There is an increasingly urgent need to reform (and thus improve) the approach of the police to the prevention of domestic abuse and the safeguarding of victims. Not least because, of late, there has been a shift in the UK courts’ position on the duties of police forces in this regard. Thanks to case law from the UK Supreme Court in 2018, forces are now placed under stricter duties to uphold the human rights of victims of domestic and sexual violence (Grace, 2018: 2 &4). Now, should they commit ‘egregious’ errors during investigations, which in turn fail the victims of violent and sexual crimes (Flinn, 2018), the police can no longer (as easily) escape liability under the European Convention on Human Rights. As part of efforts to move public policy forwards along these lines, HM Government (2019) published a draft Domestic Abuse Bill and an accompanying series of policy positions. The government’s aim is to partially, yet considerably, reform the landscape of the policing of domestic abuse – embedding work done to change domestic abuse risk assessment processes for example (see HM Government, 2019: 51), but also introducing more structural changes. This short piece offers a few thoughts about some of the more high-profile proposals that would affect policing practices.
The four most prominent proposals are establishing:
- “…a statutory definition of domestic abuse”
- “…the office of Domestic Abuse Commissioner”
- “…a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order” for the UK
- a ministerial duty to “…place the guidance supporting the Domestic Violence Disclosure Scheme [also known as ‘Clare’s Law’] on a statutory footing.”
Other reforms will focus on protecting victims of domestic abuse through special measures in the criminal courts or by protecting them from cross examination in the family courts by their abusers, and so forth (Burrows, 2019). But a lot of the preventive focus of the draft Bill comes from the newly-imagined Domestic Abuse Protection Notices and Orders and possible reforms to the basis of ‘Clare’s Law’. It is those proposals that I shall focus on here.
The new preventive orders would seem to me to be a positive, potential policy step for the prevention of domestic abuse in the UK. They have a greater focus on offender treatment and management than the current Domestic Violence Protection Notices and Orders, which are centred on the idea of a short-term exclusion of an offender or perpetrator from the property where their victim lives, and a prohibition on an offender contacting their victim (HM Government, 2016: 1). The proposed statutory reforms would add some important new dimensions to the range of conditions that are imposed on individuals upon their receipt of a Domestic Abuse Order from the courts, combining rehabilitative and restrictive approaches. Firstly, the new orders could be used to require recipients to attend drug or alcohol treatment, or parenting programmes. Secondly, the newer orders would allow for a condition of electronic monitoring of different types to be placed on offenders (HM Government, 2019a: 30), as well as the imposition of offender notification requirements at police stations, to give regular updates on their address and potentially other details, including details of any new relationships, to allow for more accurate risk assessments (HM Government, 2019a: 28). A criminal offence or contempt of court would be committed if these new orders were to be breached (HM Government, 2019a: 30)..
It seems that reforms to Domestic Abuse Protection Notices and Orders may serve to better control and even help to rehabilitate domestic violence perpetrators – and, as such, would be a boost to the legal framework the UK must maintain in order to fulfil its human rights obligations to victims of violent and sexual crimes – but these mooted changes to policing practice should not, and (it seems) will not, be free from further scrutiny to explore their effectiveness. The Government consultation response notes that these reforms are as yet untested, but that a pilot and an evaluation would take place in due course. In a separate scrutiny process, the Parliamentary Joint Committee on Human Rights is already undertaking a short evidence-gathering inquiry on the fitness for purpose of the draft Bill. One would hope that the forthcoming pilot evaluation by the Home Office, as well as the Inquiry, will explore the extent to which these measures are effective in addressing domestic abuse and take a balanced approach to protecting the human rights of victims and affording an appropriate level of respect toward the due process rights of offenders.
The draft Bill will place a new statutory duty on the police to have regard to Home Office guidance on the operation of information disclosure policies such as ‘Clare’s Law’ – the Domestic Violence Disclosure Scheme (DVDS) in England and Wales. The DVDS operates on the policy premise that well-timed disclosures of past offending histories of violent partners will make potential victims realise that ending a relationship may keep them safer. Police and public protection professionals such as social workers can refer a disclosure application to the police on behalf of a potential victim under the Scheme (in a strand of its operation known as the ‘Right to Know’), and victims and potential victims can apply to the police for a disclosure themselves (the ‘Right to Ask’).
Currently, DVDS guidance is published by the Home Office (2016). A new statutory duty to consult bodies such as the National Police Chiefs’ Council in revising that guidance, HM Government hopes, will lead to a more effective Disclosure Scheme that should include not just reasonable and proportionate disclosures upon which victims can judge risks to themselves, but also more ‘robust risk assessment and safety planning in order to safeguard the individual or individuals potentially at risk of domestic abuse’ (see: HM Government (Explanatory Notes), 2019: 36).
New data from the ONS (2018) shows that the uptake of the DVDS by potential victims and concerned police officers and other public protection professionals has resulted in an increase from 3,410 disclosures in the year to March 2017 to 8,368 in the year to March 2018. There is however a distinct ‘postcode lottery’ in the way the Scheme is operated, for both the ‘Right to Know’ or ‘Right to Ask’ strands, with regard to the rate of disclosures made (Grace, 2018). The rate of disclosures as a proportion of Right to Know applications, in the year ending March 2017, varied from 97.8% in Cumbria down to 3.2% in Kent (Grace, 2018). The variety in the manner in which individual forces operate the DVDS has been acknowledged and criticised by HMICFRS (2017: 8) in the recent past, yet the ‘postcode lottery’ continues. The rate of disclosures as a proportion of Right to Know applications, in the year ending March 2018, varied between 100% in Wiltshire down to 9.6% for Thames Valley Police (ONS, 2018). An increase in regulation of the use of Clare’s Law is to be welcomed. However, there will still exist concerns about ‘victim responsibilisation’ through the Scheme (Duggan and Grace, 2018; Duggan, 2018), issues of procedural fairness for offenders (Grace, 2015), and, potentially, a continuing lack of a proper review of its effectiveness (FitzGibbon and Walklate, 2016).
There is an issue of costs intensification, incurred through some of these proposals, on over-stretched criminal justice budgets – not least those of the police service, hammered by austerity as they are (Home Affairs Select Committee, 2018). I would concur with Marian Duggan (2019), who has already noted of the draft Bill that:
“The changes outlined…indicate that the government is listening to domestic abuse victims, advocates and experts. The key will be whether or not these proposals can be sufficiently implemented, as they require a significant amount of ongoing funding and investment across public services and the voluntary sector.”
Yet these mooted reforms in the draft Bill, it can be hoped, would be of benefit to protecting the rights and safety of victims of domestic abuse under this government, or a future government committed to increasing levels of policing funding.
Jamie Grace is a Senior Lecturer in Law at Sheffield Hallam University and PhD candidate in the School of Law at the University of Sheffield. Email: firstname.lastname@example.org