Guidance about the disclosure of information by police forces

Domestic Abuse Bill – in a Public Bill Committee at 3:30 pm on 11th June 2020.

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Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office) 3:30 pm, 11th June 2020

I beg to move amendment 52, in clause 64, page 47, line 15, at end insert—

“(1A) Before issuing guidance under this section, the Secretary of State must undertake a comprehensive assessment of the contribution of the disclosure of police information to the prevention of domestic abuse, drawing on disclosures made by chief officers of police prior to this section coming into force.

(1B) Disclosures of police information for the purposes of the prevention of domestic abuse may only be made—

(a) where reasonable, necessary, and proportionate,

(b) with regard to the best interests of children likely to be affected by the disclosure, and

(c) after ensuring there is an operational plan to support the recipients of such disclosures.”

Photo of Karen Buck Karen Buck Labour, Westminster North

With this it will be convenient to discuss amendment 53, in clause 64, page 47, line 17, at end insert—

“(2B) Each chief officer of police of a police force must annually review—

(a) the compliance of their own force with any guidance issued under this section, and

(b) the overall contribution of the disclosures under that guidance to the prevention of domestic abuse in their force area.”

An amendment to demand review from police of how the Domestic Violence Disclosure Scheme policy is working, and to clarify the ‘pressing need’ test.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

The domestic violence disclosure scheme, which I will refer to from this moment forward as Clare’s law, was introduced in 2014 after Clare Wood was murdered by her ex-boyfriend, George Appleton. For those who are unfamiliar with the case, Clare Wood had made several complaints to the police about George Appleton before her death. Those complaints included criminal damage, harassment, threats to kill and sexual assault. A panic room had been installed in her house following an attempted rape.

Clare was unaware that George Appleton had a history of violence against women and had been jailed for three years in 2002 for harassing another woman, and for six months a year earlier after breaching a restraining order. However, he was still able to enter Clare’s home, strangle her and set her on fire. The Independent Police Complaints Commission concluded that Clare had been let down by individual and systematic failures by Greater Manchester police.

Clare’s law was designed to set out procedures that could be used by the police in relation to disclosure of information about previous violent, abusive and offending behaviour by a potentially violent individual towards their partner where that might help to protect that partner from further violent and abusive offending. There are two procedures for disclosing information: the right to ask, which is triggered by a member of the public applying to the police for a disclosure, and the right to know, which is triggered by the police making a proactive decision to disclose information to protect a potential victim. Disclosures are made when it is deemed that there is a pressing need for the disclosure of the information to prevent further crime.

While there is no doubt that Clare’s law was introduced with entirely good intentions—I am not here to challenge that at all—there is some concern that this well-intentioned piece of legislation is currently not operating as it should be, and concern about some alarming instances where, as it operates currently, it could be causing more harm.

First, Clare’s law has had limited use since its creation in 2014. According to data from March 2018, there were 4,655 right to ask applications, resulting in 2,055 disclosures, and 6,313 right to know applications, resulting in 3,594 disclosures, so it can be seen clearly that disclosures are not made in every case. In comparison, in the same time period there were just shy of 1.2 million recorded domestic abuse cases in England and Wales, so we are talking about a very small number of cases that seem to be using the scheme. That in itself is not necessarily evidence that it is not working, but I think it is descriptive of where it may work in some places and not others.

In addition, there appears to be a postcode lottery regarding disclosures. It is assumed that that variation is due to the vague nature of the pressing need test that currently exists in the law. For example, in 2019 Kent had an 8.5% disclosure rate for right to ask disclosures, while Hampshire had a 99.5% rate. That is worrisome, but what is of even greater concern is that the average time taken for each disclosure is 39 days. I imagine all will agree that in cases of domestic abuse, that mitigates quite a lot of the potential prevention and could potentially heighten a victim’s risk.

In addition, while there was a review of the initial pilot phase of Clare’s law and a review one year on, those reviews were procedural and did not consider the impact of the scheme on domestic abuse or analyse the scheme’s value for money. There is therefore no evaluation of whether the disclosures made have any benefit to the person they are made to. In fact, one survey indicated that 45% of early-wave recipients of information went on to be victimised by the partner they warned about. In normal language, that means that 45% of the people who have been given the information following one of the variety of requests under this law went on to be victimised and abused by that person.

One such example is Rosie Darbyshire, who was murdered with a crowbar by her partner Ben Topping. Having made an application for information under Clare’s law on 28 January, she was killed just over a week later on 7 February. She was left unrecognisable after sustaining more than 50 injuries.

Other concerns include the impact of coercive and controlling behaviour where women are unable to contact the police or where contact from the police would only serve to make matters worse. At the beginning of a relationship—I think we can all understand this, and it applies not just to women but anyone—women are often not alive to the risk of domestic abuse. Only when it is too late are they advised of their partner’s past.

Gemma Willis from Teesside, reporting to the BBC, was only advised of Clare’s law after her partner was arrested following smashing her head into a window, slashing her neck with a trowel, hitting her with hammers and threatening to kill her family. Also reporting to the BBC, Dr Sandra Walklate from the University of Liverpool said of the scheme:

“We have no real way of knowing whether it’s working or not”.

While clause 64 operates to place Clare’s law on a statutory footing, the proposed amendments are designed to safeguard against circumstances and the case studies outlined above. The amendments would mean that police should evaluate whether disclosures made under Clare’s law are having a positive impact on the safety and empowerment of victims. I am not seeking for police forces just to do a paper-shuffling exercise: “A request has come in. What will we do with this request? Does it meet the tests as set out in the law?” I am rather seeking for police forces to run some manner of risk assessment on the impact of this disclosure being made, not on the perpetrator but on the victim.

