[MAC0002]

Further written evidence submitted by Jamie Grace, Sheffield Hallam University

 

The Macpherson Report: Twenty-one years on

 

 

Summary - The need to reform public policy on Clare's Law to highlight BAME victims

1. 'Clare's Law' has been national Home Office policy for England and Wales since March 2014. However, Domestic Violence Disclosure Scheme (DVDS) guidance for 'Clare's Law' in England and Wales, last revised in 2016, is silent with regard to how different ethnic groups or communities might face different issues affecting the request, the receipt or the efficacy of disclosures. The only Home Office-led review of the national Scheme in England and Wales to date, a 'one year on' report published in 2016, also does not mention any analysis of the operation of the Scheme in terms of race or ethnicity. Given the silence of the current DVDS guidance on this issue, there is a considerable need to revise this guidance underpinning the DVDS, as the most prevalent of the three UK Domestic Abuse Disclosure Schemes, and in doing so there is a real opportunity to avoid inadvertent or institutional racial discrimination in this developing feature of British policing. One chief aim of this revision of DVDS guidance would be to highlight known difficulties and risk factors in policing domestic abuse in some minority communities in the UK, to avoid pitfalls around obtaining or making disclosures to people at risk.

 

Details

2. As a Committee, you have called for evidence on the impact on different communities in the UK, through the unequal treatment of people in terms of their race or ethnicity in the use of police powers and in police investigations of crime. I am a human rights academic based at Sheffield Hallam University, and while I have previously contributed written evidence on issues of race or ethnicity in the context of the police use of data-driven technologies, I have recently completed a short policy analysis from a race equality perspective, in relation my other main area of research interest - namely Domestic Abuse Disclosure Schemes.

 

3. Across the United Kingdom, three different Domestic Abuse Disclosure Schemes (DADS) are operated. These are the original 'Clare's Law', operated in all police forces in England and Wales since 2014 (and formally known as the Domestic Violence Disclosure Scheme, or 'DVDS'), the Disclosure Scheme for Domestic Abuse (Scotland) (DSDAS) since 2015, and the Domestic Violence and Abuse Disclosure Scheme (DVADS) in Northern Ireland since 2016. The policy aim of these Schemes is archetypically to allow potential victims of domestic violence to make an 'informed choice'[1] as to whether to carry on a relationship with new partner when the police inform them that this new partner has a history of perpetrating domestic abuse.

 

4. Potential victims can contact police organisations (i.e. regional police forces in England & Wales, or Police Scotland or the Police Service of Northern Ireland respectively) using some form of what is often termed their 'Right to Ask'; and relatives of police partner agencies such as social work bodies can request the police consider making a disclosure to a victim at risk under the 'Right to Know' strand of each of the three UK DADS. The legal basis of the Schemes in Scotland and Northern Ireland is stated in the relevant force guidance for each as existing statute concerning police duties to protect the public; while, at the time of writing in June 2020, the DVDS in England and Wales is to be placed on a statutory footing for the first time in (most likely) 2021, when provisions in the Domestic Violence Bill currently before Parliament have been enacted and brought into force.

 

5. There are considerable problems with the operation of the three UK DADS[2]:

 

6. The Crown Prosecution Service have highlighted an overall informational flaw when it comes to the issue of recording the ethnicity of victims of violence, noting that while in 2018-19, the ethnicity of just 65.1% of domestic abuse complainants was recorded, while in previous years this had been even lower, including just 52.9% in 2017-18[4]. This is a strong example of the problem, that the criminal justice system does not know enough about the perpetration of domestic violence from one particular racial and/or cultural community or context to another. In relation to the specific context of this written evidence submission, it should be noted that the current Scheme guidance for the DVDS in England and Wales, last revised in 2016, is silent upon considerations of how issues in one ethnic group or community might affect the request, receipt or efficacy of disclosures[5]. There has been criticism that the Scheme is not a policing safeguard which some women, particularly, from certain BME and/or immigrant communities would find culturally easy to engage with[6]. The only Home Office-led review of the national Scheme in England and Wales, a 'one year on' report published in 2016[7], also does not mention any analysis of the operation of the Scheme in terms of race or ethnicity - despite the fact that non-white individuals at risk can be identified as under-represented in the piloting of the Scheme (forming 5% of the cohort studied in the pilot, with an additional 12% of all of those at risk with an un-recorded ethnicity)[8].

