DNA etc Retention and PNC entry for NFA - UPDATE

[felix]

Well, here is an update. This turns out to be a procedural minefield. However, this may help folks in a similar situation.

To rehearse my situation. I was arrested for violent rape of an adult. 5 months later the police / CPS made a "decision not to proceed", with a complete absence of any explanation.

My wife and I are piss poor and can't afford a solicitor and my legal aid solicitor is not interested in helping - I don't blame them.

We turned to my MP for help.

The ACPO Guidance classifies my alleged offence as an Appendix A offence. This means they can keep the PNC (Police National Computer) record until my 100th birthday but have to "step down" the entry when the "decision not to proceed" was announced.

A "decision not to proceed" is we gather mildly stronger than an NFA (no further action) but not as strong as an NC (no crime). In fact we are told that the prevailing policy of the force concerned is NEVER to give an NC on alleged SOA (Sexual Offence Act 2004) offence.

The "step down" means that other agencies who have access to the PNC cannot access my records now (since the "decision not to proceed").

Thus a CRB check would produce a null entry.

An Enhanced CRB check is different in that it passes across the desk of the Chief Constable or his nominated senior deputy who accesses the full PNC including stepped down entries such as mine, and decides on his own initiative (I cannot find any guidelines - any help here wuold be much appreciated) whether to include reference to my stepped down PNC entry in the Enhanced CRB report.

We therefore wish to have the PNC entry removed in its entirety. Incidently, if we do get it removed, the advice we have is that, based on various precedents and guidelines, my DNA sample, fingerprints and photo would have to be destroyed as well at the same time.

Sooo now we have had to look at the grounds for getting the PNC entry removed compeletly. This we are told is the best one to try for - rather than attacking DNA or fingerprint retention - because most police officers do not realise how they are linked together . This seems mad, but is true.

OK. I will post next the basis for our our approach.

Sorry if this is boring - just possibly it might help someone, or satisfy the sadly curious!!!

[RFLH]

Thank you for posting that - its really useful. Hopefully it willanswer some questions that others are wondering about.

[felix]

The new proposed guidelines forming part of an new Act (the Protection of Freedoms Bill) is currently somewhere in Parliament and it says:

Adult or child arrested but not charged with a serious sexual or violent offence (i.e. me):
Retention for three years but only if a new Commissioner agrees and if retention is provided for by (as yet unpublished) guidance.

There is also provision currently for destruction of DNA under exceptional cases - examples are given in the guidelines:

"The guidance gives two examples of exceptional circumstances:-
• where the original arrest or sampling was found to be unlawful.
• where it turns out that no offence was committed by anyone (for example if someone dies and murder is suspected but it later turns out that the death was from natural
causes)"

However, these are not the only examples. Liberty suggest the following additiuonal reasons:

o were you mistakenly identified?
o did it emerge that in fact no crime had taken place?
o was someone else arrested/convicted of the offence?
o did the police officers interviewing you say that they were satisfied you
were innocent or something similar?
o was the offence a minor one?
o was DNA at all relevant to the offence for which you were arrested?
o were you in fact the victim of a crime, rather than the perpetrator?

Now the ones of potential significance for a number of us may be:
o did it emerge that in fact no crime had taken place?
o did the police officers interviewing you say that they were satisfied you
were innocent or something similar?
o was DNA at all relevant to the offence for which you were arrested?

We are going to have problems, given that most Forces won't NC any SOA offence, with the first one. And it is unlikely in an SOA case that two will have occurred.

But the third onemight have traction, in my case or in others:

This is because:
the accuser possibly did not go to the police quickly enough for DNA to be relevant,
or there was never a debate that sexual activity took place as alleged - the only debate was about its consensuality or its nature.

[felix]

I can't say much more without revealing to much detail but one other thing has been thrown up. I had biometric data (photography only I think from memory) taken by the first force to arrest me before I was shiped off to a second froce for interview. It is clear that both forces have to do the same thing with regard to PNC - and I currently have two stepped down entries, one for each force.

I hope this helps someone......

[felix]

Thanks RFLH - this is such a mess, but I think people need to consider taking action - it is an outrage that we (the unwashed falsely accused) are being treated as common criminals. Whether the CPS gave up at the first hurdle, or whether the CPS offered no evidence eventually, or whether 12 men and true decided not gulity - in all cases we are deemed innocent - so why the stigma and PNC recording for the rest of our lives???

[Rights Fighter]

The new proposed guidelines forming part of an new Act (the Protection of Freedoms Bill) is currently somewhere in Parliament and it says:

Adult or child arrested but not charged with a serious sexual or violent offence (i.e. me):
Retention for three years but only if a new Commissioner agrees and if retention is provided for by (as yet unpublished) guidance.

There is also provision currently for destruction of DNA under exceptional cases - examples are given in the guidelines:

"The guidance gives two examples of exceptional circumstances:-
• where the original arrest or sampling was found to be unlawful.
• where it turns out that no offence was committed by anyone (for example if someone dies and murder is suspected but it later turns out that the death was from natural
causes)"

However, these are not the only examples. Liberty suggest the following additiuonal reasons:

o were you mistakenly identified?
o did it emerge that in fact no crime had taken place?
o was someone else arrested/convicted of the offence?
o did the police officers interviewing you say that they were satisfied you
were innocent or something similar?
o was the offence a minor one?
o was DNA at all relevant to the offence for which you were arrested?
o were you in fact the victim of a crime, rather than the perpetrator?

Now the ones of potential significance for a number of us may be:
o did it emerge that in fact no crime had taken place?
o did the police officers interviewing you say that they were satisfied you
were innocent or something similar?
o was DNA at all relevant to the offence for which you were arrested?

We are going to have problems, given that most Forces won't NC any SOA offence, with the first one. And it is unlikely in an SOA case that two will have occurred.

But the third onemight have traction, in my case or in others:

This is because:
the accuser possibly did not go to the police quickly enough for DNA to be relevant,
or there was never a debate that sexual activity took place as alleged - the only debate was about its consensuality or its nature.

Any chance of a link to this, please?

[felix]

The Current Guidelines etc:

http://webarchive.nationalarchives.g...df?view=Binary

The Bill:

http://publicreadingstage.cabinetoff...d-dna-profiles

Liberty:

http://www.yourrights.org.uk/yourrig...nd-photos.html

http://www.yourrights.org.uk/pdfs/dn...april-2011.pdf

http://www.yourrights.org.uk/pdfs/dn...april-2011.pdf

Especially the draft letter in the final URL

Hope this helps. Any more questions, please post them!

[Rights Fighter]

Which is the link to the copy and paste you posted up?

[Casehardened]

Thanks Felix for all this research and it's very useful information to have.

I did smile at the following snippet:

This means they can keep the PNC (Police National Computer) record until my 100th birthday

I suppose the thinking is that if we men survive this long, by then we ought be safely tucked up in an old folks home and unable to pose any threat to the girls due to the zimmer frames getting in the way

[felix]

Sorry but it was a bit of a hybrid from all of them. The key parts as far as I was concerned was Liberty's draft letter to the Chief Constable in the third of the Urls under Liberty.

I now have to educate my MP as he has received a letter of the form that the guidelines recommend which seem effectively to discourage and slow the process down. So I will be drafting a letter for him to send substantially of the form Liberty recommend as the response.

Would love to hear from anyone who has tried this......