Can I have my arrest record deleted?
Discussion
About 10 years ago I was arrested for a theft offence.
The Police came to my house to arrest me but I was not at home. They then phoned me and asked me to attend the Police station. I attended and was arrested and interviewed.
I believe that this arrest was unlawful in light of the Richardson case. I accept at that time it was normal practice to arrest people even if they attend the station voluntarily. As far as I am aware the Police did not have any reason to arrest me other than to interview me (no search took place of my home for example).
It was a case of mistaken identify and the Police took no further action against me and arrested the correct person.
Richardson case summary
http://swarb.co.uk/richardson-v-the-chief-constabl...
I have come another case where the arrested person was found to be unlawfully arrested and because it was a suspected rape he has been allowed to have the entire history of the arrest deleted from the police National Computer.
http://www.getsurrey.co.uk/news/surrey-news/rape-a...
http://www.bailii.org/ew/cases/EWHC/Admin/2017/129...
My actual question is, what rights do I have to have information related to my arrested deleted?
As far as I understand I can apply to have my DNA and fingerprints deleted and there may be law that makes this automatic.
But do I have the right to totally ask for the entire arrest record to be taken off the PNC so I can essentially say I was never arrested?
I plan to make a request to my local Police but it helps to know what I can and cannot ask for.
The Police came to my house to arrest me but I was not at home. They then phoned me and asked me to attend the Police station. I attended and was arrested and interviewed.
I believe that this arrest was unlawful in light of the Richardson case. I accept at that time it was normal practice to arrest people even if they attend the station voluntarily. As far as I am aware the Police did not have any reason to arrest me other than to interview me (no search took place of my home for example).
It was a case of mistaken identify and the Police took no further action against me and arrested the correct person.
Richardson case summary
http://swarb.co.uk/richardson-v-the-chief-constabl...
I have come another case where the arrested person was found to be unlawfully arrested and because it was a suspected rape he has been allowed to have the entire history of the arrest deleted from the police National Computer.
http://www.getsurrey.co.uk/news/surrey-news/rape-a...
http://www.bailii.org/ew/cases/EWHC/Admin/2017/129...
My actual question is, what rights do I have to have information related to my arrested deleted?
As far as I understand I can apply to have my DNA and fingerprints deleted and there may be law that makes this automatic.
But do I have the right to totally ask for the entire arrest record to be taken off the PNC so I can essentially say I was never arrested?
I plan to make a request to my local Police but it helps to know what I can and cannot ask for.
In the above case it says at para 32.
---
The Claimant has maintained his claim for Judicial Review. His Claim Form seeks damages, which could be pursued separately by private law action, but the principal relief sought is for a declaration that his arrest (and associated bail conditions) was unlawful. If granted, this would lead to the removal of any record of his recent arrest from the PNC.
---
It looks to me like the guy has some form of security job band an arrest record for rape could harm employment prospects. The wording indicates that if the arrest was found unlawful the result would be deletion from the PNC. Although the judgement doesn't go on to specifically state that deletion is required it does go on to say the arrest was unlawful - which suggests it will be deleted from the PNC.
---
The Claimant has maintained his claim for Judicial Review. His Claim Form seeks damages, which could be pursued separately by private law action, but the principal relief sought is for a declaration that his arrest (and associated bail conditions) was unlawful. If granted, this would lead to the removal of any record of his recent arrest from the PNC.
---
It looks to me like the guy has some form of security job band an arrest record for rape could harm employment prospects. The wording indicates that if the arrest was found unlawful the result would be deletion from the PNC. Although the judgement doesn't go on to specifically state that deletion is required it does go on to say the arrest was unlawful - which suggests it will be deleted from the PNC.
Tom1312 said:
No worries.
I think the issue is most people don't get that PNC is just a data base and just because you get arrested or attend for a voluntary interview, unless you are charged and found guilty at court, it doesnt count as a criminal record.
Pretty much this! Unless you're working above Secret in the UK nobody apart from the Police will get access to whatever might be on your record and even at that point it would only be another government department looking at it.I think the issue is most people don't get that PNC is just a data base and just because you get arrested or attend for a voluntary interview, unless you are charged and found guilty at court, it doesnt count as a criminal record.
Tom1312 said:
No worries.
I think the issue is most people don't get that PNC is just a data base and just because you get arrested or attend for a voluntary interview, unless you are charged and found guilty at court, it doesnt count as a criminal record.
