The Domestic Violence Disclosure Scheme has been rolled out on a national basis in March 2014, following a, patchy-at-best, pilot programme across four police force areas in 2012-13: Gwent, Wiltshire, Warwickshire and Greater Manchester.
This pilot project was reviewed in a Home Office report in November 2013, published shortly before the Home Secretary confirmed that the Scheme would become a national feature of the policing landscape. The Scheme features a ‘Right to Ask’ and a ‘Right to Know’. The former gives members of the public the right to request a disclosure of details about an individual’s record in relation to domestic violence or other crimes to be made to them. The latter allows for organisations, such as domestic violence support charities and social work organisations, to refer potential disclosures to the partners of (potential) abusers to the police.
Disclosures are made, in short, in contexts where there is a risk of domestic violence, if there is a ‘pressing need’ for disclosure, and if a disclosure would be ‘proportionate’.
There were 111 disclosures made in the entirety of the pilot project – yet only 4 recipients of information, passed on following a decision to disclose, responded in the affirmative to an enquiry as to whether they would access support services following the disclosure. As such, the pilot Scheme does not provide strong evidence that disclosures of such information will produce positive action by women to seek support for their risk of domestic violence, despite there having had to have been some ‘trigger’ incident or concern that led to the consideration of the ‘pressing need’ to disclose the information in that particular instance.
The Scheme evidently proved difficult to manage in its pilot form. The Home Office report found that police officers felt processes of decision-making were overly bureaucratic, presumably because there are made by panels of individuals removed from the ‘frontline’. Generally, public protection practitioners felt public awareness of the pilot Scheme was low. There was a perception in the pilot force areas that the Domestic Violence Disclosure Scheme overlapped confusingly with other disclosure processes under Multi-Agency Public Protection Arrangements and/or the parallel (statutory) Child Sex Offender Disclosure Scheme. There was perceived to be a lack of consistency in the manner, content and form of information provided in disclosures, and in the type and nature of follow-up support proffered in situations where disclosures were not made following a refusal of an application under the ‘right to ask’ strand of the pilot Scheme. There were also perceived difficulties with logistical support in timing and making proactive disclosures of this kind of public protection ‘risk’ information to individuals under the ‘right to know’ strand of the pilot Scheme, given the enormous emotional pressures this would then potentially place on the individual deemed ‘at risk’ of harm. Perhaps most notable (from a legal risk point of view) identifying a standardised definition of the ‘pressing need’ for disclosure was initially difficult, we are told in the report.
There are also serious doubts in my mind over the overall legality of the Scheme, and whether it could survive a judicial review of its operation. The guidance regulating the operation of the Scheme was revised in early 2013 following a successful challenge to the operation of the parallel Child Sex Offender Disclosure Scheme. The High Court had established in that case that there was not enough emphasis in the operation of this other Scheme on the need for consultation with, or at least notification, of the (alleged) offender. The guidance on the pilot Domestic Violence Disclosure Scheme purportedly took account of this and other directions from the courts when it was revised. However, none of the 111 about whom disclosures were made under the pilot Scheme actually received notification of the decision to disclose information about them, let alone any consultation about a possible decision to disclose, despite this being the expected norm under the (revised) guidance. Ostensibly this is to reduce risk of potential harm from retaliation by furious (mainly male) partners, since the (mainly) women in receipt of the information might decide to keep it to themselves. But this could be said to be blanket, inflexible adoption of a policy (something the courts loathe) on the evidence of the operation of the pilot Scheme, when the guidance merely offers: “Such a decision [to inform A] must be based on an assessment of risk of harm to A, if B were to be informed. Due consideration must be given on whether the disclosure to B would have potential to escalate the risk of harm to A.”
I do not feel this is enough emphasis on the human rights of (alleged) offenders to be consulted as part of a decision making process, or to be notified in the eventuality that consultation or other involvement is not practicable. This twin principle is well-developed in the courts and will, inevitably I feel, form the grounds of a challenge to this (crucially, non-statutory) Scheme. Overall, police officers will need to become more confident and more adept in engaging in dialogue with those previously convicted of (partner) violent offences, or suspected of the same, if the Scheme is to withstand longer-term legal scrutiny. This will be a challenge for the police, on the basis of the (lack of) evidence of offender ‘consultation’ in the evaluation of the pilot Scheme. Worryingly, it does not appear that there is to be publication of any new guidance document to regulate the new, national operation of the Scheme – instead, the Home Office appear to have stuck with the pilot Scheme guidance.
There is also the broader difficulty that the Scheme allows for the disclosure of information including not just convictions but past allegations, arrests, charges and (failed) prosecutions. This difficulty with ‘forgetting’ the past of an individual deemed ‘risky’ by society is something under consideration at the time of writing by the UK Supreme Court, due to a successful appeal case concerning criminal records information from early 2013. Now the Scheme has begun to operate nationally from March 2014 it may need rapid reconsideration of its scope in the sense of which pieces of information become disproportionate to disclose, and when, or in what circumstances. Probation researchers and practitioners are mindful of the difference between ‘healthy ontological anxiety’ and ‘crippling, overwhelming anxiety’ for reducing recidivism (to paraphrase Jane Fenton), and what appropriate information sharing does to pick a good line between the two.
So as the Scheme becomes a national one there is a risk that a lack of offender participation or notification in the disclosure process is not only unlawful but “could result in future victims being created” as offenders come to see possible journeys to rehabilitation as ultimately “futile” as Marian Duggancommented in relation to the Scheme in 2012.
Jamie Grace is a Senior Lecturer in Law at Sheffield Hallam University. Email firstname.lastname@example.org