Clare’s Law – an ideal

[EDIT : Readers should take a look at the helpful (but depressing) comment from Steven Barratt regarding the way in which LASPO is being interpreted, along with my response. It seems that my idea is unlikely to work :-(]

I’ve had an ideal, as they say in Bristol. “Lightbullb!” as Gru would say.

Banksy depicts marital breakdown... Pic thanks to Williamsdb on flickr

Banksy depicts marital breakdown… Pic thanks to Williamsdb on flickr

I’ve been a mite negative about so-called Clare’s Law (the domestic violence disclosure scheme), but it occurred to me today that it has an unforeseen utility. And it is this…

Applicants for legal aid in private family disputes need to provide evidence of domestic violence from a long but very specific list.

For all but one of the categories of permissible evidence there is a 2 year cut off, that is to say historic dv don’t count. Not, of course, that 2 years and a day feels very “historic” for the victim, or indeed the child witness. But I digress.

So. There will be many people who have suffered domestic violence at the hands of the person now taking them to court about the kids or the house, and who have suffered it not so long ago, and who have evidence of that domestic violence – but who are nonetheless left out in the cold as far as state assistance for legal advice and representation is concerned. Because it’s not quite fresh enough to trump austerity. Thank you LASPO. Gert lush.

Unless.

Unless they are able to fit within Reg 33(2)(a) of the Civil Legal Aid (Procedure) Regulations 2012 by providing evidence of “a relevant unspent conviction for a domestic violence offence” that is.

Doesn’t have to be a conviction for an offence against the applicant for legal aid.
Doesn’t have to be a conviction in the last 2 years. It does have to be unspent, mind you but doesn’t have to be in the last 2 years.

(Of course, if there is recent or ongoing behaviour they can apply for a non-mol and get in that way. But in such circumstances there is unlikely to be a 2 year problem.)

This is where Clare’s Law comes in. A victim of domestic violence say, 3 years ago, needs legal representation to be able to deal with proceedings brought by his or her ex. No recent incidents, but that is because the violent partner has not known where they fled to, but its no less terrifying for the 3 year distance.

Chances are s/he may have relevant pre-cons. Chances are one of them might be unspent. Clare’s Law potentially enables the victim to obtain that evidence and protect themselves from the vulnerability of being a litigant in person.

Yay. *Small Bristolian dance*. Not ideal. But an ideal.

Similarly I suppose, Sarah’s law (same but for sex offenders) may assist the so-called “protective parent”.

I’m certainly not encouraging fishing expeditions to get dirt on a former partner as a device to get legal aid. But in circumstances where there is a regulatory set up involving a vast amount of technical hoop jumping with sometimes arbitrary and concerning results, it is necessary and legitimate to assist people who ought to be eligible for help to obtain that help. Parliament intended for LASPO to catch victims of domestic violence. We know in practice some of them are falling through the net. And it is not beyond the bounds of possibility that a person who was violent three years ago was also violent five years ago, and got caught and convicted. Sadly repeat perpetrators do escape without convictions over many years and across multiple relationships, but it might help someone. One of the real difficulties with the LASPO evidence requirements is the need for victims themselves to obtain evidence. Clare’s Law might help them access information they might otherwise struggle to get hold of. And although I haven’t been able to access the up to date protocols for the scheme now it is nationally rolled out it must be right that one factor the police will consider when making a disclosure decision is that the applicant proposes to use the information to protect him/herself and their children through the seeking of court orders (or through resisting them).

Of course it doesn’t assist at all with the elephant in the room which is the absence of legal aid AT ALL for those accused of domestic violence, some of whom of course are not guilty of such allegations.

But it is at least some small comfort to think that one daft ministerial ideal might unwittingly help to undo some of the injustice of stupid ministerial ideal (or do I mean idealology?).

Gert lush.

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6 thoughts on “Clare’s Law – an ideal

  1. Am pondering whether a few law geeks might put their heads together and think of the sort of magic words that might get the LAA to at least put your section 10 LASPO application for the funding in the “Oh, I’d better ask my boss about this one” pile

    You basically have to do enough to hint that if you don’t get funding you might judicially review, or take the case to Europe as an article 6 breach (or actually just claim compensation for an article 6 or 8 breach against the LAA).

