Take urgent action if you have an NFA - DNA Destruction: Progress

[felix]

As some of you will remember, I was falsely accused of violent rape in late 2010 and arrested, held locally for 9 hours, driven 90 miles in a police van to a London police station and held for a further 9 hours and given a tough interview, supported by a specialist solictor.

Seven months later, after numerous rebails, I was eventually given a "decision not to proceed" letter which I believe to be essentially equivalent to an NFA. If any one can tell me if this is correct I would love to know.

Last summer, after a four month wait following application by a youth organisation, I received a blank Enhanced CRB which did not mention my arrest or accusation.

I sought the help of my MP who had been marvellous in seeking to get my DNA and police records destroyed. I started the process in mid 2011, and handed it over to my MP before Christmas 2011 - after a number of false starts and attempts to put me off by various police entities. It has taken a full year to get a reply. We asked the Exceptional Cases Unit to review my case and they said it could take at least 7 months. It took a good bit longer.

In the last few days, my MP recieved the following letter [edits mine]:

"The case of Mr Felix has been subject to a review based on existing MPS records along with the evidence and presentations that have been provided.

After consideration, Commander XXXXXXX, (on behalf of the Commissioner), is of the opinion that this case is not eligible for early deletion based on the provisions of the Protection of Freedoms Act 2012, however, Mr Felix's case will qualify for automatic deletion when Commencement Orders for the Protection of Freedoms Act come into effect.

However, Commander XXXXXXX using his discretion has authorised deletion of the related data in advance of these Commencement Orders.

Based upon the decision made, Mr Felix's Police National Computer record and the record of his fingerprinting and DNA sampling relating to this incident will be deleted from our operational systems. His fingerprint and DNA samples will also be destroyed.

Furthermore, the associated Custody Suite Imaging System image will also be deleted.

The deletion/destruction process is likely to take a number of months to be fully completed; you will therefore be informed when the deletion/destruction of records, samples and image has taken place."

This is of course excellent news. I would encourage anyone with an NFA or equivalent to write to the "The Early Deletion Unit" at the police force concerned requesting that

"my Police National Computer record and the record of my fingerprinting and DNA sampling relating to this incident be deleted from your operational systems and for my fingerprint and DNA samples to be destroyed and for the associated Custody Suite Imaging System image to also be deleted.".

This will get you to the front of what will be a VERY long queue for this destruction.

This does not leave me any closer to understanding whether I have a chance of a "No Crime" ruling, but I will now turn to that problem. Can anyone give me any ideas how to proceed to this next stage? To whom should I write?

I shall write to the arresting force attaching the Met's letter asking them to commit to destruction of my local records.

Finally, where does this leave me with respect to US Visa application? If there is no PNC record, do I need to disclose my arrest or should i simply apply under the visa waiver scheme? They ask specifically if you have ever been arrested?

Many thanks - i hope this helps people and I would love feedback on my questions - or anything else. If I can be of more detail help on this matter, feel free to PM me if you want to keep any enquiry off the public forum.

Thank you again, girls and guys, for all your support so far.

Felix.

For reference, this the relevant section of the Act; I believe rape is a qualifying offence but stand to be corrected:

63FRetention of section 63D material: persons arrested for or charged with a qualifying offence.

(1)This section applies to section 63D material which— .
(a)relates to a person who is arrested for, or charged with, a qualifying offence but is not convicted of that offence, and .
(b)was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of the offence. .
(2)If the person has previously been convicted of a recordable offence which is not an excluded offence, or is so convicted before the material is required to be destroyed by virtue of this section, the material may be retained indefinitely. .
(3)Otherwise, material falling within subsection (4) or (5) may be retained until the end of the retention period specified in subsection (6). .
(4)Material falls within this subsection if it— .
(a)relates to a person who is charged with a qualifying offence but is not convicted of that offence, and .
(b)was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of the offence. .
(5)Material falls within this subsection if— .
(a)it relates to a person who is arrested for a qualifying offence but is not charged with that offence, .
(b)it was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of the offence, and .
(c)the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material. .
(6)The retention period is— .
(a)in the case of fingerprints, the period of 3 years beginning with the date on which the fingerprints were taken, and .
(b)in the case of a DNA profile, the period of 3 years beginning with the date on which the DNA sample from which the profile was derived was taken (or, if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken). .

[felix]

Specifically, i wonder why my case is not automatically eligible for early deletion. Does anyone know the criteria for automatic eligibility? Thx Felix

[felix]

Answered my own question. Met will do early deletion automatically if and only if unlawful arrest or mistaken identity. But they obviously have discretion - see letter received above. All the more reason to get on and apply quickly!!!

[Faith]

Thank you for this, it is extremely useful

[felix]

Just a bit more info - since one force arrested me on behalf of another I now have to apply to the arresting force for deletions / destructions AS WELL AS the Met. There is not one national linked-up approach. But obviously the letter from the Met should speed up the local response.

Thx Faith.

[just married]

Well done, felix, and many thanks for posting. We all share a ray of hope on account of your hard work. AIUI, the advocate has had considerable success in this area, and has experience and knowledge. I hope he won't mind me suggesting here, that studying his threads should provide more info.

Fantastic result by you.... please keep on posting inspirational news.

[myhome]

This is great news - well done for not letting things go...

[felix]

Please please - can anyone answer my questions (Original Post in BOLD)?