AIUI it does matter when visiting the USA. Also AIUI their requirement for 'probable cause' means an arrest isn't as trivial as it is over here where the approach can be to arrest and charge then let the courts decide. If anyone thinks that last comment is fictional, it was told to a family member after he was arrested based only on uncorroborated allegations from his ex who was engaging in power-play. The details of the allegations were subsequently shown, after the minimum of investigation, to be false and the CPS offered no evidence in Court. No investigation took place prior to the arrest. Nothing happened to his ex. Anyway my point was that an arrest may well have implications for visiting the USA and possibly other countries.I think the issue is most people don't get that PNC is just a data base and just because you get arrested or attend for a voluntary interview, unless you are charged and found guilty at court, it doesnt count as a criminal record.
turbobloke said:
AIUI it does matter when visiting the USA. Also AIUI their requirement for 'probable cause' means an arrest isn't as trivial as it is over here where the approach can be to arrest and charge then let the courts decide. If anyone thinks that last comment is fictional, it was told to a family member after he was arrested based only on uncorroborated allegations from his ex who was engaging in power-play. The details of the allegations were subsequently shown, after the minimum of investigation, to be false and the CPS offered no evidence in Court. No investigation took place prior to the arrest. Nothing happened to his ex. Anyway my point was that an arrest may well have implications for visiting the USA and possibly other countries.
Being arrested is different from being convicted.Other countries will likely know about conviction records, but not arrest records.
IIRC
Edited by AndrewEH1 on Thursday 9th February 13:31
AndrewEH1 said:
turbobloke said:
AIUI it does matter when visiting the USA. Also AIUI their requirement for 'probable cause' means an arrest isn't as trivial as it is over here where the approach can be to arrest and charge then let the courts decide. If anyone thinks that last comment is fictional, it was told to a family member after he was arrested based only on uncorroborated allegations from his ex who was engaging in power-play. The details of the allegations were subsequently shown, after the minimum of investigation, to be false and the CPS offered no evidence in Court. No investigation took place prior to the arrest. Nothing happened to his ex. Anyway my point was that an arrest may well have implications for visiting the USA and possibly other countries.
Being arrested is different from being convicted.Other countries will likely know about conviction records, but not arrest records.
While you were posting I was taking a look online and it does indeed appear that there are implications for visiting the USA even after an arrest, regardless of charges or conviction.
From online searches, it appears that any person who has been arrested is not eligible for the visa waiver program so arrest alone has implications.
There are forms on the USA (London) Embassy website that ask for details of arrest, whether or not charges were brought or a conviction was obtained.
Site:
https://uk.usembassy.gov/visas/ineligibilities-and...
PDF form: see Section 2 and note the wording 'or...or...' etc not 'and':
http://photos.state.gov/libraries/unitedkingdom/16...
Even if an arrest was deleted from records after a person has been processed at a police station, or earlier than that, a person was de-arrested shortly after arrest, it would appear that to adhere strictly to USA entry requirements, the arrest should still be declared and the visa waiver would not apply, since the questioning asks whether you've ever been arrested, with no account taken of whether you were arrested and de-arrested / arrested and charged / arrested and convicted. If you've been arrested the USA authorities want to know about it.
The matter of police retaining arrest details, fingerprints, mugshots and DNA after the arrest of an innocent person who is never charged, or charged but acquitted, is a disgrace. Nobody should be treated in that way when innocent. After all, the position of such people (e.g. never charged and never convicted) is the same as the millions of ordinary innocent people in our land who are going about their daily lives with no requirement to give fingerprints or DNA simply because they're innocent.
Vexatious allegations leading to an arrest but nothing else should never be allowed to have the current level of impact on innocent people, including visiting the USA.
The matter of police retaining arrest details, fingerprints, mugshots and DNA after the arrest of an innocent person who is never charged, or charged but acquitted, is a disgrace. Nobody should be treated in that way when innocent. After all, the position of such people (e.g. never charged and never convicted) is the same as the millions of ordinary innocent people in our land who are going about their daily lives with no requirement to give fingerprints or DNA simply because they're innocent.
Vexatious allegations leading to an arrest but nothing else should never be allowed to have the current level of impact on innocent people, including visiting the USA.
turbobloke said:
While you were posting I was taking a look online and it does indeed appear that there are implications for visiting the USA even after an arrest, regardless of charges or conviction.
From online searches, it appears that any person who has been arrested is not eligible for the visa waiver program so arrest alone has implications.
Incorrect. From online searches, it appears that any person who has been arrested is not eligible for the visa waiver program so arrest alone has implications.
