Draft Domestic Abuse Bill Contents

2Policing

Domestic Abuse Protection Notices and Domestic Abuse Protection Orders

75.Clauses 18 to 49 of the draft Domestic Abuse Bill set out a proposed new civil order to replace the Domestic Violence Protection Order which was rolled out nationally in 2014. The new order, and the notice that would precede the granting of an order, would be known respectively as a Domestic Abuse Protection Order (DAPO) and Domestic Abuse Protection Notice (DAPN).

76.The new order enters a complex legal landscape of protective measures. These include restraining orders,79 which are available in the criminal courts; non-molestation and occupation orders,80 handed down by the family and some civil courts; bail conditions, both pre-charge and post-charge;81 and undertakings, which can be given in civil courts in appropriate circumstances.82 In the response to its consultation published with the draft Bill, the Government said its aim in introducing DAPNs and DAPOs was to “combine the strongest elements of the various existing orders and provide a flexible pathway for victims and practitioners.”83 Victoria Atkins, the Home Office Minister, told us the Government intended DAPOs to become the “go to” protective order for cases of domestic abuse.84

77.Our witnesses were, unsurprisingly, supportive of any tool that would give the police and courts greater powers to protect victims of abusive relationships.85 Some aspects of the new orders, such as requiring “abusive” rather than “violent” behaviour as a precondition of the orders and introducing criminal sanctions with the power of arrest for a breach of the order, were welcomed. Overall, however, the response was negative. Particular concerns were that the proposed new notices and orders did not ‘cure’ the difficulties seen in the operation of the current Domestic Violence Protection Notices and Orders and the practical workings of the DAPO scheme had not been considered, or funded, sufficiently.

Domestic Violence Protection Notices and Orders

78.Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs) were introduced by the Crime and Security Act 2010.86 In its guidance on the use of the orders the Government said their purpose was to fill a “gap” in providing protection to victims of domestic abuse “by enabling the police and magistrates’ courts to put in place protective measures in the immediate aftermath of a domestic violence incident where there is insufficient evidence to charge a perpetrator and provide protection to a victim via bail conditions.”87

79.A review of the use of DVPNs and DVPOs by police forces across England and Wales a year after they were rolled-out nationally, found use was patchy.88 Numbers ranged from three DVPNs and three DVPOs in Cambridgeshire to 229 DVPNs and 199 DVPOs in Essex, the majority of forces submitting figures between 10 and 100.89 A review of the police response to domestic abuse by HM Inspectorate of Constabulary, Fire and Rescue Services in 2017 found:

Many forces are still not using DVPOs as widely as they could, and opportunities to use them are continuing to be missed. Over half of the forces that were able to provide data on the use of DVPOs reported a decrease in the number of DVPOs granted per 100 domestic abuse related offences in the 12 months to 30 June 2016 compared to the 12 months to 31 March 2015.90

80.The limited use made of DVPNs and DVPOs has been the subject of a super-complaint to HM Inspectorate of Constabulary by the Centre for Women’s Justice.91 The reason for the low number of notices and orders and their inconsistent use across different police forces was, the Centre thought, primarily police training.92

Abuse not violence—a strength of the proposed order

81.The Home Office review of the use of DVPNs and DVPOs found that there was some confusion in police forces over the types of abusive behaviour covered by the orders because the statute stated that a necessary precondition of issuing a DVPN was that the perpetrator had “been violent towards, or has threatened violence towards” the person for whose protection the notice was issued.93 Witnesses, including Olive Craig of Rights of Women and Dame Vera Baird, the then Policing and Crime Commissioner for Northumbria, identified this as a problem for both the police and the judiciary. Dame Vera told us that “some judges are reluctant to authorise a DVPO where there is no evidence of physical violence”;94 while Ms Craig identified the move from requiring “violence” to “abuse” as “one of the positives”95 of the proposed scheme. The DAPN scheme requires that the behaviour of the perpetrator be “abusive” rather than “violent”96 which seems to us to be in line with the purpose of the draft Bill, and to go some way towards resolving the problem with interpretation identified by our witnesses.

82.Given the Crime and Security Act 2010 states that violence or the threat of violence is required before a notice can be issued or an order granted, we can understand why both the police and the courts have found it difficult to decide whether certain types of abusive behaviour qualified the perpetrator for a Domestic Violence Protection Order or Notice. We welcome the explicit inclusion of abuse other than violence or the threat of violence and believe this removes a key weakness of the previous scheme.

