Do people have the right to check their partner’s history for abuse?

Labour MP Rosianne Cutajar has proposed introducing a system where police could disclose information to people about their partner’s domestic abuse history.

This was in reaction to figures table in parliament which showed that there had been 538 domestic violence reports filed in the four months of 2022. Furthermore, in 2021, 1,741 cases of domestic violence had been reported to the police.

Cutajar proposed introducing a system similar to the Domestic Violence Disclosure Scheme (DVDS) in the UK, also known as “Clare’s Law” which enables police to disclose normally confidential information about a person's criminal history to someone deemed to be at risk of future abuse.

The scheme was introduced following the murder of 36-year-old Clare Wood, murdered by her ex-boyfriend in 2009. Wood was strangled and set on fire at her home in Salford, Greater Manchester, in February 2009 by George Appleton, who had a record of violence against women.

Subsequently, Clare’s Law was rolled out in England and Wales in 2014.

Lawyers Robert Thake (left) and Desiree Attard

MaltaToday spoke to two lawyers, Desiree Attard and Robert Thake, on whether a similar system should be introduced in Malta.

Attard said that Clare’s Law is designed to protect very close persons, such as spouses, partners and people who are dating – she said that the scope of the DVDS is much narrower than, for example, the sex offender’s registry, where even employers are able to look at it.

“Yes, I am all for it. First off, the scope of the law is to empower people to make informed decisions. It’s not about pushing people to leave their partner; it’s about knowing what you’re getting yourself into,” Attard said.

However, she added that it does not mean the person would be at fault if they stayed. But “at least if you have those red flags that the person is showing, you can go and confirm otherwise. So at least you’d be fully informed of the person’s past.”

Thake also agreed with implementing something similar to the DVDS; however, he cautioned that it must be heavily regulated. “You need to strike a balance between those individuals who are being asked upon and those who are asking for the information. It’s all about the nuances and the regulation. It can be done well, and in that case, it will be a good law to pass; however, if it’s done badly, it can do more harm than good.”

However, Thake warned that there was a possibility that it could create a culture of victim blaming – “if someone knows about a person’s violent conduct because it’s disclosed and they still go out with this person believing he/she can change, will it create a culture of blaming the victim if it goes wrong?”

But what about a person’s right to privacy?

Thake says that right is not something that is absolute. “So, it can be trumped… When you’re talking about domestic violence, that is something more pressing. I don’t think privacy is something that should interfere with this happening provided that the manner in which it is regulated is watertight.”

Attard agrees: “Data protection legislation, not just ours but even at an EU level, does have exemptions for these sorts of things. Not specifically domestic violence, but for the prevention of crime, and in my opinion, that it would fall under that category,” she explained.

Attard cautioned that a few things had to be balanced if the DVDS or something similar was going to be applied in Malta.

“The safety of the person who is asking and the right to privacy of asked upon. These things have to be balanced. The way the UK did it is by making sure every decision the information is disclosed on a case-by-case basis; depending on the type of crime committed and the nature of the relationship, they have a number of checks and balances. This is while keeping in mind data protection and human rights law.”

She said that disclosure needed to be proportionate and legitimate. “If I go asking, they can’t tell me ‘yes, he or she did this, and this and they did it to their mother, and then their partner’. They need to give you the basics, such as this person had a domestic violence conviction in 2014, and that’s it.

“In my opinion, that is very fair. Because you’re not disclosing too much information, but you are informing the person,” Attard said.

Thake also agrees that there should be a time limit introduced, but that it needs to go further than that. “If there is someone convicted of domestic violence – it can be financial, it could be psychological, and so forth. I’ve come across individuals who have been found guilty of psychological violence and it shouldn’t be given the same weight as someone who is a habitual physical abuser,” he argued.

Thake suggested that once there was a guilty conviction, the judge or magistrate should then make the decision whether the name permits being disclosed or not.

“There also needs to be checks and balances for when someone ultimately asks for it. There should be a second level at the stage when someone asks for this information. The request would be sent to a team of experts, and they would in that space in time decide if it should be disclosed.”

Attard also agreed that a prescription should be put into place. “I would prescribe it. So that makes it proportionate and also just for the person who is being asked on. This is based on the concept that we believe in second chances; I would not disclose a very ancient conviction,” she said.

Why stop at just domestic violence?

Attard says that the most urgent crime a person needs to know about were domestic violence related.

“If you’re in a relationship, hopefully, you are comfortable enough that the other person would tell you their past. But keep in mind that what we’re trying to do here is not expose a person but protect another person.”

Thake said that while he understands the sentiment, there is also logic to it. “There doesn’t need to be an all or nothing approach. Having everything being disclosed might be taking it too far. There are varying extents to it.”