Can I get my police records deleted?

What are the powers of the police to take and retain samples?

The police are able to take fingerprints, DNA and photographs of any person without their consent who is detained at a police station, having been arrested for, or charged with a 'recordable offence' (sections 61-63 of the Police and Criminal Evidence 1984 (PACE)). Most criminal offences are recordable offences. Once the samples have been taken the police are able to check those samples against other samples which have been obtained in the course of police investigations and stored on the police national database. However, samples can only be retained until the end of the investigation unless the individual is charged with a criminal offence.

In what situations are the police obliged to destroy my samples?

Any fingerprints or DNA taken unlawfully or as a result of an unlawful arrest or mistaken identity must be destroyed (s63D PACE 1984) unless that individual remains as a suspect under investigation for the offence (s63E) or is then subsequently charged with the offence (s63F) or a different offence (s63P) or convicted (inside or outside the UK) (s63I, s63IA). Likewise, if he has previously been convicted of a recordable offence (s63H). It should be noted that the police are also able to make an application to the Commissioner for the Retention and Use of Biometric Material for retention of the material. In some cases, the period of time for the retention of such material is restricted by age of the suspect and type of offence.

Samples for persons not convicted must be destroyed before the end of three years (provided they have no qualifying convictions or other ongoing proceedings or investigation) (s63F).

If the police are obliged to destroy my samples will they also delete data on the Police National Computer?

 No, you would need to make a separate application via the ACPO Criminal Records Office (ACRO) for data on the Police National Computer (PNC) to be destroyed (see below).

My samples were taken by the police – can I ask for them to be destroyed?

Aside from the examples given above where the police themselves are obliged to destroy samples, it is possible for person to request that their samples (and data on the PNC) are destroyed. This request can be made through the ACRO criminal records office which will pass it on to the relevant Chief of Police responsible for exercising his discretion. Such applications relate not only to samples (biometric material) but also to data held in the Police National Computer.

The law in this area is complex and hence the following is a simple overview.  If you require specific advice you should contact us. It should be noted that different conditions apply according to how an offence is classified:

• A ’Qualifying Offence’ is an offence listed in section 65A of PACE of 1984.
• A ‘Recordable Offence’ is an offence for which the police are required to keep a record (which includes all Qualifying Offences).
• A ‘Minor Offence’ is a recordable offence which is not a Qualifying Offence.
• If you are over 18 and have been convicted of a Recordable Offence the police are entitled to retain your biometric information and data for life. This includes convictions disposed of by way of absolute or conditional discharge.
• If you receive a caution you are entitled to ask for records to be deleted but only on the basis that the caution was an incorrect disposal.
• If you receive a Penalty Notice for Disorder you are entitled to ask for records to be deleted after two years.
• If you are acquitted of a qualifying offence your biometric information and data will be deleted after the expiry of 3 years. However, you may ask for it to be deleted before three years on the basis that no crime was committed or you were wrongly identified as the culprit.
• If you are arrested but not charged with a Qualifying Offence the police are obliged to destroy your biometric data at the conclusion of the investigation (but usually only after 6 months). You can also request that data from the PNC is deleted.
• If you are acquitted of a Minor Offence then the police are obliged to destroy your biometric information. You can also request that data from the PNC Is deleted.
• If your biometric information was taken unlawfully or as a result of mistaken identity the police are obliged to destroy them (see above).

How do I apply for the removal of data and biometric information?

The application is made to ACRO on an application form which can be found on its website. ACRO merely processes the applications by filtering them and sending those that are valid to the requisite police forces that are individually responsible for processing the data. ACRO does not participate in the decision-making process although processes agreed deletions.

On what grounds will the decision be made?

In general terms, you are no longer a suspect for the offence for which you were arrested or summonsed.

The decision is entirely at the discretion of the Chief Officer of the relevant police force.

Acquittal does not automatically mean that data will be deleted. You need to demonstrate either that a crime has not been committed or you were not the person that committed it (note that this does not include situations where incorrect data is held is that would be rectified through a different process).

If the Chief of Police agrees that the data should be deleted then this will be managed by ACRO. If the application is refused there is no formal appeal process. Reformulated applications will be considered by a different officer. If a reformulated application is refused then the only right of challenging the decision would be by making an application for permission for judicial review.

Examples

1. Lisa, who is a solicitor, is charged by Hertfordshire Police with failing to provide an evidential specimen of breath. The police take her fingerprints, photograph and a sample of her DNA. She pleads ‘not guilty’ and the matter is listed for trial. The prosecutor withdraws the charge after it is pointed out that the arresting officer has not completed the MG DD form properly. Lisa applies through ACRO for the immediate destruction of her samples and deletion of data relating to her arrest on the PNC. The Chief of Police refuses the application because he deems that a crime was committed and Lisa was simply acquitted on a technicality.
2. Michael (21), a student doctor who has no previous convictions, goes to pick up his brother Ebere from the cinema. Ebere gets into the car with two of his friends. On the way home, the car is stopped by the police and searched. In the back of the car, the police find a bag containing cannabis. Michael, Ebere and his two friends are charged with possessing cannabis with intent to supply by the Metropolitan Police. The police take their fingerprints, photographs and a sample of their DNA. After a trial, Ebere and his two friends are convicted but Michael is acquitted having given evidence that he knew nothing about any drugs. Michael applies through ACRO for the immediate destruction of his samples and deletion of data relating to his arrest on the PNC. The Chief of Police agrees to destruction of the samples and deletion of the data on the basis that Michael was wrongly identified as a suspect for this offence.

Send us an email, complete our online enquiry form or call us on 020 3944 6225 to find out how our criminal defence solicitors can assist you in seeking the deletion of your PNC data and destruction of samples.