Deleting a criminal record; police data retention and what a DBS check can reveal

After the investigation: police records and disclosure

For many of our clients being suspected of a crime can have a damaging effect on their professional and personal life, even if they are not charged with an offence. There are a growing number of people who are employed in jobs which require an Enhanced DBS check to be completed. It can be quite distressing to learn that, despite having no convictions or police cautions, information about an investigation where you were a suspect might still be disclosed to prospective employers. Sometimes the disclosure might not concern you directly; for example it might concern your relationship or connection to another person who was suspected of a crime.

Below is an overview of 3 aspects of data retention and your rights.

1. Personal samples (Fingerprints and DNA samples /profiles)

The Protection of Freedoms Act 2012 provides the framework outlining when police are required to destroy personal samples taken from those who have been arrested. Until recently anyone who had been arrested was forced to provide such samples and they were retained for future use, even when investigations were discontinued for want of evidence.

The Act does not assist those aged 18 or over who are convicted of a recordable offence or if they accepted a caution at the police station for such an offence. For those aged under 18 at the time of their first conviction (or youth caution) the samples will be retained for 5 years (plus the length of any prison sentence if one was imposed).

For those not convicted the treatment of their samples depends on the level of seriousness of the alleged offence. The Act divides charges into ‘Minor’ and ‘Qualifying’ offences.

In cases involving only Minor offences, regardless of whether a person is charged or not, the samples will be destroyed.

Persons arrested for, but not charged with, Qualifying offences will have their samples destroyed unless the police apply to a Biometrics Commissioner to keep them. The arrested person would then have the right to make representations. If a person was charged with, but not convicted of, a Qualifying offence their samples will be retained automatically for 3 years. For both scenarios there is a further power to extend retention for 2 years by application to a District Judge and a person is entitled to make representations before a decision is made.

A useful summary of these powers can be found here.

2. Named on the Police National Computer

Irrespective of how your fingerprint or DNA profiles are treated if you were arrested your name will still appear on the Police National Computer which is an information database available to all police officers nationwide. While we are not able to explain how the information will be used, it is possible that it would affect how you are treated in the future. You can, however, apply to the police to have your record deleted. The National Police Chiefs’ Council has created a standardised process for this and have published some guidance on their criteria.

3. Local Information for Enhanced DBS checks

For certain work a prospective employer is entitled to apply to the Disclosure and Barring Service (previously the Criminal Records Bureau) for an Enhanced Check. This will be submitted to a local police force who will search their records for information which they consider is relevant to the application. This includes any information and is not restricted to allegations of misconduct by the person involved. Past examples have included the fact that a person lives with someone who has a criminal record. Before making the disclosure the police must provide the person with an opportunity to make representations and provide evidence where appropriate.

Information correct as of June 2016

Mark Troman
Powell Spencer & Partners