Applications for DAPOs

83.An application for a DAPO would not require the victim’s consent, mirroring a key element of the DVPO procedure.97 Furthermore, an application for a DAPO can be made not only by the police but also by the victim, specialist agencies and other third parties at the discretion of the court.98

84.Applications may be made to the family court99 or in other relevant civil or family proceedings100 if made by the victim, specialist agency or third party but must be made to the magistrates’ court if being made by a senior police officer.101 The standard of proof required for a DAPO is the civil standard (balance of probabilities) which means a DAPO may be made in criminal proceedings even if the perpetrator has been acquitted.102

85.Our witnesses were generally supportive of the provision that orders may be made without the victim’s consent. Kate Ellis, of the Centre for Women’s Justice, welcomed the move telling us that it “took some of the onus off victims”103 which was particularly important for migrant women who were particularly vulnerable.104 Nazir Afzal said that one of the key weaknesses of other protective orders such as a non-molestation orders was:

they all rest entirely on the victim’s shoulders. She—invariably she—has to pursue them, support them and pay for them, if she is not legally aided in any way, shape or form. If they are breached, she has to come forward. We don’t do that for some other things.105

86.Olive Craig, of Rights of Women, told us they had heard some concerns over the inclusion of third parties as potential applicants for DAPOs: “We have some concerns about possible abuse, in terms of family members being able to apply for them, and about there being unknown third parties; the suggestion is that it will be probation or the local authority, although that is not in the actual Bill.”106

87.Domestic Abuse Protection Orders may be applied for without the victim’s consent by the police, specialist agencies and third parties with the consent of the court. We believe it is a key strength of the proposed orders that they can be made by the police without the victim’s consent: the nature of domestic abuse is such that pressure not to take action against the perpetrator will often be overwhelming and it would significantly weaken the protective effect of the orders if only victims were able to apply for them. We note the concerns about third parties being able to apply for orders and this potentially been subject to abuse by family members or others. We believe the fact that any such application is at the discretion of the court will prevent instances of abuse.

Alternatives to DAPOs

Time limits

88.Many of the concerns we heard around the proposed new orders related to the significant changes made to the nature of Domestic Violence Prevention Orders. The DVPO scheme was, in part, a response to the relatively narrow approach taken by the courts to the granting of occupation orders under the Family Law Act 1996. Occupation orders allow the victim of domestic violence to occupy the property alone, in some cases indefinitely.107 Courts must grant an occupation order to an entitled applicant where “significant harm” would be caused to the other party, or a child, if the order was not made to evict the perpetrator and that harm is greater than the harm that would be caused to the perpetrator by the eviction, the so-called ‘balance of harm’ test.108 Otherwise, the judge has a discretion to grant the order, having considered all the circumstances.109 This would also be the case where the applicant cannot demonstrate entitlement to the property within the terms of the Family Law Act 1996.

89.In Chalmers v Johns [1999] Fam Law 16, the Court of Appeal held that occupation orders were “draconian” because they override “proprietary rights” and so were “only justified in exceptional circumstances.”110 The courts have also described them as “a last resort in an intolerable situation.”111 DVPOs were intended as emergency orders that give victims of abuse a breathing space, overcoming the high bar placed on their issue by the courts by being limited to between 14 and 28 days, a limited interference with the perpetrator’s property rights.112 DAPOs, in contrast, do not appear to be subject to a statutory time-limit, although their duration must be specified in the order.113 The relevant clause goes on to specify that electronic monitoring under an order must be reviewed every 12 months,114 which implies the Government intends that DAPOs will be imposed for a significantly longer period than the 14–28 days available under DVPOs.

90.We are concerned that the potentially indefinite nature of Domestic Abuse Protection Orders will result in the courts’ granting them less often than they grant time-limited Domestic Violence Protection Orders, meaning protection for victims will overall be reduced.

91.End Violence Against Women (EVAW) told the Joint Committee on Human Rights in their inquiry into the draft Bill that: “We anticipate that criminal courts and civil courts will make these orders differently and that family court judges may view them as overly draconian where there is no criminal conviction.”115

Positive requirements

92.DAPOs can have “any requirements that the court considers necessary to protect the person for whose protection the order is made”116 including positive requirements, such as electronic monitoring.117 Positive requirements were not available under the DVPO scheme. This innovation received a mixed response from our witnesses who identified legal and practical difficulties with the new approach.

93.Liberty and Rights of Women expressed concerns that attaching positive requirements, specifically electronic monitoring, to protective civil orders may breach the right to liberty and the right to privacy of the subject of the order. These concerns were heightened by the fact that legal aid will not be available in DAPO cases. We note that the Joint Committee on Human Rights did not raise concerns on this issue in its letter to us on the rights implications of the Bill.118

94.Edward Argar, the Justice Minister, agreed that:

It is not a simple area of law. You are absolutely right to highlight it. There is always an opportunity for challenge. We believe that we have struck an appropriate balance, which will keep us in line with the ECHR requirements. However, as I have discovered in my year in this post, there are often ways that very smart lawyers can challenge, under ECHR, particular decisions. There is always a balance on these things, and we believe that we have struck the right balance that keeps on the right side of our ECHR obligations to individuals, particularly around the right to privacy.119

