The legacy of Clare’s law: ten years on
Introduction
The past decade has seen revolutionary change regarding how domestic violence is conceptualised within law and subsequent UK legislative frameworks. There has arguably been a shift regarding our understanding of the law in this sphere, and the responsibilities it should offer to those who have previously been hidden from their right to life and safety within the criminal justice system. One such victim, whose tragic fate emphasised the lack of care and attention public bodies-like the police-afford to victims of domestic violence was Clare Wood. Wood was murdered by her ex-partner, who was known to Greater Manchester Police as a potential threat, due to his previous history of violence. It was identified in the IPCC report, that she had been in contact with police regarding her ex-partner’s violent tendencies,, but police seemingly refused to adequately act on this basis.
Her story has arguably changed the conversational discourse regarding how to adequately protect individuals in their domestic, personal lives from abuse, by emphasising the need for more provisions which encourage access to freedom of information, and informed decision-making. After lobbying for years after her death, in 2014, a pilot scheme was introduced to attempt to achieve just that: introducing Clare’s law.
Clare’s law, also known as the Domestic Violence Disclosure Scheme, was a pivotal initiative in addressing the complex socio-political culture surrounding domestic violence, which directly contributed to Clare’s death, and has since provided the basis for the recent domestic violence legislation, the Domestic Abuse Act 2021. It advises the police on how to share information about an individual’s previous violent behaviour, as a tool designed to remove the risk of abuse towards new partners. The main elements of Clare’s law, known as the ‘right to ask’ (asking the police for information on another person) and the ‘right to know’(the police checking if the person queried about has a criminal record and making that information known),, have arguably raised important discourse, for discussing the extent to which such freedom of information, can be balanced in accordance with data protection, and the right to privacy under the Human Rights Act,, under the guise of achieving a victim-centred approach to addressing domestic abuse crime. This article therefore addresses this, through considering the shifting UK culture over the past decade since the scheme’s initial implementation, its success in reaching this desired victim-centred approach, and the significance of balancing the human rights protection of all involved.
The cultural context of domestic violence in the UK
When assessing the success of Clare’s law particularly in the last decade, considering the ‘hidden nature of domestic violence’ is arguably central. Historically, the law’s response to domestic violence has not been favourable; the law essentially accepted male abuse of women, and thus emphasised the deep-rooted, patriarchal nature of domestic violence, which allowed ‘men to dominate the legal system.’ Thankfully, the law has seen a progressive transformation regarding this matter. The most notable example of this shift is arguably the criminalisation of martial rape, which only became legally recognised three decades ago in the case of ‘R v R.’ Arguably, this emphasises the fact that the law has always identified a distinction between concerns of public interest, and thus, negates the significance of such crimes committed in private-like most instances of domestic violence. Whilst the case of ‘R v R' emphasises change in a singular aspect of domestic abuse on a statutory basis, Clare’s law takes a different approach. Some may argue that this pilot scheme was a novice attempt to reposition the direction of domestic abuse protection, away from the legislative, towards a ‘multi-layered individualised approach to crime control.’ That is, empowering individuals with the right to acquire knowledge and make informed decisions regarding their domestic life. The ability to make such informed choices has successfully been balanced to conform to the criteria required, that is the nature of a request under the Domestic Violence Disclosure scheme: its relevance, necessity, and proportionality. This therefore bridges the gap between the public and private sphere; echoed by the ‘increasing criminalisation of domestic violence,’ and expectations on police to automatically act. However, one branch of societal context which is arguably undermined by Clare’s law, is the assumption of responsibility.
Internalised beliefs-stemming from physical and emotional maltreatment- is arguably central to understanding how domestic abuse occurs in the first place. As a result, one may not recognise the signs which constitute harmful behaviour. What can, on the one hand, be read as an additional tool to empower vulnerable people to enhance their own protection when it comes to domestic abuse, it simultaneously introduced a dichotomy of individual responsibility, and its subsequent displacement. In the past decade since its introduction into UK government regulations, the duty to protect places actional responsibility ‘directly with the applicant’ which implies a sensitive nature, particularly if the applicant had suspicion of abuse already taking place. This has been identified as the ‘responsibilisation’ strategy.
Responsibilisation of the victim-a consequence
As a result of societal attitudes, which favour placing blame on the victim over the perpetrator. It could be argued that Clare’s law has shifted the responsibility away from public bodies, like the police’s role to adequately inform and protect, towards that of a private citizen duty, which is only achievable when the curious party decides to seek out the information themselves. This is arguably the opposite impact of Clare’s law’s intended implication on victims. In instances where victims have been subjected to abuse, their self-efficiency in ensuring their own safety may be questioned, thus negating the whole ethos of adopting a victim-centred approach to domestic abuse crimes. It is simultaneously reliant on the fact that people have the freedom and knowledge to learn about such scheme, and furthermore, the culture of blame casts a shadow of guilt over seeking help, as police are a demographic that victims have ‘traditionally been hesitant to communicate with.’ Whilst this may indicate that in the the last decade Clare’s law has been rather slow in shifting the cultural paradigm away from individual responsibility, it could alternatively be suggested that, on a wider scale, further change in attitudes towards victims of domestic abuse is required, in order to fully take advantage of the availability of these Domestic Violence Disclosure schemes. This, however, is a longer-term goal, which cannot be achieved purely through Clare’s law; but signs of change are emerging.
