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

What’s in a name?

Many defence lawyers will recognise some of these names: Lindiwe Mutede, Liliane Makuwa, Alica Chiwanga, Wendy Chengetayi, Margaret Boateng, Rosiene Carneiro, Paris Osato, Rita Nenartoniene, Jacinta Kinbunyi, Valerie Ovieriakhi, Ruth Abumhere, Cynthia Acheampong. Ten years of cases reviewed in the Court of Appeal (2005-2015)[1], a line of Jurisprudence concerning cases of forged and false identity documents and the necessity for immediate custody.

Women, Prison and Race?

The over representation of women and men who are not white in the Criminal Justice System (CJS) has a substantial history.[2] Some general issues are well documented [3].During the year it is estimated 18,000 children are separated from their mothers who enter custody. The average cost of prison per person is £56,415 per annum; 9,051 women entered prison in 2014; 58% serve 6 months or less. In 2011 black female prisoners made up 26.4% and black British woman 11.6% but only 2% of the overall population. Significantly 81% of all women prisoners have committed non-violent offences. It is an expensive system and rehabilitation for “persistent” offenders is ineffective.

Multi-factorial explanations of “offending” behaviour include poor education, mental and other health issues, drug use, employment and educational outcomes, a history of local authority “care”, housing, low income and class. There is eloquent work on passive and active social exclusion particularly around “identity” and gang culture. Gus John[4]articulates that how people relate to themselves and to the world some “200 years after the abolition of slavery..(is)..totally bound up with our colonial past. “

Sometimes there are riots or a murder that give rise to public enquiries and the conclusion that there is a pervasive Institutional Racism within policing and the CJS. Lord Scarman (1981) on the problems underlying the Brixton riots summarised by Ruth Chigwada-Bailey as “intense social deprivation, a history of unlawful policing, racially prejudiced police conduct”[5] and MacPherson (1999) following the murder of Stephen Lawrence, “unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage ethnic minority people”[6]. Meanwhile the population of Judges in the CJS and the overwhelming majority of its personnel remain also overwhelmingly white, male and frequently privileged (private education and family wealth).

There is also that context highlighted by Gus John, a devastating history of a colonialism that depended on military repression to organise slavery, indentured labour and the plunder of raw materials.[7] The political repercussions of that vast tale of repression and arbitrary location of peoples and boundaries still frames so many lives. The repercussions of Colonialism and individual tales within the CJS are intimately related. A quick survey of the countries of origin of Lindiwe, Liliane, Alice, Wendy and the others reveals, Zimbabwe, Nigeria, Brazil, the Democratic Republic of the Congo and Ghana. The colonial inheritance within the UK and the CJS is a lived experience further mediated by Institutional Racism and manifest in social issues, access to housing, health, education, employment and the struggle to be legitimate as a migrant.

The Court of Appeal

And so to the Jurisprudence. Our authorities begin with David Kolawole (2004) who appealed a 16 month sentence of imprisonment for possession of 2 forged passports. The refusal of his Appeal set a new benchmark for custody. The Court of Appeal quickly established a demarcation between passports used to gain entry (with the spectre of terrorism prayed in aid) and the conduct of working mothers using passports and other forged documents to gain employment and open bank accounts (6 months in custody became the norm).

The rationale is that a false National Insurance document used to gain work (the latter itself a pecuniary benefit obtained by fraud), by defendants without immigration status, “undermines immigration control”, the presence of such persons “undermines the good order of society”, “constitutes a threat”, is “detrimental”, and “ordinarily” the sentence is “Immediate custody”.

One answer to the question why are black women over represented in custody is this particular line of authority. Is it rational or justifiable?

These Court of Appeal cases are overwhelmingly black women with children and their most common occupation carers or cleaners. Hard low paid work. The pathways of how these broken threads of lives percolate through post-colonial history to become present in the imitation Gothic of the Royal Courts of Justice is hidden both by its complexity and a collective disregard.

The costs of effectively 3 month prison sentences (released after half sentence served) are absurd. The “deterrence” of such sentences is unprovable and highly unlikely. This is because the immediate choices facing women in very difficult moments, to use a document to gain employment or support a family or what? What are the choices, Prostitution, surrendering children to care, homelessness, returning to even worse outcomes?

What is needed here is a re-evaluation

No one knows how many woman are being routinely consigned to prison because of this line of case law. Whatever happened to Lord Woolf’s stricture, prison must be a last resort?

The welfare of children is disregarded in these authorities despite the enormous amount of historical studies that separation from parents and in particular mothers has a devastating effect. The welfare of children so paramount in the family courts is disregarded in these cases. See by contrast a more “balanced” approach in R v. Petherick[8] . See also the case of R v. Welsh and others[9] where it is made clear that the positon of children in a family were of little significance “at the most serious levels of criminality” when sentences of 20 years upwards were under consideration. Hardly the position in this category of document offending.

There are obvious alternatives. Community sentences, even suspended sentences at worst, and across the board a substantial investment in women’s centres to support[10], rehabilitate and help reframe the lives of women who have come into contact with the CJS.

The rationale that choices made by marginalised women “undermine good order”, is a chimera. It is a reflex that bears no relationship to the reality of the defendants but is rather a reaction to the politics surrounding the migration of poor working class people.

Reality, proportionality and even economic sense should lead to very different outcomes and the overrepresentation of black women in the CJS in this instance at least ameliorated.

Greg Powell & Sinead Zaman
Powell Spencer and Partners Solicitors