95.In its response to the Government’s consultation on domestic abuse, Rights of Women was unconvinced that positive requirements would significantly enhance the protection given to individuals by DAPOs. It noted that both family and criminal courts can already add positive requirements to currently available orders to protect victims of domestic abuse. The organisation was particularly concerned that positive requirements “change the nature” of protective orders. Currently, non-molestation orders can be obtained in two hearings and give long-term protection from an abuser: “If there are no other legal issues, the victim should be able to move on, free from the perpetrator.” An order with positive requirements may mean the victim has to remain involved with the operation of the order.120

96.The Bill requires that the court must specify the person responsible for monitoring compliance with a positive requirement.121 When we asked Dame Glenys Stacey, Chief Inspector of Probation, who would be responsible for monitoring compliance with positive requirements she responded “we were hoping to ask you that question, actually.”122 Suzanne Jacobs, of SafeLives, observed that monitoring compliance with positive requirements would be about multi-agency working:

This is not about the surveillance state; this is about ensuring that where somebody is perpetrating really damaging abuse against another individual, we fetter their behaviour and close down their space for action. That is what victim/survivors should expect from the state. It might have its challenges, but let’s not just give up before we begin. We absolutely must create the infrastructure for that to happen. If we can do that for terrorist suspects and organised crime nominals, we should certainly be doing it for people who kill 100 women every year.123

97.London Councils agreed, telling us: “Robust and coordinated multi-agency approaches should be integral to implementing the DAPO on a local level, including local authorities who have an important role in wider risk management around perpetrators.”124 Dame Vera disagreed, and called for a single agency to oversee compliance:

To be effective, notices and orders must be monitored by one agency which ensures any breaches are acted upon and any positive requirements/prohibitive conditions monitored. This is crucial if orders can be applied for by various people in various courts. Failing this, victims will have a false sense of security and these protection tools will be redundant… This one agency with responsibility for overseeing DAPN/Os must have sufficient funding, resources and training.125

98.Other witnesses, including EVAW and Women’s Aid, noted that breaches of non-molestation orders were currently not always treated sufficiently seriously by the police, which they saw as having implications for the new order.126 The failure for the police to act consistently on breaches of non-molestation orders was part of the super-complaint by the Centre for Women’s Justice.127

99.London Councils also welcomed the Government’s commitment to trialling the new orders, including the electronic monitoring requirement: “Lessons learned from this pilot should inform any wider implementation, so there can be assurances that these elements of the DAPO are safe and effective before being rolled out further.”128

100.Rights of Women was less positive about the potential for positive requirements to enhance the protection given to survivors by orders. They were particularly concerned that the practical realities of electronic monitoring would not meet expectations:

The current system of electronic monitoring does not function particularly well. Breaches are reported while perpetrators are at home because of faulty equipment or a perpetrator going into their garden. We are aware that the police often do not have the capacity to pursue breaches and they are a low priority for them. We believe the requirement for electronic monitoring could give survivors a false sense of protection and, therefore, increase the risk to them.129

101.EVAW agreed, saying “Electronic tagging could, when breaches of current orders are so poorly enforced, risk the safety of victims who are lulled into a false sense of security.”130

102.We believe attaching positive requirements to Domestic Abuse Protection Orders has the potential to enhance the protection given to victims. The practicalities of the scheme, however, do not appear to have been thought through. Without funding for training or an infrastructure for monitoring compliance, use of positive requirements will be very limited or run the risk of making things worse as victims are forced to try and monitor their abusers’ compliance with the order themselves. The simple question which the draft Bill does not address is which organisation or organisations are to be responsible for the monitoring of positive requirements. Without this clarity, the provisions relating to this proposal may fail. The use of positive requirements also has legal implications for the utility of the order which we consider below.

Criminal sanctions

103.In contrast to Domestic Violence Protection Orders, breach of a Domestic Abuse Protection Order may lead to arrest and criminal sanctions.131 Many of our witnesses, including Women’s Aid and Safe Lives welcomed the change. Amanda Barron observed that introducing criminal sanctions for DAPOs made them part of a “graduated system” of protective measures, which range from undertakings by the perpetrator where a breach will be punished as a contempt of court to restraining orders under section 5 of the Protection from Harassment Act, which have criminal sanctions but are available only after the resolution of criminal proceedings.132

104.Concerns about criminal sanctions centred on the potential for injustice to perpetrators and the potential for the threat of criminal sanctions to deter victims from reporting abuse. Liberty told us:

These measures circumvent the criminal justice system as a person may end up incarcerated based on facts determined by a legal process that falls far below the standard of fair process necessary to justify a criminal conviction. Where a criminal sanction results from breach of a civil order, this in effect creates a personal criminal code that a person must abide by—a code set by the conditions of the DAPO, rather than the individual being measured against a general legislative criminal standard. This is a clear threat to fair process, the rule of law and engages the accused’s rights under Article 6 ECHR.133

Liberty said their concerns were supported by Rights of Women and Sisters for Change.