    That makes the notion of litigants in person filling in the claim laughable – if they can’t get Airey v Ireland in, they’ve got no chance, and if they know enough to mention Airey v Ireland the LAA will decide that they are more than capable of representing themselves. I think someone once wrote a book about that sort of dilemma.

  2. Andrew, you wallie, you’ve just given the LAA their “get out of jail gree” card – they would never have worked that out on their own!

  3. Or even FREE, sod this keyboard!

  4. M. Northern Lights

    Lucy,

    I can’t find a single gender assumption in that post!

    And thanks for raising (again) this affront to the principle of justice:

    “Of course it doesn’t assist at all with the elephant in the room which is the absence of legal aid AT ALL for those accused of domestic violence, some of whom of course are not guilty of such allegations.”

  5. Steven Barratt

    Whilst I agree that the article correctly states the legal position and probably the understanding of politicians when they passed the rules, the Legal Aid Agency appear to have added a gloss in there guide “Evidence Requirements for Private Family Law Matters”
    In the notes to Regulation 33(2)(a) they say
    2.9. Some sexual offences do not specifically name the victim; for all other offences it must be possible to identify that your client was the victim of domestic violence.
    2.10 The fact that a perpetrator has committed a domestic violence offence against a third party, which your client believes might place him/her at a future risk of domestic violence will not meet the evidence criteria.

    • Thanks Steven,
      I’ve gone back to look at the primary legislation under which the regs were made, which is Sch 1 to LASPO, and that provides for legal aid for
      (1)Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—
      (a)there has been, or is a risk of, domestic violence between A and B, and

      (b)A was, or is at risk of being, the victim of that domestic violence.“, which it seems to me includes the scenario where there has not in fact been violence against the person seeking legal aid, but where there might be.

      The Civil Legal Aid (Procedure) Regs 2012 provide that “(1) An application for civil legal services described in paragraph 12 of Part 1 of Schedule 1 to the Act must include evidence of the domestic violence or the risk of domestic violence.

      (2) For the purpose of paragraph (1), the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms—”, going on to list “(a)a relevant unspent conviction for a domestic violence offence;
      (b)a relevant police caution for a domestic violence offence given within the twenty four month period immediately preceding the date of the application for civil legal services;”
      .

      So far so good. But hidden at the end of reg 33 is this “(4) “Relevant” means that the evidence identifies—

      (a)A as being, or at risk of being, the victim of domestic violence unless the evidence—
      (i)is in a form described in paragraph (2)(a) to (c), and
      (ii)relates to a domestic violence offence which does not identify the victim; and
      (b)B as being—
      (i)for evidence described in paragraph (2)(a) to (c) convicted of, cautioned with or charged with the domestic violence offence;

      Of course not every conviction of A’s ex partner for a dv offence against a previous ex partner would be sufficient to establish a risk of domestic violence against A, but this appears to exclude it as a possibility at all, and to limit the scope of legal aid beyond that which LASPO envisaged. And the guidance goes further in suggesting that in cases falling under reg 33(2)(a) or (b) A must always have been the victim.

      AND going right back to the main body of LASPO, s9 provides that
      9General cases

      (1)Civil legal services are to be available to an individual under this Part if—
      (a)they are civil legal services described in Part 1 of Schedule 1, and
      (b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).
      (2)The Lord Chancellor may by order—
      (a)add services to Part 1 of Schedule 1, or
      (b)vary or omit services described in that Part,(whether by modifying that Part or Part 2, 3 or 4 of the Schedule).

      As I read that civil legal services MUST be provided where there is a risk of dv as well as actual dv (subject to means and merits etc), unless the LC has amended Sch 1 itself. Which he hasn’t by the making of regs under s9.

      JR of the regs / guidance anyone?? I won’t hold my breath.

      Anyway, thanks Steven for pointing out that difficulty which I had not spotted. How exactly are LiPs supposed to make their own applications for funding (as they are apparently expected to be able to do under s10) under this maze of primary and secondary legislation and guidance if even the lawyers are confused!! I will make a note at the top of the post to draw readers’ attention to this thread.

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