The introduction of the Domestic Abuse Act 2021 is the most evident in supporting this, as it provides a statutory basis for Clare’s law, alongside providing a wider, more expansive definition of what constitutes domestic abuse. It simultaneously makes clear the duties and responsibilities of the police when it comes to protecting individuals, through providing a clearer understanding on the risk that victims undertake when choosing to opt for a disclosure. However, having only recently obtained royal assent, it is arguably too early to assess how effective this legislation will be regarding further victim protection within law.
Other human rights provisions-what about the right to privacy?
The ‘careful balancing’ act of the scheme’s ‘right to ask,’ and judicial responsibilities to afford adequate protection to privacy rights (as found under article 8 of the Human Rights Act 1998 and Data Protection Act 2018)) are established as relative in nature, opposed to absolute, when considering an application under Clare’s law. The guidance offered by the government on making an application under Clare’s law emphasises the importance of proportionality. The enforcement of Clare’s law, when balancing such privacy rights, is arguably less straightforward than initially proposed, particularly as it pertains to situations of allegation, or prosecution with unsuccessful conviction. It is ultimately up to the police’s discretion to assess the ramifications of granting a successful application under the ‘right to know’.’ In the recent decade, there has been a massive shift regarding attitudes towards confidentiality, as we have arguably entered a social media culture of name and shame, particularly of those of high-profiling or influence. This arguably makes the protection of privacy, when assessing a ‘right to know’ application, far more significant than when Clare’s law first came into effect. This shift arguably reflects a ‘motif of the politics of public protection,’ which represents a potential ‘snowball’ effect on the human rights impacted during the balancing act. In this case, there is the further potential of article 6 violations to a fair trial, stemming from the shifting attitudes towards confidentiality. Instead, there is the additional consequence of trial by public opinion, through the ease at which such information can be spread amongst individuals, which has been seen to be difficult to balance in cases where things aren’t straightforward; most notably, in cases where allegations of abuse were deemed insufficient evidence for successful prosecution.
Conclusion
Ultimately, it can be established that over the past decade, Clare’s law has been successful in shifting the cultural perspective of domestic violence, away from a shameful, private affair, to one which can be considered as a matter of public concern. Its attempt to simultaneously recentre the conversation of domestic violence to one of victim empowerment, has arguably made important strides in developing our understanding of the power that individuals should have, to make informed decisions regarding their personal life. However, Clare’s law can only be taken so far; whilst providing a good basis for freedom of information when making an informed choice, it has done little to address the underlying causes of domestic violence and offers little in way of educating individuals on the potential signs of abuse within domestic partners. Instead, Clare’s law can be seen as a singular tool, which helped to bring domestic abuse to the forefront of debate, but what is arguably more paramount in achieving greater domestic violence protection, is the funding of education and resources to prevent people from committing acts of domestic violence in the first place. It will therefore be interesting to assess over the next decade, whether the granting of Clare’s law to a statutory level, through the Domestic Abuse Act 2021 will help fix the potholes which have existed over the past decade.
Bibilography
Primary cases:
R v R [1991] 4 All ER 481
Primary legislation:
Article 6 Human Rights Act 1998
Article 8 Human Rights Act 1998
Data Protection Act 2018
Domestic Abuse Act 2021
Primary sources: (government publications)
Home Office (Westminster) (2023), Domestic Violence Disclosure Scheme (DVDS) Statutory Guidance, 5. Available at https://assets.publishing.service.gov.uk/media/6489ab97103ca6000c039ea0/Domestic_Violence_Disclosure_Scheme.pdf (Accessed 15th March 2024)
Strickland P, ‘’Clare’s law’: the Domestic Violence Disclosure Scheme’ HA 6250 (Home Affairs section 2013)
Secondary sources:
Bates L, Hester M, ‘No longer a civil matter? The design and use of protection orders for domestic violence in England and Wales’ (2020) 42(2), The Journal of social welfare and family law
Barlow C, Renehan N, Walklate S, ‘Rendering them responsible: victim-survivors experiences of Clare’s law and domestic violence disclosure schemes’, (2024) 8(1), Journal of gender-based violence
Gibbon-Fitz K, Walklate S, ‘The efficacy of Clare’s law in domestic violence law reform in England and Wales’, (2017) 17(3), Criminology and Criminal Justice
Jamie G, ‘Clare’s law, or the national Domestic Violence Disclosure Scheme: the contested legalities of criminality information sharing’ (2015) 79(1), Journal of criminal law
Lamont R, ‘Family Law’ (2nd edn, Oxford University Press)