105.Other witnesses were concerned that the prospect of criminal sanctions might deter victims who did not want to see their abuser criminalised. Elspeth Thomson of Resolution said “ I think it is important that the victim has a choice of how it is enforced, either as a criminal offence or as a contempt of court. A lot of victims do not want to see the person being criminalised.”134 The Law Society of England and Wales concurred, noting: “the complex relational dynamics of domestic abuse and the difficulty and conflict that victims experience in reporting partners or other associated persons to the police.”135

106.Victoria Atkins, Home Office Minister, told us that the aim behind the introduction of criminal sanctions for breach of the orders was to put pressure on the perpetrator to comply with the order: “We hope that will help in situations where a victim is very concerned that the perpetrator will break the terms of the order. We believe that having that as the ultimate penalty for breaching the order will make the perpetrator take it seriously.”136

Ensuring consistency in the imposition of orders

107.Domestic Abuse Protection Orders can be imposed by both the civil and criminal courts. The standard of proof required for a DAPO is the civil standard (balance of probabilities) which means a DAPO may be made in criminal proceedings whether the perpetrator has been convicted or acquitted.137 We heard concerns from some witnesses that this may lead to a difference of approach, particularly given the civil courts do not have access to probation assessments for the imposition of positive requirements. Andrea Simon, of EVAW, highlighted the potential danger of “different courts—family courts and criminal courts—applying the orders in different ways, and we would not like to see different levels of protection offered to women in different jurisdictions.”138

108.We are concerned at the potential for inconsistent approaches between the civil and criminal courts to applications for Domestic Abuse Protection Orders. We recommend that detailed guidance for applicants, defendants and the judiciary be introduced on the circumstances in which such protective orders are granted, with particular consideration given to the evidence required and the assessment of risk posed by the respondent to the applicant for the order.

Cost

109.An application for a DVPO costs the police £205 and a contested hearing costs £515.139 Rights of Women told us that the police will seek a costs order against the respondent, which will only be granted when the application is successful. It is unclear how many costs orders are made following applications for DVPOs, and, most pertinently, how much money is actually recovered from respondents when costs orders are made. A National Audit Office report from the summer of 2011 concluded that as much as £1.3bn was owed in court fines, prosecutor costs and other payments arising from court proceedings.140

110.We understand that police forces did not receive any additional funding when DVPOs were rolled out nationwide. Olive Craig, Legal Officer at Rights of Women, among others, said the organisation had been told by police officers, victims, and frontline domestic violence support staff that one of the reasons they did not use these orders was because they were seen as “too expensive.”141 Ms Craig observed of the proposed scheme:

The additional problems that we think they will create is that some of the provisions of the orders are more draconian in nature, so courts may be less likely to grant them in the first place. We think that they are certainly more likely to be defended, which will then increase those cost concerns in the police’s mind, because they will become more expensive to apply for.142

111.The Impact Assessment for the draft Bill did not allow for any additional costs to the police.143 Victoria Atkins, Home Office Minister, told us that police would, however, continue to pay for DAPO applications at a fee determined in regulations. Ms Atkins told us the Government would be making the case to the police for spending resources on DAPOs:

The argument that we will deploy is that if you have a serial perpetrator, there are significant advantages—economic and moral, and for health and emotional wellbeing—to the police in intervening at a much earlier stage, before the threshold for prosecution is met. Fees still have to be decided, but we will argue very strongly that the orders should be viewed as preventive measures.144

112.Significantly for the success of the new order, Ms Atkins told us that victims would not have to pay fees.145

113.The Government’s insistence that the police pay a court fee to make an application for a Domestic Abuse Prevention Order, while victims do not, will undermine the entire scheme and end any chance of the orders becoming the ‘go-to’ order to protect victims of domestic abuse. Police officers will be put in the invidious position of having to choose to use scarce resources to make an application or persuading the victim to make the application themselves. This effectively removes a key strength of the order, that an application may be made without the victim’s involvement, or even consent. We strongly recommend that applications for Domestic Abuse Protection Orders be free to the police, with appropriate funding to HM Court and Tribunal Service.

114.We welcome the Government’s ambition to improve the protection available to victims of domestic abuse. Strengths of the proposed scheme include explicitly broadening qualifying abusive behaviour beyond physical violence; not requiring the victim’s consent to the issuing of an application for an order but providing safeguards on who can make such applications; and, with significant caveats, the introduction of positive requirements.

