In my experience as a solicitor who specialises in actions against the police, when an individual has been wrongly arrested, their priority is not necessarily financial compensation. Instead, they often seek:
- an acceptance of wrongdoing;
- an apology; and
- deletion of records and data from national police systems obtained as a result of the arrest.
Data held in police systems can include the record of arrest, fingerprints, DNA sample and custody photograph.
This issue is particularly important for individuals who have no prior arrest history and who consider such retention of personal records with grave suspicion.
How Records Are Deleted from Police Systems
In certain cases subject to the Police and Criminal Evidence Act (1984) the individual’s DNA profile and fingerprint record should be automatically deleted by reason of the Protection of Freedoms Act 2012 (the “PoFA”). See below:
1 Destruction of fingerprints and DNA profiles
After section 63C of the Police and Criminal Evidence Act 1984 insert—
“63DDestruction of fingerprints and DNA profiles
(1)This section applies to—
(i)taken from a person under any power conferred by this Part of this Act, or
(ii)taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police, and
(b)a DNA profile derived from a DNA sample taken as mentioned in paragraph (a)(i) or (ii).
(2)Fingerprints and DNA profiles to which this section applies (“section 63D material”) must be destroyed if it appears to the responsible chief officer of police that—
(a)the taking of the fingerprint or, in the case of a DNA profile, the taking of the sample from which the DNA profile was derived, was unlawful, or
(b)the fingerprint was taken, or, in the case of a DNA profile, was derived from a sample taken, from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity.
(3)In any other case, section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 63O (including those sections as applied by section 63P).
(4)Section 63D material which ceases to be retained under a power mentioned in subsection (3) may continue to be retained under any other such power which applies to it.
(5)Nothing in this section prevents a speculative search, in relation to section 63D material, from being carried out within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable.”
It is important to note the exceptions at points (3)-(5), and be aware that the PoFA does not deal with custody photographs (stored on the Custody Suite Imaging System, “CSIS”) and the associated police national computer (“PNC”) record and/or entry.
As a result, unless an application is made under the Record Deletion Process (“RDP”), even if DNA and fingerprints are destroyed, the PNC records and custody photograph will be retained by the police until the subject is deemed to have reached 100 years of age.
How to Seek Deletion of Records from National Police Systems
Irrespective of any complaint or civil claim pursued, the individual can apply for the destruction of all of his/ her personal data under the Record Deletion Process. Click on this link for guidance and the application form issued by the Association of Chief Police Officers Criminal Records Office (“ACRO”).
Applications can be submitted to ACRO or the individual police force concerned. The applicant must state the grounds for having their records deleted and provide proof of identity/current address. The guidance suggests that the evidence and grounds for deleting records from national police systems will be then be examined by a chief officer. If agreed, the expectation is that any records held will be deleted.
There are no set criteria for the deletion of records. Chief officers must exercise professional judgement based on the information available.
The following are some examples of circumstances in which deletion will be considered:
- Malicious/false allegation. When a case against an individual has been withdrawn at any stage, and there is corroborative evidence that the case was based on a malicious or false allegation.
- Proven alibi. Where there is corroborative evidence that the individual has a proven alibi and as a result she/he is eliminated from the enquiry after being arrested.
- Incorrect disposal. Where disposal options are found to have been administered incorrectly, and under the correct disposal there would be no power to retain the DNA profile. In such circumstances, consideration should be given to deleting records.
- Suspect status not clear at the time of arrest. Where an individual is arrested at the outset of enquiry, the distinction between the offender, victim and witness is not clear, and the individual is subsequently eliminated as a suspect.
- Judicial recommendation. If, in the course of court proceedings, a magistrate or judge makes a recommendation that an individual’s records should be deleted.
- No crime. Where it is established that a recordable crime has not been committed. For example, a sudden death when individual is arrested at the scene but after post-mortem it is determined that the deceased person died of natural causes and not homicide.
Metropolitan Police Record Deletion Process
For deletion of records held by the country’s largest force, the Metropolitan Police (“the Met”), applications must be submitted to the Early Deletion Unit (“EDU”).
It is not a straightforward process, as my client, Mr M, would confirm.
Mr M (name withheld to preserve anonymity) was arrested on 31 July 2012.
A month earlier an employee of Metropolitan Police was driving his car when he saw two individuals arguing in a car upfront.
The female passenger allegedly slapped the male driver (Mr M) and in response he allegedly punched her in the face.
At the next set of traffic lights, the Met employee parked in front of the car and got out to speak to the couple. He allegedly noted that the female, Mr M’s girlfriend, had injuries to her face and obtained their details.
Several days later the Met employee submitted a report about the incident.
Given the priority that domestic abuse is given, the case was investigated.