The amendments would also require police to undertake an exercise to establish the efficacy of the disclosures that have been made in the past few years, to simply have a look over how well it is working. The pressing need test, which I have already referred to, would be refined and clarified to create uniformity with future disclosures. Based on information set out, it cannot be argued that my amendments are anything less than essential for the Government, if they want to ensure that Clare’s law is as good as it could be and that the protective effect it was intended to have does not, in some cases, cause harm.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I would like to take a moment to reflect on the extraordinary campaigns, charities and local efforts, through which families, such as the Wood family, often find the strength and resilience somehow to campaign and carry on when they have suffered a devastating loss in their family. We have heard why Clare’s law is called Clare’s law: her family felt that had she been aware of her murderer’s background, she would have been able to stop the relationship earlier.

There are so many efforts in the world of looking after and helping victims of domestic abuse, both at the national and local level, where people have done the most extraordinary things. I want to put that on record, because I am very conscious of it as we work through the Bill and our non-legislative work.

We absolutely acknowledge that there is much more to be done to raise awareness of the scheme, primarily with the public, but also with the police. We want to increase the number of disclosures and ensure that the scheme is operated consistently across all police forces.

It is always difficult to raise awareness of the “right to ask” part of the scheme, because in the first flushes of romance and love, unless someone has already experienced domestic abuse themselves or seen it happen to others, they are probably not thinking, “I ought to contact the police to check whether he is okay.” I remind colleagues of the very powerful speech given by Rosie Duffield at Second Reading of the second iteration of the Bill, when, in explaining that journey very cleverly and clearly, she said that it was all to do with flowers and loveliness at the start, before the gradual chipping away began a little further on in the relationship.

We acknowledge that the scheme operates in a really difficult area and that it is very difficult for police forces to keep track of other people’s relationships. There is of course a certain sensitivity there—we do not live in a police state—so we have to go down that path carefully, ensuring that we balance rights as we need to. With this clause, the right of someone to know that they have begun a relationship with someone who has a background of abuse will be in statute—that is the aim of putting that guidance in the Bill. In including guidance, we want to ensure that it underpins the scheme on a statutory footing, which will give it greater visibility and standing. By requiring police forces to have regard to the guidance, the Bill will help to bring the performance of all forces in applying the scheme up to the best standard.

I am pleased to say that the Government’s proposal to place Clare’s law in statute was fully endorsed by the Joint Committee, which recognised that the measure will raise awareness of the scheme among those who might benefit most from it. Although I listened carefully to the hon. Member for Birmingham, Yardley as she spoke to her amendments, I reassure the Committee that we know that the guidance has been in place since 2014—an awful lot has happened in the six years since in all sorts of respects—and that is why we are comprehensively reviewing the guidance in anticipation of it being placed on a statutory footing by the Bill. It will be informed by the experiences of the police and, importantly, of many others, over the last six years.

We know, for example, of the incredibly sad case of Rosie Darbyshire in 2019, about which the hon. Lady spoke. The scheme did not meet the timeliness that we all hope for and would expect, and timeliness is a factor in our review. By way of explanation, initial checks are supposed to be carried out within 24 hours, which is of no reassurance at all to the Darbyshire family. We need to understand why that appears not to have happened on that occasion.

Alongside our review, police forces are—in fairness—looking to improve their handling of the scheme. For example, last October the Metropolitan police launched a facility to make online applications. Previously, a person had to visit a police station and fill out a paper form, but the Metropolitan police has moved on to online forms, which we hope will make the process quicker and easier for users. That portal is beginning to be rolled out in other forces in England and Wales.

We understand the need to review and are reviewing the guidance. I welcome the thoughtful idea of looking at the pressing need test, which is set out in the explanatory notes accompanying the amendments. We have not had that suggestion made to us by the police as part of our work to review it. We can see that there may be complications in terms of the importance of risk assessment and so on, but we undertake to explore that point with the police.

We will also of course share the new guidance fully with sector partners and the domestic abuse commissioner, among others, before it is published. It is anticipated that Clare’s law guidance arising out of clause 64 will be published after Royal Assent next year.

Even if we were to identify changes to the pressing need test—at this stage, we are very much still pondering that—we have to be alert to whether it is appropriate to place the test in legislation. Doing so may have unintended legal consequences for the well-established legal obligations on police considering making a disclosure. Statutory guidance has the advantage of flexibility and is more readily updated to reflect developing good practice. The police will be required to have regard to the statutory guidance and may face challenge in the courts if they fail to comply with the guidance without good reason.

I absolutely agree wholeheartedly with the principles that the hon. Lady has raised—namely, that we want to bolster the scheme and make sure that more people are aware of it and that we have consistency of application across forces. We very much intend to achieve that through the guidance set out.

Members have been very concerned about how we are looking after children throughout our discussions on the Bill. I very much welcome the suggestion of a specific focus on ensuring that the best interests of any children are taken into account. I agree that that is crucial to the safe operation of the scheme. We will look at how that principle can be included in the statutory guidance.

On amendment 53, we share the ambition that local forces should be aware of how they are operating Clare’s law, including whether that is in accordance with the published statutory guidance and with a full understanding of the impact and outcomes of the scheme on victims. Again, I maintain that that is a matter for the new statutory guidance, but our discussions on that will be taken forward as part of our review. I hope the hon. Lady will be content with those representations.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office) 3:45 pm, 11th June 2020

I am indeed content. I look forward to working with the Minister to ensure that the law—it bears somebody’s name and is their legacy—truly does what Clare’s family wish it to do. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 ordered to stand part of the Bill.