115.We accept the Government’s assurance that the proposed new order is compliant with our human rights obligations. We are very concerned, however, that the introduction of indefinite time limits, positive requirements and criminal sanctions combine to create such a burden on the perpetrator that the courts will be reluctant to impose the orders in all but the most exceptional of circumstances, meaning the draft Bill runs the danger of reducing the protection available to victims rather than increasing it. We note the limited use of occupation orders by the courts as a lesson the Government needs to consider before going forward with these proposals. Without learning such lessons DAPOs will not be able to fulfil the Government’s intention that they will be the ‘go to’ order in cases of domestic abuse.

116.We recommend the Government carry out a thorough review of the protective measures currently available before going ahead with its proposals for the Domestic Abuse Protection Order. Following that review, we anticipate the Government will amend the current scheme both to tackle the flaws seen in the Domestic Violence Protection Order process and to ensure that the courts are not obliged to take a restrictive approach to imposing the new order.

117.While that review is being undertaken, we recommend additional resources are allocated to the police specifically for training and application fees for Domestic Violence Protection Orders.

Bail in cases of domestic abuse and sexual assault

118.Pre-charge bail is the release of an individual by the police pending further inquiries. The person released is required to return to the police station to be re-interviewed or charged, and is subject to arrest if he or she fails to do so.146 The power to impose additional conditions, such as prohibiting contact with witnesses or the surrender of a passport to prevent absconding were introduced in 2003.147

119.In 2017, the Policing and Crime Act 2017 restricted the length of pre-charge bail to 28 days in most circumstances.148 Extensions could be authorised by senior police officers but only if the officer authorising the extension had reasonable grounds for believing the investigation was being made “diligently and expeditiously.”149 This was a response to cases such as that of the radio broadcaster Paul Gambaccini who was repeatedly released on bail for a year while being investigated over historic sex abuse allegations, before being cleared of all charges. Mr Gambaccini had been suspended by the BBC without pay throughout the time he was on bail.150

120.In March 2019, the Centre for Women’s Justice (CWJ) made a ‘super-complaint’ to HM Inspectorate of Constabulary concerning the alleged limited and inconsistent use of police powers to protect women suffering domestic abuse.151

121.Lucy Hadley, of Women’s Aid, told us the changes to the bail regime had led to the police “drastically” reducing the use of bail for men accused of “rape and domestic violence” which is “having the effect of putting women at risk” because the alleged offender is being released without conditions.152 Her concerns were echoed by other frontline organisations, including EVAW. DCC Louisa Rolfe, of the National Police Chiefs’ Council, agreed that the reduction in pre-charge bail in domestic abuse cases had been significant, and told us that it could be difficult to convince a judge of the need for bail when a case progressed to court if he or she had not been on police bail.153

122.Kate Ellis, of the Centre for Women’s Justice told us that “resources, training and understanding” were all part of the problem with the new bail regime but the biggest challenge seemed to be resources in the context of a 28 day initial grant of bail combined with a stringent test for an extension:

In the course of criminal investigations, 28 days is not a long time, especially when you have stretched police forces, but in general anyway. What is happening is the police are either applying and being rejected or looking at what they have got and saying, “We haven’t yet done forensics,” or “We haven’t yet got to this stage. Therefore, there is no point applying.”

In some instances, police were not even arresting suspects, with suspects being invited to voluntary interview, because it removes all the bureaucracy and allows police to arrange interviews with suspects by appointment, which was seen as much less resource-intensive. Of course, in a voluntary interview, you do not have the power to impose bail, which again I think is one of the incentives, because it removes the bureaucracy of even having to think about whether bail is necessary and proportionate. That was a problem.

Where that was not happening, sometimes suspects were being arrested and then released under investigation, and extensions were not being applied for after 28 days, either because it was thought not to be necessary, or because, in the majority of cases, the investigation had not been able to progress that far. That was the data.154

123.From the police perspective, Deb Smith, of the Police Superintendents Association, agreed that the stringency of the test applied to the extension of bail beyond 28 days at a time of reduced resources presented significant problems in domestic abuse cases:

To get a charge on a domestic abuse case, there clearly has to be a significant amount of evidence gathered. That is almost always going to be nigh-on impossible in the first 28 days, even if somebody is released on bail. Then obviously we go to superintendent’s extension for the three months, and even that is a challenging timeframe in which to get all the evidence required to satisfy a charge—third-party material, mobile phone records and so on.155

124.The Centre for Women’s Justice told us that the risk to the victim of the suspect being released without bail was not part of the test for an extension of bail after the initial 28 days:

Whilst speeding up investigations is an admirable aim, in reality, especially with very stretched resources and increases in reporting of domestic abuse and sexual offences, the criteria to extend bail may not be met because investigations have not been progressed swiftly enough. This is a windfall for suspects and leaves victims exposed through no fault of their own. Even in a case which is clearly high risk and there is no question that bail conditions are required, under the current legislation if the investigation is not progressed properly there will be no bail after an initial 28-day period. This cannot be acceptable and achieves a wholly improper balance between the rights of suspects and victims.