Unfortunately, there was a significant delay because:
- the police failed to get to grips with the location of the incident; and
- there were a large number of people at the Met passing the matter around.
During the investigation, Mr M’s girlfriend was contacted on a number of occasions.
She denied that she had been assaulted and further, refused to lodge a formal complaint. Notwithstanding this, a decision was made to invite Mr M to attend a police station for voluntary interview a month after the incident.
Upon arrival, despite attending as a volunteer, Mr M was summarily arrested.
He was detained in custody for 3 1/2 hours during which time he was interviewed.
Mr M was then bailed to attend the police station on 4 September 2012 where he was again detained in custody for a further 4 hours during which time he was interviewed again.
Ultimately, he was charged and bailed to attend court.
Mr M pleaded not guilty and eventually the Crown Prosecution Service discontinued proceedings on the basis of insufficient evidence.
Mr M searched the internet for guidance and, given my track record of success in this area, contacted me for legal help.
My client’s priority, as a man of exemplary character, was the destruction of all personal data held. He also sought compensation for his false arrest, detention, and the stress of court proceedings.
Mr M could have lodged an Application to the EDU shortly after the Crown Prosecution Service decided to discontinue proceedings. On my advice, he delayed, because, I advised, a complaint about the police’s conduct should come first.
Complaint Against the Metropolitan Police
After discussing the case, I explained to Mr M that he did not have grounds to complain with the Met’s decision to investigate.
But what was objectionable was:
- the delay; and
- inviting Mr M to attend a police station for a voluntary interview followed by an immediate decision to arrest at that time, which was said to be necessary so as “to allow a prompt and effective investigation.”
I submitted a complaint against the Metropolitan Police on Mr M’s behalf and agreed to act in his civil action against the police for compensation.
As is often the case, the complaint was dismissed by the Metropolitan Police.
On my client’s behalf I appealed to the Independent Police Complaints Commission (“IPCC”).
Following review, Mr M’s complaint was upheld by the IPCC.
This mattered because the legality of arrest was initially considered by the Met’s “Professional Standards Champion”. As they initially dismissed my client’s complaint I am sure that the application for deletion of records would also have been rejected.
Civil Claim Supporting Deletion of Records
Despite the IPCC’s positive findings its decision was not binding upon the police.
As a result, when I submitted Mr M’s compensation claim to the police citing wrongful arrest, the Metropolitan Police denied liability.
In the circumstances, I had no alternative but to issue court proceedings to seek justice for my client.
Although liability was disputed, solicitors on behalf of the Met offered to settle his claim out of court. This confirmed my view that Mr M’s claim was entirely justified, despite the Met’s formal denial.
After extensive negotiations, Mr M settled his compensation claim for £6500 plus legal costs.
Despite this, in previous negotiations with the Met, it has been made clear that destruction of personal data has no relevance to any civil claim and that a separate application must be lodged to the EDU.
I used the supportive decision of the IPCC and offer of settlement to persuade the chief officer to agree to the deletion of my client’s records.
Delay in Deletion of Records
You would think that it would be a relatively quick and easy task to delete records. After all, they were easy enough to create when Mr M was arrested. Not so.
My application to delete his records was acknowledged in mid-January 2015. As is standard, the (laughably misnamed) Early Deletion Unit advised that it would take “up to 12 months” for a decision about deletion to be reached.
Notwithstanding several reminders, no decision was made by mid-January 2016. The EDU advised that “there is no statutory time limit for processing these requests and they may take up to 12 months or longer, due to the volume of similar applications currently being dealt with by the MPS”.
See redacted letter below:
You may wonder how many requests are processed at the EDU. In response to a recent Freedom of Information Act request, the Metropolitan Police said that they were unable to provide this information because, remarkably, “This information is not recorded in a searchable electronic format”.
And yet, in another Freedom of Information Act request, the Met confirmed that:
“As of the 18th September there were 164 requests awaiting decision by the
Commander. These are regularly reviewed by the Commander and dealt with on
a priority basis. The outstanding requests awaiting decision are not
attributable to any staffing issues.”
In any event, I am pleased to confirm that the EDU did eventually process Mr M’s application. In mid-March 2016, the EDU ironically advised that the case was “eligible for early deletion”.
And you might think that now that a decision has been made, the offensive data would be deleted forthwith. But no, the EDU advise that “the deletion process may take several months to complete”.
See redacted letter below:
Despite this, my client is extremely pleased. His arrest has been recognised by an independent body as unlawful, he has received financial compensation for his unlawful detention, but most importantly, ALL personal data obtained as a result of his arrest has been (or will be) destroyed.
His case proves that deletion of records from national police systems is possible, but it takes perseverance and knowledge of the system.
Contact me for help with your actions against the police using the online form below or at www.dpp-law.com.