In today’s inter-connected world, it will come as no surprise that an individual’s criminal record can be requested by any number of bodies; prospective employers, volunteer organisations working with children and international border controls, to name a few.
The Police National Computer (“PNC”) is the central system which holds information on anyone convicted, cautioned, reprimanded, warned or even arrested for any recordable offence. However, what many people will not know is that a local record is also created by the relevant police force for anyone who has been arrested and processed through custody. The Police National Database (“PND”) collates the information contained on the local records held by various police stations. In essence it is a ‘soft’ intelligence database, deemed to be an invaluable tool in preventing serious organised crime.
The records held on the PNC effectively have no expiry date, thus they are ordinarily kept until the individual in question reaches the age of 100.
It is the PNC and PND that is most commonly queried during a “Disclosure Barring Service Check” (“DBS”), previously known as a CRB check. Anyone who has been investigated (following arrest) for a criminal offence, regardless of whether or not they were subsequently charged with such an offence, may have information held on their local police records which could be divulged as part of a DBS check. You can get copies of what information the police hold about you by making a police subject access request under the provisions of the Data Protection Act 1998.
Many individuals may not be aware of the information that is held by the police and that is frequently divulged to third parties such as employers, even in circumstances upon which an investigation did not subsequently result in a formal charge and/or a conviction.
This article provides an overview in respect of the details held by the police and that could be disclosed on such DBS checks (standard and enhanced), how to challenge the retention and disclosure of information that might be provided as part of a DBS check and the process by which individuals can make application for deletion of their records (and biometric information) from the Police National Computer Records.
What information can the police disclose in a DBS check?
There are two main types of DBS checks. “Standard” DBS checks disclose all spent convictions (those no longer required to be disclosed under The Rehabilitation of Offenders Act 1974), unspent convictions, cautions, reprimands and final warnings. “Enhanced” checks disclose, in addition, any information held by the relevant chief officer which he ‘reasonably believes to be relevant’ and which ought to be disclosed for the purpose of the check.
The disclosure of information on allegations for which there was no conviction is a controversial area of law. There have been several human rights law challenges in this area due to the delicate balance that must be struck between the state’s responsibility to protect children and vulnerable adults and the individual’s right to a private life. The courts have established that the police should consider the relevance of the information to the position applied for and its reliability. The police are obliged to consider, in light of public interest and the potential impact on the applicant, whether it is proportionate to disclose the information.
In certain circumstances, such as where the information is historical or where the applicant has not had the opportunity to respond fully to an allegation, the applicant may be entitled to make representations to the police against disclosure. In the event that these representations do not succeed, the applicant can contact the relevant police force and explain to them why certain information should not be disclosed, on the basis that the information is either wrong or irrelevant. If the police decide not to remove or amend the information disclosed then the individual can appeal to the ‘Individual Monitor’ who works independently from the DBS and will review the information disclosed by the police. Reporting of a mistake or a challenge to the relevance of the information disclosed must be made within three months of the DBS check certificate issue date.
Anyone who is unsuccessful with the process detailed above and still believes their information should be amended can seek a Judicial Review.
Record Deletion Process
Individuals seeking the deletion of non-court disposals or event history from the Police National Computer must complete a formal application confirming their eligibility and specifying the grounds relied upon for having the record deleted. There is no set criteria for the deletion of records, it is for the Chief Officer to consider the merits of each application and to exercise professional judgement, and an appropriate degree of discretion based on the information available.
The National Police Chief Council has issued guidance on the Record Deletion Process. The strongest basis for a record deletion would be that the individual is no longer a suspect for the offence for which they were arrested. Guidance for the grounds on which record deletion should be considered are contained within Annex A of the Guidance, and are namely:
- No Crime
- Malicious or false allegation
- Proven alibi
- Incorrect disposal
- Suspect status not clear at the time
- Judicial recommendation
- Another person convicted of that particular crime
- Public interest
It should be noted that the guidance confirms that simply because there is insufficient evidence to charge or convict, it does not necessarily mean the individual was eliminated as a suspect. The Chief Officer in deciding whether to exercise his discretion to delete the records must establish positive evidence to support their decision to delete the individual’s records. This imposes a high threshold for the circumstances in which records can be deleted. The applicant will be informed within 28 days of the date of receipt of the application confirming their decision.
In addition, the guidance provides that, in certain limited situations, an individual may also apply to a Chief Officer to have their biometric information, namely their fingerprints or DNA, deleted before the expiration of a relevant retention period. The early deletion of an individual’s biometric information from national police databases may be possible if there is evidence to support the fact that the individual has no previous convictions and their biometric information is held due to a Penalty Notice for Disorder or as a result of being arrested and charged, but not convicted, with a serious offence.
If you are have any queries regarding any of the issues mentioned above, please do not hesitate to contact a member of our Regulatory & Defence Team on 01603 610911 who will be more than happy to assist you.
Please note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.