The 2017 Act is built around a framework of protections for suspects: as a further example, the Act requires that before bail is extended the suspect or his legal representative must be informed and any representations made by them considered, without any requirement to consult victims … The reforms were initially motivated by a need to address far longer periods on bail than those specified by the 2017 Act, of over a year, sometimes several years.156

125.The Centre for Women’s Justice noted the negative consequences of the reduction in bail use included victims being in fear; suspects contacting victims leading to some withdrawing their support for prosecution and the failure to arrest suspects inhibiting police powers of investigation, such as the power to seize the suspect’s mobile phone.157

126.We also heard that the consultation prior to the 2017 bail reforms did not hear from any women’s organisations, or victims’ groups, and that only policing bodies, organisations representing suspects and defence lawyers participated.158

127.Victoria Atkins, the Home Office Minister, told us the Government was “very aware”159 of concerns over the 2017 bail regime and had worked with the National Police Chiefs’ Council to issue guidance to officers on the use of bail. She observed: “Pre-charge bail is still available. It is almost as though the pendulum has swung the other way, and we need to get it back in the middle by ensuring that for cases where it is appropriate to go beyond 28 days, people are being released on pre-charge bail with conditions as necessary and proportionate.”160

128.The changes to the bail regime in the Policing and Crime Act 2017 were well-meaning. Unfortunately, the result has been that pre-charge bail is no longer an effective protective measure in domestic abuse cases. While there may be an issue with police training and guidance on the operation of the reforms, 28 days bail combined with a rigid test for any extension does not take into account the need to protect victims from perpetrators and allow the police time to do their job within the resources available. We recommend that the Government urgently bring forward legislation to increase the length of time suspects can be released on pre-charge bail in domestic abuse cases. We also recommend a rebalancing of the test for allowing extensions to pre-charge bail to give full weight to the protection of the victim from the risk of adverse behaviour by the suspect, thereby balancing the rights of the victim with those of the suspect.

129.We suggested to DCC Rolfe that there should be a presumption that individuals under investigation for domestic abuse only be released on bail. Ms Rolfe said:

I think a presumption of bail would be appropriate in domestic abuse cases. Although domestic abuse covers a vast range of incidents, often when we make an arrest, those are the cases we are concerned about. It may not be appropriate in every case. In some cases, where out-of-court disposals and rehabilitative, preventive work with other agencies is appropriate, bail may not be appropriate. Certainly, we should build some gatekeeping into those decisions, and ensure that bail is the presumption in cases of domestic abuse where we have made an arrest.161

130.Deb Smith agreed with her colleague and suggested any such presumption should include “ any crime where there is a significant safeguarding issue, such as child abuse or exploitation.”162

131.We recommend the Government amend the Policing and Crime Act 2017 to create a presumption that suspects under investigation for domestic abuse, sexual assault or other significant safeguarding issues only be released from police custody on bail, unless it is clearly not necessary for the protection of the victim. We consider this vital not only to protect victims but to give them confidence that their complaint is been taken seriously and that the criminal justice system will have regard to their welfare throughout any proceedings arising from their complaint.

Domestic Violence Disclosure Scheme

132.The Domestic Violence Disclosure Scheme allows an individual to ask the police if someone with whom they are in a relationship has a record of violent or abusive behaviour (the ‘right to ask’) It also allows the police to proactively share information with an individual in order to protect a potential victim (the ‘right to know’). The scheme is based on the common law power of the police to share information where there is a “pressing need” to do so in order to protect the public.163 The scheme is also known as ‘Clare’s Law’ after Clare Wood, who was murdered by her violent ex-boyfriend in 2009.164

133.The draft Bill puts the Home Office guidance issued to the police on the operation of the DVDS into statute.165 In the consultation on the draft Domestic Abuse Bill, the Government said putting the current guidance into statute:

… will place a duty on the police to have regard to the guidance and strengthen the visibility and use of the scheme. We think that this will result in more people being warned of the dangers posed by their partners (or ex-partners) and help keep victims safer.166

134.Our witnesses broadly welcomed the move. Lucy Hadley, of Women’s Aid, hoped it would also improve consistency across police forces in the use of the DVDS. She told us, however, that the DVDS was not a “silver bullet” because “most survivors will not bring criminal convictions or criminal proceedings, therefore their perpetrator will not be known to the police, so that perpetrator will never show up on the disclosure scheme.”167 In this context, Ellie Butt, of Refuge highlighted that the Government’s Impact Assessment estimated only a 5–10% increase in applications under the DVDS.168 Andrea Simon though the legislation “should raise awareness of the scheme, which should help to ensure that it is embedded into best practice across police forces.”169 Ms Simon cautioned:

there is a need also to ensure the immediate availability of support and advice services for those who are vulnerable to experiencing abuse or who are already in abusive situations […] There is this core response to domestic abuse, but it cannot work on its own—in isolation—to keep women safe.170

