The nature of spent convictions and the common law basis of the Domestic Violence Disclosure Scheme: limiting the effectiveness of Clare's Law?

The current Home Office guidance on the operation of the Domestic Violence Disclosure Scheme, known as 'Clare's Law', has the illogical and (in some ways) unfair effect of preventing the disclosureof spentconvictions or cautions, and any information relating to those offences - but not the disclosure of allegations, arrests or charges which did not lead to a conviction (or caution) at any point. This has the result of limiting the real effectiveness of the Domestic Violence Disclosure Scheme, because the criminal convictions of some individuals cannot be shared with a vulnerable member of the public who might be seeking to learn of them, and also creates an imbalance in the fairness of its operation, since those with 'criminality information' categorised by only a lower level of legal certainty or standard of proof, of sorts, might see their right to respect for private and family life more easily and readily infringed. This piece seeks to outline some reasons as to why the doctrinal assumptions made about the inability of disclosure of spent convictions under the Scheme may be said to be flawed. The case is made, in this way, for placing the Scheme on a statutory footing to resolve this illogicality resulting from a particular doctrinal ambiguity which has limited the effectiveness of the Scheme in its first year of national operation.