 

7. Women from migrant and/or BME communities face intersectional, aggravating risk factors in terms of their vulnerability to domestic violence, and there are systemic problems that arise for police officers in working with women in those communities. These have been argued and evidenced to include the risks of inadequate interpreting facilities, a relative lack of ethnic minority female officers, the psychology and legality of fragile immigration statuses, 'honour' violence arising from cultural stigma concerning the breakdown of relationships including marriage, and a lack of specialised support services[9], and these issues must, as a result, be highlighted strongly in the guidance that regulates the operation of the Domestic Violence Disclosure Scheme in England and Wales. But these sorts of issues are not addressed at all by the Scheme guidance. This appears to be because a sort of victim neutrality appears to underpin the Scheme guidance: but it has been argued[10] that cultural factors may play a large role in the 'take up' (or not) of the Scheme in certain minority communities, and thus cultural factors may play a large role in the purported success of the DVDS in helping victims, including in those minority communities. 'Purported' success is a phrase used here because the DVDS has not been widely or thoroughly evaluated, and certainly not from a critical perspective in terms of race or ethnicity, by HM Government. The Home Office impact assessment on the piloting of the DVDS in 2012-13 did note however that there were potential equality-related issues concerning the operation of the Scheme, such as in relation to issues of first language; potential risks of so-called honour-based violence; a need for police outreach work in particular communities in relation to the Scheme; the importance that the Scheme was perceived as gender neutral; and the involvement of carers in disclosures, where relevant.[11]

 

8. Guidance on the DVDS in England and Wales, including statutory guidance in the future, has to be produced by the Home Office in such a way that it meets the public sector equality duty (PSED), which in this context requires 'due regard' to the need to prevent victimisation (through disproportionate levels of domestic violence) against women (as a group with a 'protected characteristic' of sex). This requirement under Section 149 of the Equality Act 2010, as it applies in this policymaking context, entails a duty, the courts have determined, on ministers to be 'properly informed' in their decision making[12]. The failure of the Home Office or national policing bodies to examine the overall efficacy of the Scheme across diverse communities in the England and Wales, and the silence on issues of ethnicity or nationality across several iterations of guidance on it, could be seen as evidence that the Home Office, in creating the most recent guidance on the operation of the DVDS in 2016, was not 'properly informed' on issues of race and ethnicity and how they would affect the operation of the Scheme, and so, it could be argued, had not had 'due regard' to the PSED, particularly with regard to the protected characteristic of race.

 

9. It should be noted that the guidance on the operation of the Disclosure Scheme for Domestic Abuse (Scotland) does far better on this issue than guidance from the Home Office for the Domestic Violence Disclosure Scheme for England and Wales. Language difficulties and cultural barriers to dealing with the police are acknowledged by the DSDAS guidance as something Police Scotland officers should be conscious of in operating the Scheme, and as follows:

 

“Members of the public with whom Police Scotland comes into contact with and who do not speak English as their first language and are potential victims of Domestic Abuse may be particularly vulnerable… There may be additional cultural issues influencing their decision making (e.g. making it more difficult or stressful for them to go ahead with applying to the DSDAS) and/or the language barrier may discourage potential victims during Police contact. Every effort must be made to make Police contact as simple and comfortable as possible for these potentially vulnerable people.”[13]             

 

10. The guidance produced by the Department of Justice in Northern Ireland on the Domestic Violence and Abuse Disclosure Scheme (DVADS) only does a partial piece of work on this front, however, as it does not prompt specific concerns about risks to victims in ethnic minority communities, but only reminds officers in the Police Service of Northern Ireland operating that Scheme ' domestic abuse', in Northern Irish government strategy entails:

 

"threatening, controlling, coercive behaviour, violence or abuse (psychological, virtual, physical, verbal, sexual, financial or emotional) inflicted on anyone (irrespective of age, ethnicity, religion, gender, gender identity, sexual orientation or any form of disability) by current or former intimate partner or family member"[14]. [Emphasis added in italics.]