135.Professor Sandra Walklake, of Liverpool and Monash Universities, and Dr Kate Fitz-Gibbon of Monash University (Victoria, Australia), in evidence to the Joint Committee on Human Rights, disagreed with the Government’s proposals to increase the use of the DVDS on the grounds that “there is no evidence to date that DVDS acts as a preventive strategy or an effective intervention.”171 They noted that the average time taken for disclosure was 39 days which “mitigates any preventive potential of the Scheme and heightens victim’s risks.”172

136.SafeLives identified further risks in the use of the DVDS, including the importance for an applicant for disclosure to understand that even if the police had no information to disclose this did not mean their partner did not have a history of abuse; and potential for the recipient of a disclosure under the ‘right to know’ to be resistant to the offer of information if it was made at the wrong time or in the wrong place for that individual. SafeLives told us that it was crucial to the success of the DVDS that the police understood that “it will always be more suitable for the state to disclose knowledge to people at risk so they can make safe choices, rather than members of the public having to hunt out that information from one or more agencies proactively.” SafeLives highlighted the importance of training for the police if the DVDS were to operate successfully.173

137.The DVDS has had limited use since its creation in 2014—the latest figures revealed that there were 4,655 “right to ask” applications resulting in 2055 disclosures in the year ending March 2018.174 There were also 6,313 “right to know” applications resulting in 3,594 disclosures in the same period.175 This compares with the 1,198,094 domestic abuse-related incidents and crimes recorded by the police in England and Wales in the same year.176

138.The reasons for the low number of ‘right to ask’ applications seems obvious to us—as one witness put it “when you are at the start of a relationship it is not really in your mind to go and ask the police for disclosure … of your new partner’s criminal past,”177 a point acknowledged by the Minister.178 The low numbers of ‘right to know’ applications are more difficult to explain, but police concerns around data protection and the right to privacy of the potential subject of an application probably contribute. As noted above, witnesses also told us there was “patchy”179 use of the powers across different police forces which should be improved by the reforms in the draft Bill. Other witnesses suggested that the police should be placed under a significantly higher duty to share information with a potential victim of domestic abuse by keeping a repeat domestic abusers register, modelled on the current Violent and Sex Offenders Register.180

139.Sophie Linden, Deputy London Mayor for Policing and Crime, and Claire Waxman, Victims’ Commissioner for London told us they were “disappointed that the Bill does not include the setting up a register of serial perpetrators that would address offending and protect victims.”181 The London Assembly agreed, arguing that a register could:

vastly improve the way police forces are able to proactively track and manage the risk presented by the most dangerous perpetrators of domestic abuse. A Domestic Abusers Register would encourage proactive risk management: it would place the onus on the most dangerous domestic abuse offenders to register with the police, and keep up to date, details such as address and relationship status; and allow police forces to assess the threat posed by offenders in their communities and put in place the required level of proactive policing or a lower level of monitoring through existing partnership arrangements …182

140.The London Assembly suggested that any register could be operated through the current multi-agency management of offenders. It highlighted the conclusion of a study by the Association of Police and Crime Commissioners (now the National Police Chiefs Council) that “found a Domestic Abusers Register would be cost neutral if just 357 cases of domestic violence were prevented over a three-year period.”183

141.Penelope Gibbs, of Transform Justice, told us “I am opposed to a register; I feel that Clare’s law gives people who might suspect their intimate partners or somebody else of domestic abuse the ability to ask the police and get that information… I still failed to understand exactly what need this register fulfils and what harm is avoided by having it.”184 Dame Glenys Stacey, Chief Inspector of Probation, also sounded a note of caution: “It is really about the definition of a domestic abuser, how long you are on the register and the impact of that registration on other aspects of your life … The bare notion of a register concerns me, for basic libertarian reasons.”185 Suzanne Jacob, of Safe Lives, noted that a register could overcome gaps in knowledge created by the use of different databases but suggested that “really strengthened use of PND/PNC in existing systems, both inside the police and … between different agencies” could have a similar effect.186 Louisa Rolfe, of the National Police Chiefs’ Council, was very supportive of improved multi-agency working.187

142.We endorse the Government’s decision to place the guidance to the police on the Domestic Violence Disclosure Scheme (DVDS), also known as Clare’s law, on a statutory footing. We believe this will increase awareness of the DVDS among the general public and so those who could benefit from it. We acknowledge that the DVDS is only ever likely to be used by a small number of people, and there may be some risks involved for an individual making a ‘right to ask’ application, but we believe these can be reduced by a situation-sensitive approach by the police. Ultimately, the DVDS is only one small part of the wider state response to the challenge of tackling domestic violence.

143.We note the criticisms of the police’s limited use of the ‘right to know’ powers they possess under the Domestic Violence Disclosure Scheme (DVDS). We believe this will improve with the reforms to the guidance contained in the draft Bill. We also believe that it would increase with improved multi-agency working and we recommend further work is done in this area. We have taken evidence both in favour and against a register of offenders committing repeat domestic abuse offences, and propose this is an area which the Government should keep under review.


