In my experience, domestic violence rarely happens immediately or in isolation – it’s usually a pattern of behaviour that builds over a period of time. It’s unusual to find a perpetrator who’s never offended before or who offends in one relationship.
Domestic abuse is about control which often extends into areas of everyday life – for example, controlling the partner’s access to family and friends or taking control of their finances and the use of violence helps to exert that control. Domestic violence tends to build gradually and I wonder how realistic it would be for someone in the first throes of a relationship or who’s thinking about a having a relationship to ask the police to disclose their prospective partner’s history.
Domestic violence itself is not a criminal offence – most people are prosecuted for a specific crime, for example, assault or grievous bodily harm. So when making a request for information from the police, how will they determine what’s released. The person may have a record for assault, but that assault may, in no way, be linked to domestic violence. You cannot protect against someone who’s never had a record for domestic violence – no such register of ‘potential perpetrators’ exists.
The police have lots of information on record – calls for assistance or attendance at an incident which has not led to a prosecution, either because the Crown Prosecution Service felt there was insufficient evidence or the victim didn’t feel able to pursue the case. A person may also make an allegation of domestic violence that’s simply untrue.
I’m also afraid there’s the potential for information falling into the wrong hands or being used inappropriately. Information based on unqualified allegations could be released and used in a witch-hunt or vigilante action being taken against an innocent person.
Where do you draw the line on who can apply, what should be disclosed and to whom? At what point in a relationship should the information be disclosed? And what evidence should the person making the request have to produce to be allowed access? Some argue the release of this information would be an infringement of civil liberties and I’m afraid it could be a potentially huge grey area.
‘Clare’s Law’ is meant to be a preventative measure, but people who commit domestic violence don’t often do so immediately, it gradually arising during the course of a relationship. As she’d made several complaints to the police about George Appleton, whom she met on the internet before he killed her, it’s not clear whether and at what point Claire would have sought this information. So you have to ask whether it would have made a difference.
In my view, there’s potentially a conflict between disclosing information too early and it coming too late, when the person might already be heavily involved in the relationship or living together.
Legislation to protect victims of domestic violence comes from the Protection from Harassment Act 1997 which is designed to do two things. The criminal section allows the police and CPS to prosecute for harassment and the civil part allows an individual to take out an injunction against the aggressor. Victims can also apply for a non-molestation order under the Domestic Violence, Crime and Victims Act 2004 – another civil order. Breach of this is now a criminal offence.
This recent criminalisation for breaking an injunction can ironically make it much harder for someone to be prosecuted. The civil process was and is more straightforward – it puts the power to prosecute or not in the hands of the victim.
However, an injunction is simply a piece of paper – if a perpetrator is determined to breach it, there’s little that can be done to stop it. As with the protection of the criminal law, what it does is retrospectively punish a person for breaking it.
The roll-out of ‘Clare’s Law’ across the country depends on the success of this pilot scheme and although it’s extremely complex, we’re starting to see significant shift in attitudes when it comes to domestic violence. The Government has signalled it’s taking a tougher stance, which can only be a good thing for victims suffering at the hands of their aggressors.
Peter Marshall is a Resolution-accredited lawyer at Stephens Scown LLP, with specialist expertise in domestic violence and sits on the national domestic violence committee.
