Inviting the police to vet our partners

Last week, four police forces in England concluded a pilot scheme known as the Home Office domestic violence disclosure scheme. The scheme allowed those concerned about the risk of domestic violence to ask the police to check whether an individual had been convicted of domestic offences in the past. The scheme has become known as ‘Clare’s Law’ after Clare Wood, who was strangled and set on fire by her boyfriend George Appleton in 2009.

The consultation paper on the pilot scheme singled out ‘ending domestic violence’ as ‘one of the most important tasks’ the government faced. The pilot forms part of the government’s strategy, launched in March 2011, for ‘ending violence against women and girls’. It is a strategy which prioritises early professional intervention in abusive relationships, pointing to the fact that women who are the victims of domestic violence are ‘likely to come into contact with a wide range of professionals’ who should know and understand the early signs of violence in order to facilitate early intervention.

What is remarkable is that there has been almost no complaint about Clare’s Law from those campaigners usually concerned about privacy and civil liberties. After all, this scheme propagates the idea that those convicted of certain offences are simply beyond redemption. It assumes that once a person has been convicted of a given offence, they remain a risk for anyone and everyone they come into contact with in the future. The offences to be disclosed under the scheme include everything from serial, serious violence to single offences of harassment, which can be committed merely by causing a complainant ‘harassment, alarm or distress’. Should someone who has been convicted of harassment be treated as a risk comparable to someone with a propensity for serious violence? And should anyone and everyone convicted of a crime involving past partners be forever subject to the possibility that this past will be dragged up by the police to their current partners? It seems that for most of today’s privacy campaigners, some people’s privacy is worth more than others.

But Clare’s Law is just one of the new powers afforded to the police to deal with domestic violence. The Crime and Security Act of 2010 introduced ‘domestic violence prevention orders’, which are granted by magistrates against those suspected of being violent towards their partner. Anyone subject to an order, which can be granted without anyone being formally tried, can be forced to leave their home and not to make contact with their alleged victim. The police can apply for such orders completely of their own volition and without the permission of those they suspect of being abused.

So what makes tackling domestic violence the government’s ‘most important task’? So important that they feel justified in introducing far-reaching and draconian new police powers? The government’s strategy is propelled by a commonly held belief among the media and political class: that the police are not doing enough to prevent domestic offending.

Of course, ‘preventing crime’ is not really the role of the police, outside of science-fiction films. Their job is to investigate objectively an offence once it has been committed in order to punish the right people. But the police today are far more sensitive about the perceived public perception of their work, and especially how their work is received by the media. This is especially true of those categories of offence that they have been accused of ignoring in the past, such as those involving sexual offences and women. This need to appear to be ‘doing something’ about offences that they did little about in the past has also led to the hyperactivity of Operation Yewtree, which is serving as the police’s own public self-flagellation for their previous failings.

It was similar high-profile failings that propelled Clare’s Law and associated reforms. Much of the reporting of Clare Wood’s case had focused on the police’s failure to investigate Appleton’s violence when he had allegedly spent three hours beating on her door and threatening to kill her. The investigation into the murder of Casey Brittle in 2011 at the hands of her boyfriend led to a scathing and much-reported IPCC investigation which heavily criticised Nottinghamshire police’s handling of the case. Domestic abuse charities like Refuge routinely call the police’s approach to these offences ‘lamentable’. It is the stench of police failure that has led to the belief among the makers and enforcers of the law that the police’s role should be more preventative than investigative when dealing with domestic-violence cases.

In order to mitigate potential impact of the Clare’s Law, proponents say that information will be closely guarded and will only be disclosed if a risk of ‘imminent’ abuse is identified. But this highlights another weakness of the scheme: in how many cases will it be possible to say that such abuse is ‘imminent’? If someone is genuinely convinced that their partner is going to be ‘imminently’ violent towards them, surely it is a matter of common sense that they believe their partner to be capable of physical violence? In that case, what can a record of convictions tell you about a person that your lived experience of them cannot? The facts of these cases are so varied, the perpetrators so unpredictable, that attempting to build ‘safeguards’ into the scheme only works to further highlight its failure to engage with the reality of domestic abuse. If only preventing these attacks was as easy as saying, ‘he has done it before, he will probably do it again’. The reality is far more complex.

We would all love to wave a legal magic wand to prevent people being violent to their partners. But these reforms are not a magical solution. Clare’s Law is a rushed response designed to bolster public faith in the police’s ability to do their job. It is an egregious intrusion into an individual’s private life, which brands certain offenders with a Mark of Cain, telling the world they are an incurable threat to those with whom they become intimate. It also fails to do anything to help those involved in violent relationships who, in the words of Refuge, will gain ‘nothing’ from these reforms. Domestic violence cannot be legislated or strategised into oblivion. The police must, of course, intervene when a relationship turns violent. But they should have no power whatsoever to intervene in mere anticipation of it turning violent.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.