79 See the Protection from Harassment Act 1997, s5

80 Family Law Act 1996, ss42–43 and ss30–41 respectively

81 See below

82 Family Law Act 1996, s46(1)

85 See for example Safe Lives (DAB0458) and Women’s Aid (DAB0404)

86 Ss 24–33

87 Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs) Guidance (December 2016) Home Office

89 Greater Manchester Police was a pilot region for the scheme and its figures of 1339 and 1283 for DVPNs and DVPOs respectively were significant outliers.

90 Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, A progress report on the police response to domestic abuse (November 2017)

93 Crime and Security Act 2010, s 24(2)(a)

94 Northumbria PCC (DAB0500)

96 Draft Bill, cl 18(2)

97 Crime and Security Act 2010, s 28(5)

98 Draft Bill, cl 25(2)

99 Draft Bill, cl 25(5)

100 Draft Bill, cl 25(7)

101 Draft Bill, cl 25(6)

102 Draft Bill, cl 27(5)

107 Family Law Act 1996

108 Family Law Act 1996, s 33(7); Chalmers v Johns [1999] Fam Law 16

109 Family Law Act 1996, s 33(6)

110 Per Thorpe LJ Chalmers v Johns [1999] Fam Law

111 Re Y (Children) (Occupation Order) [2000] 2 FCR 470 (CA)

112 DVPOs are granted for between 14 and 28 days: Crime and Security Act 2010, s 28(10)

113 Draft Bill, cl 34(3)

114 Draft Bill, cl 34(5)

115 End Violence Against Women Coalition written evidence to the Joint Committee on Human Rights DVB0045

116 Draft Bill, cl 31(1)

117 Draft Bill, cl 31(6)

121 Draft Bill, cl 32(2)

124 London Councils (DAB0486)

125 Northumbria PCC (DAB0500)

126 Women’s Aid Federation of England (DAB0404), End Violence Against Women Coalition (DAB0490)

128 London Councils (DAB0486)

129 Rights of Women response to Home Office consultation, quoted in Transforming the Response to Domestic Abuse Consultation Response and Draft Bill (January 2019)

130 End Violence Against Women Coalition (DAB0490)

131 Draft Bill, cll 22, 36, 39 etc.

133 Liberty (DAB0216)

135 The Law Society of England and Wales (DAB0482)

137 Draft Bill, cl 27(5))

139 Rights for Women (DAB0004)

140 Report of the Comptroller and Auditor General, Ministry of Justice: Financial Management Report HC(2010–11) 187, para 2.17

141 Rights for Women (DAB0004)

143 Home Office and Ministry of Justice, Impact Assessment (January 2019)

146 Police and Criminal Evidence Act 1984, s 30A

147 Criminal Justice Act 2003, s 13 amending the Bail Act 1976. Previously such conditions could only be imposed by a court: Bail Act 1976, s 3(6).

148 Policing and Crime Act 2017, s 63v

149 Police and Criminal Evidence Act 1984, s 47ZC as amended by Policing and Crime Act 2017, s 63

150 See Home Affairs Select Committee, Seventeenth Report of Session 2014–2015, Police Bail, HC 962

156 Centre for Women’s Justice (DAB0323)

158 Centre for Women’s Justice (DAB0323)

163 Home Office, Domestic Violence Disclosure Scheme (DVDS) Guidance (December 2016), para 3

164 Home Office, Domestic Violence Disclosure Scheme (DVDS) Guidance (December 2016), para 2

165 Draft Bill, cl 53

171 Written evidence to JCHR (DVB0012)

172 Written evidence to JCHR (DVB0012)

173 SafeLives (DAB0458)

174 2055, or 44%, of the requests were granted and resulted in the disclosure of information. Results were based on returns form 41 of the 43 police forces in England and Wales. Office for National Statistics, ‘Domestic abuse in England and Wales: year ending March 2018’, accessed 11 June 2019

175 57% of ‘right to know’ applications resulted in disclosures. Office for National Statistics, ‘Domestic abuse in England and Wales: year ending March 2018’, accessed 11 June 2019.

176 Around half of those incidents were subsequently not recorded as crimes. Office for National Statistics, ‘Domestic abuse in England and Wales: year ending March 2018’, accessed 11 June 2019

177 Q56 [Craig]

180 The Violent and Sex Offenders Register was created under the Sexual Offences Act 2003v. It was preceded by an earlier notification regime which began in September 1997.

181 Sophie Linden, Deputy Mayor for Policing and Crime, and Claire Waxman, Victims Commissioner for London (DAB0520)

182 The London Assembly (DAB0002)

183 The London Assembly (DAB0002)




Published: 14 June 2019