Four years on: The postcode lottery of Clare’s Law

Jamie Grace, SIPS Fellow, Senior Lecturer in Law, Sheffield Hallam University

j.grace@shu.ac.uk and @HumanRightsHKC

Introduction
The recently-publicised and awful crimes of both Theodore Johnson (a killer of three women in successive relationships across more than 35 years) and Marvyn Iheanacho (who killed his partner’s 5-year old son having previously attacked a child) have recently led to victims’ advocacy groups calling for the statutory codification of  ‘Clare’s Law’, the Home Office policy that can see offending histories for domestic violence shared with potential victims who are in intimate relationships with offenders. But as Paula Cocozza has noted for The Guardian, the usage of Clare’s Law is limited in its effectiveness by, amongst other things, an approach to this type of criminal records disclosure that ‘varies from force to force’. That is if anything a considerable understatement – recent statistics show that the operation of Clare’s Law by the police in England and Wales is a ‘postcode lottery’.

Clare’s Law – how it works
The Domestic Violence Disclosure Scheme (as Clare’s Law is formally known) has been operational across England and Wales for four years. The DVDS operates on the basis of a ‘Right to Ask’ strand, where members of the public approach the police to enquire about potential domestic violence perpetration in the past of their current or former partner; and the ‘Right to Know’ strand, where the police or another agency will refer a possible need for a disclosure of an offender’s history to their partner to the relevant local police/multi-agency decision-making panel. Disclosures are made on the basis of a ‘pressing need’ – a vague legal test that comes from common law (case law), rather than from statute or another piece of legislation – and this ‘pressing need’ test could be one reason for the postcode lottery highlighted in this post, below.

The Home Office report on the roll-out of the DVDS ‘one year on’ from national implementation in England and Wales in March 2014 suggested a figure at that time of more than 5,000 applications in a first year of operation for the DVDS, since the period ‘between 8 March 2014 and 31 December 2014 [alone saw] a total of 4,724 applications… with 1,938 disclosures made’. However, more recent figures show that in the year ending 30^th June 2016, there were 6,314 applications made under the DVDS in England and Wales (3,236 under the Right to Know, and 3,078 under the Right to Ask). And in the year ending 31^st March 2017, this had increased to 8,490 applications (5,445 Right to Know applications and 3,045 Right to Ask) – resulting in 3,410 disclosures made in that period (2,438 Right to Know and 972 Right to Ask).

The postcode lottery of Clare’s Law
However, while the usage of the DVDS is clearly increasing nationally, the disclosure decision-making process is clearly operating on a very different basis from force to force. Recently released statistics show that there must be a great variation in the application of the ‘pressing need’ test for disclosure. Disclosure rates across forces in England and Wales in the year ending 31^st March 2017, in relation to the Right to Know, varied greatly, ranging from 97.8% in Cumbria, down to 3.2% in Kent. Disclosure rates for Right to Ask applications also varied greatly, ranging from 76% resulting in disclosures in Cumbria, down to 6.7% resulting in disclosures in Northumbria.

A concluding thought
What we don’t yet know, however, is how many homicides or indeed, domestic abuse incidents as a whole that the DVDS could be said to have had a role in directly preventing, something already noted by researchers interested in the DVDS and its national operation to date. If the DVDS ever became a statutory Scheme given the current Home Office consultation on a Domestic Violence and Abuse Bill, then before it is brought into force a longitudinal study of the effects of disclosures under the DVDS is needed. Initial Home Office views on the possible efficacy of the Scheme did not ignore the issue of ‘displacement’ of risk – namely, that as a ‘risky’ relationship comes to an end, the perpetrator that made it risky is free to take their risk – and their violence – elsewhere.