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27 Jul 2017

De-Arrest: Cleaning up your police record

David Farley was arrested by police after accidently knocking into David Cameron in 2014 whilst out jogging. He was questioned by the police but later “de-arrested” after his account was verified. Will David Farley’s arrest be removed from the Police National Computer (“PNC”) as a result of being de-arrested?

Section 30 subsection (7) and (7A) Police and Criminal Evidence Act 1984 (“PACE”) allows that “a person who has been arrested under any act of law at a place other than a police station, shall be released before reaching a police station if a constable is satisfied that there are no grounds for keeping him under arrest”.

The focal difference between “release without charge” and “de-arrest” is the timing of events. If it becomes apparent that a suspect who is arrested will have no case to answer, for reasons such as mistaken identity or that they could not have been the person involved, and they have not yet been processed by a custody officer, then the suspect will be released before they have been theoretically detained and de-arrested.

De-arresting is commonly used in breach of the peace situations whereby someone is arrested for the purpose of being removed from the area and later de-arrested once they are away from the vicinity. They are not taken to a police station and therefore their arrest is not formally recorded other than by the Officer concerned. If a person is de-arrested it is less likely that there will be a formal record of their initial arrest, unless a person is subsequently arrested for the same offence and the officer refers to the arrest of the initial suspect in their statement. This will then create a record on the PNC which will be available to potential employers if appropriate.

A person who is released without charge will have been subject to an investigation process. It is likely that they will have been questioned, under PACE, and detained for a period of up to 96 hours for indictable offences. If after this time, the police find that the suspect did not commit the alleged offence, or there is insufficient evidence to charge the suspect, they should be released without charge. This concludes the matter, unless further evidence comes to light, which allows the police to re-arrest and re-question in relation to the same charge.

Although generally a person has no legal obligation to disclose allegations, arrests or matters that result in no further action, it may be information that is disclosed to employers at the discretion of the police where it is deemed relevant to the position applied for. These positions are detailed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which can include FCA ‘Approved Persons’ roles, solicitors/barristers or some government roles.  The US Embassy recommend that travellers who have been arrested, even if the arrest did not result in a criminal conviction, do not attempt to travel visa free under the Visa Waiver Program and therefore this is an additional issue as a result of an arrest.

It is not clear from statistics how many arrests result in de-arrests, due to the limited records that are created. However it would seem that when a person is de-arrested they are in the same position as a person who is “released without charge” when it comes to the record of their arrest. Those who are arrested but not convicted of a ‘Minor Offence’ and those who are arrested and not charged with a ‘Qualifying Offence’ will automatically have their biometric information deleted. While no application is needed to remove biometric information an application is required for an individual’s PNC record to be deleted. The deletion of this material is not covered by legislation and therefore the decision rests with the chief officer of the police force who owns the information. There is also no formal appeals process.

The ACPO Criminal Records Office (“ACRO”) provide ten grounds for record deletion of biometric information and associated PNC records and at least one of these must be satisfied in order that the application can be made. These are as follows;

  • Unlawfully taken
  • Mistaken identity
  • No crime
  • Malicious/false allegation
  • Proven alibi
  • Incorrect disposal
  • Suspect status not clear at the time of arrest
  • Judicial recommendation
  • Another person convicted for the offence
  • Public interest

Therefore, David Farley and any other suspect who is arrested and subsequently de-arrested in a short time frame may consider making an application to ACRO for the removal of this information from their PNC in order to maintain a clean record. However, it is not clear as to the success of such applications, the length of time it may take to conclude, or the impartiality of the process.

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