 

Conclusions

10. The overall point that women from ethnic and cultural minorities are also likely to find it harder to utilise DADS[15], even if the Schemes are effective policy, also needs reflecting more upon; and so the relevant guidance, when it is amended for any or all of the three UK DADS now in operation, should better highlight the duties the police have, to have 'due regard' to the need to prevent the victimisation of minority ethnic and nationality communities in their operational approaches[16]. Given the silence of the current guidance concerned on these issues, there is a considerable need to update the guidance underpinning the DVDS for England and Wales, as the most prevalent of the three UK DADS, and in doing so there is a real opportunity to avoid or preclude one possible element of inadvertent or indirect institutional racism in this particular feature of British policing today. One chief aim of this revision of DVDS guidance would be to highlight known difficulties and risk factors in policing domestic abuse in some ethnic minority communities in the UK, and the way that this would create a need to view the operation of Domestic Abuse Disclosure Schemes in a particularly careful way in relation to the vulnerabilities of women in those communities, specifically.

 

June 2020


[1] Home Office (2016) Domestic Violence Disclosure Scheme (DVDS) Guidance , from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf (accessed at 16.06.2020)

 

[2] These issues are given an overview in some of my own research on Domestic Abuse Disclosure Schemes. Please see Grace, Jamie, 'Whatever Happened to 'Clare's Law'? Reviewing the Evidence' (December 2, 2019). Available at SSRN: https://ssrn.com/abstract=3227956 or http://dx.doi.org/10.2139/ssrn.3227956 and M. Duggan & J. Grace, 'Assessing vulnerabilities in the Domestic Violence Disclosure Scheme', (2018) 2 Child and Family Law Quarterly 145.

[3] Please see Grace, Jamie, 'Whatever Happened to 'Clare's Law'? Reviewing the Evidence' (December 2, 2019). Available at SSRN: https://ssrn.com/abstract=3227956 or http://dx.doi.org/10.2139/ssrn.3227956

 

[4]Crown Prosecution Service, Violence Against Women and Girls Report: 2018-19, from https://www.cps.gov.uk/sites/default/files/documents/publications/cps-vawg-report-2019.pdf (accessed 16.06.2020) p.48.

 

[5] Home Office (2016) Domestic Violence Disclosure Scheme (DVDS) Guidance , from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf (accessed at 16.06.2020)

 

[6] Sofia Graca, 'Domestic violence policy and legislation in the UK: A discussion of immigrant women's vulnerabilities', EJoCLI Vol 22, No 1 (2017) online

 

[7] Home Office (2016) Domestic Violence Disclosure Scheme (DVDS): One year on - Home Office assessment of national roll-out, London: Home Office.

 

[8] Home Office (2013b) Domestic Violence Disclosure Scheme (DVDS) Pilot Assessment, London: Home Office.

[9] See for example Jyoti Belur (2008) Is policing domestic violence institutionally racist? A case study of south Asian Women, Policing and Society, 18:4, 426-444, DOI: 10.1080/10439460802349312; Sundari Anitha (2008) Neither safety nor justice: the UK government response to domestic violence against immigrant women, Journal of Social Welfare and Family Law, 30:3, 189-202, DOI: 10.1080/09649060802550592; Omolade Femi-Ajao, Sarah Kendal & Karina Lovell (2018) A qualitative systematic review of published work on disclosure and help-seeking for domestic violence and abuse among women from ethnic minority populations in the UK, Ethnicity & Health, DOI: 10.1080/13557858.2018.1447652; and Aisha K. Gill, Karen Harrison, Police Responses to Intimate Partner Sexual Violence in South Asian Communities, Policing: A Journal of Policy and Practice, Volume 10, Issue 4, December 2016, Pages 446–455, https://doi.org/10.1093/police/paw027

 

[10] See Sofia Graca, 'Domestic violence policy and legislation in the UK: A discussion of immigrant women's vulnerabilities', EJoCLI Vol 22, No 1 (2017) online

 

[11] Home Office (2013), 'Domestic Violence Disclosure Scheme Impact Assessment', from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/260899/DVDS_IA.pdf (Accessed at 14/03/15), p.20.

 

[12] On the 'properly informed' standard required to have shown 'due regard' to equality issues in policymaking, see  R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin).

 

[13] Police Scotland, DSDAS guidance and operational protocol, 2015, Author copy, page 27.

 

[14] Department of Justice (Northern Ireland), Domestic Violence and Abuse Disclosure Scheme guidance, 2018, p.4.

 

[15] See Sofia Graca, 'Domestic violence policy and legislation in the UK: A discussion of immigrant women's vulnerabilities', EJoCLI Vol 22, No 1 (2017) online

 

[16] This 'due regard' duty, as part of the Public Sector Equality Duty, is created by the language of Section 149 Equality Act 2010.