GCH said:
turbobloke said:
While you were posting I was taking a look online and it does indeed appear that there are implications for visiting the USA even after an arrest, regardless of charges or conviction.
From online searches, it appears that any person who has been arrested is not eligible for the visa waiver program so arrest alone has implications.
Incorrect. From online searches, it appears that any person who has been arrested is not eligible for the visa waiver program so arrest alone has implications.
Getragdogleg said:
How odd, I have received the same information when I enquired. I was told that I could not use the visa waiver system if I had ever been arrested and would have to apply for a visa the long way.
Doesn't surprise me. The US embassy in London had exactly that information on their site for years and told that to anyone enquiring, despite it being incorrect, causing many people to apply for a visa that they didn't need. They have now changed this to "We do not recommend..."
Anyone applying for a visa - whether non-immigrant or immigrant - has to get an ACRO certificate, which will show 'no trace' (nothing) 'no live trace' (spent/stepped down) or list details of current (unspent/not stepped down) criminal history, and this is how they verify any criminal history. If it shows no live trace, or anything listed, you have to satisfy them with further details.
Of course you don't have to do this when using the VWP, so the VWP relies more or less totally on your honesty and declaring anything in your history.
You are required to declare any arrests - and indeed should, as concealing it would be classed as a misrepresentation, which has serious implications should you be asked and found out, or require a future visa, or say, become a LPR and subsequently a citizen.
You ARE however still eligible to use the VWP even if you HAVE been convicted of a crime, or crimes. It is to do with the type of offence, how many crimes, the maximum possible sentence for those crimes (broadly aligned with the misdemeanor vs felony level), and the sentences ultimately given. For the purposes of US immigration law, a caution is treated exactly the same as a conviction, as it requires an admittance of the offence.
It is all in INA 212 (2) https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0...
Btw - this isn't just from google, I speak from personal experience of many years using the VWP, various visas, and then emigrating here, and at every stage they ask the same 'have you ever been arrested, if so please give details' question at every single stage.
You even have to declare any arrests - ever - on the final N-400 (citizenship) form.
Edited by GCH on Thursday 9th February 15:22
GCH said:
Getragdogleg said:
How odd, I have received the same information when I enquired. I was told that I could not use the visa waiver system if I had ever been arrested and would have to apply for a visa the long way.
Doesn't surprise me. The US embassy in London had exactly that information on their site for years and told that to anyone enquiring, despite it being incorrect, causing many people to apply for a visa that they didn't need. They have now changed this to "We do not recommend..."
Anyone applying for a visa - whether non-immigrant or immigrant - has to get an ACRO certificate, which will show 'no trace' (nothing) 'no live trace' (spent/stepped down) or list details of current (unspent/not stepped down) criminal history, and this is how they verify any criminal history. If it shows no live trace, or anything listed, you have to satisfy them with further details.
Of course you don't have to do this when using the VWP, so the VWP relies more or less totally on your honesty and declaring anything in your history.
You are required to declare any arrests - and indeed should, as concealing it would be classed as a misrepresentation, which has serious implications should you be asked and found out, or require a future visa, or say, become a LPR and subsequently a citizen.
You ARE however still eligible to use the VWP even if you HAVE been convicted of a crime, or crimes. It is to do with the type of offence, how many crimes, the maximum possible sentence for those crimes (broadly aligned with the misdemeanor vs felony level), and the sentences ultimately given. For the purposes of US immigration law, a caution is treated exactly the same as a conviction, as it requires an admittance of the offence.
It is all in INA 212 (2) https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0...
Btw - this isn't just from google, I speak from personal experience of many years using the VWP, various visas, and then emigrating here, and at every stage they ask the same 'have you ever been arrested, if so please give details' question at every single stage.
You even have to declare any arrests - ever - on the final N-400 (citizenship) form.
Edited by GCH on Thursday 9th February 15:22
Yes I was not convicted but at the end of the day if I am stopped by Police in the future and they know I was arrested for theft they will make assumptions about me. I know because I have worked in law enforcement before (not Police) and when you see someone has been arrested for soemthing you automatically think there is no smoke without fire (well I did anyway and I bet a lot of others do - especially when you cann see a break down of the reason or what happened in the case).
I understand that an entry for arrest does not equate to a coviction but as mentioned above, if innocent and the arrest was unlawful why should I have my data held.
I will send a DPA request and see what comes back.
I understand that an entry for arrest does not equate to a coviction but as mentioned above, if innocent and the arrest was unlawful why should I have my data held.
I will send a DPA request and see what comes back.
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