[Faith]

Felix, I will look into these questions for you and get back to you

[the advocate]

Felix, I appear to be slightly ahead of you in the cleaning up process!

As regards my experience of the cleaning up process, I posted a comment on Mr1974’s thread entitled “cleaning up” a couple of days ago – forgive me for quoting it here to save you looking it up !

I heard my name in cyberspace and wondered who could be talking about me!

I applied to have my dna, police records etc destroyed. AIUI this is different to a NC categorisation, as there is no automatic deletion of dna etc even if something is NC'd. However, I haven't bothered to go for the NC as the Met Police's policy is to to consider that "where there is NO doubt that NO crime has been committed, the dna etc MAY be destroyed. " (my paraphrasing and emphasis) So as far as I'm concerned, in my case no crime was committed, the Police have advised that, and I've got the bits of paper to prove it.

I've posted about how I did this, and the circumstances surrounding it. Have a look at that and get back to me with any questions.

On the question of the US visa, I wrote to the American embassy in London asking for guidance on this topic. I sent them a letter explaining the circumstances and background, and enclosed letters from the CPS, the met police exceptional case unit notifying me of my DNA etc. being deleted, and copies of the met police’s policy on deletion together with a report from Liberty stating just how few people get their DNA, etc. deleted.

Regrettably, they replied some two months later to say that I would still have to apply for a visa to visit the US, and bring along any relevant documentation as well as an ACPO certificate. (I did get one of these, and it is clear). I haven’t made an application because of a shortage of time and funds, but with the documentation which I have, I suspect there should be no difficulties in obtaining a visa, which can be then renewed.

It had crossed my mind to try to sue my accuser in the small claims court for the time and costs involved in having to make such an application, but again, whilst it would give me a great degree of satisfaction, I don’t really have the time or emotional energy to do this.

Sorry it’s not good news, but I hope that it helps.

[felix]

My question is - if there is no record on the PNC because it has been deleted - see the letter recieved - if I answered in the negative to the arrest question AND the US Embassy or immigration searched the PNC for an arrest record, they would not find one. So I can, if i am willing to tell a white lie, with impunity get a visa waiver?

I think this is morally justified because arrest in the USA is much closer to being charged. If you voluntarily attend a US police station, you don't get arrested until charge time.

I thinnk?

[whatsgoingon?]

Thanks for this useful information - I take it the DNA destruction applies if found NG ? I know my son will wnat to go th the States in the future. Can/should he get a NG 'certificate' from the court?

[the advocate]

Thanks for this useful information - I take it the DNA destruction applies if found NG ? I know my son will wnat to go th the States in the future. Can/should he get a NG 'certificate' from the court?

Hi what’sgoingon?,

Unfortunately I think that you’re mixing up a few things here.

Getting a visa for the USA is completely separate to the destruction of DNA etc.

On the one side, someone who is arrested for a crime of moral turpitude is not allowed to use the visa waiver programme to enter the US and this means that they must apply in advance through their local US embassy for a visa to travel to the states, which involves a visit to the embassy and interview with an immigration officer. This costs. If the person had not been arrested, they could simply fill in the necessary forms on the plane and get in to the USA without hassle.

Crimes of moral turpitude are quite a broad category, but would definitely include sexual assault and rape.

So if some one has been arrested for such a crime, no matter what happens to it afterwards, they are not entitled to use the visa waiver programme and should apply through the US embassy.

Felix makes the point that if the PNC records have been deleted, then what is to say that somebody has been arrested? I don’t know the answer to this, but take the view in my own case, since I asked the question, the US authorities will have a record that I was arrested at one point, no matter that all the records have been subsequently deleted. This is his call to take, and I have heard stories from pub lawyers that notwithstanding their previous arrests for assault or something similar, which have presumably remained on the PNC, they have used the visa waiver programme to get into the states without any problems. However, this is a matter for the individual to decide.

On the other side in relation to the destruction of DNA etc., The law is changing with the passing of the protection of freedoms act (POFA) this has made it easier to get one’s DNA etc. removed if one is not convicted of an offence. In summary, as Felix has pointed out, for the person who has been arrested for or charged with an offence such as rape, the fingerprints and DNA profile can be destroyed after three years have elapsed from them being taken. I do not believe, that the PNC records of arrest and charge would be deleted however.

For the period before the change in the law coming from the POFA, DNA records, fingerprints and arrest records could be destroyed if (and I paraphrase here) the police were certain that no offence was committed. This to me is 100% certainty, and if a person had been charged with an offence it follows logically that there cannot be 100 per cent certainty that an offence was not committed. So under the pre POFA situation, no destruction could occur if someone was charged, even though they were found not guilty at trial.

Because of the horrendous complexities of the legislation itself, I have attempted to give my summary of what it says. Specific circumstances, especially with dates, may need to be applied to the legislation to find out exactly what to do.

I appreciate that this may not be what you want to hear, what’s goingon, but there is no reason why your son cannot visited the USA in the future. Simply, he has to to apply for a visa at the American embassy with the unfortunate cost in time and money, but if he takes sufficient paper work to show that he was found not guilty, there is no reason to assume that he will not get the visa.

[just married]

thank you

Thank you, the advocate, for your clearly written, concise, and educated posts. We all stand to benefit from your knowledge.

JM

[whatsgoingon?]

Thanks alot for this valuable information The Advocate, it does clear quite a few things up for me. When found NG do you get a letter or something to say so or do you have to apply to the court for a transcript?