Nick Barnard – Associate, Corker Binning
For the majority of people, whose only interaction with lawyers might be when buying a house or arranging a will, being arrested is an extremely serious matter. Even if no criminal proceedings result, simply the experience of being detained at a police station and interviewed under caution is not one which many are keen to repeat.
Thinking further ahead, what are the long-term consequences once a criminal investigation is complete?
For most professionals (whether or not regulated), a criminal conviction or caution (which is sometimes treated as a conviction even though it involves no further immediate consequences for the offender) is an even more serious matter. In particular, a standard Disclosure & Barring Service check (‘DBS’ – formerly Criminal Records Bureau ‘CRB’) required for many professional and voluntary roles will disclose both convictions and cautions provided they have not been ‘filtered’ by passage of time (for example, an adult caution will cease to be disclosed on a standard DBS check six years after being issued.)
Even if you are swiftly de-arrested, or later establish that the arrest was wrongful, this may not be sufficient to prevent professional or bureaucratic problems down the line. The mere fact of your arrest will be a matter of record on the Police National Computer (PNC). Furthermore, if you were arrested for a recordable offence (which includes all but the most minor offences) then your photograph, fingerprints and a non-intimate DNA sample will likely have been taken (by force if you refuse to consent) and run as a ‘speculative search’ against samples related to previous unsolved offences.
As noted above, an arrest that does not result in caution or conviction will not be disclosed on a standard DBS check. However, an ‘enhanced’ DBS can include information contained on the PNC other than cautions and convictions if the Chief Constable of a local police force deems it relevant. Whether this discretion is applied will clearly be influenced by the number of entries on the PNC, the severity of the offences and the position sought by the applicant (for example, working with vulnerable children or adults).
Notifying professional bodies
The approach to arrests, charges and convictions varies between professional bodies and regulators, although most will require you to notify them of any conviction other than a minor driving offence. Furthermore, unfortunately the rules concerning what should be disclosed are rarely definitive.
For example, the General Medical Council and Nursery & Midwifery Council do not have a blanket requirement that all arrests not resulting in a charge should be reported. However, you nonetheless have catch-all requirements to notify your professional body of anything which might call into question your fitness to practice, which may be the case depending on the facts of the investigation and arrest. Further, you will need to undergo an enhanced DBS check on commencing practice, which may need to be renewed depending where your career takes you. As explained above, these checks could result in the record of your arrest being disclosed if the local Chief Constable deems it relevant.
Whilst the Financial Conduct Authority (FCA) no longer requires applicants for controlled function approval to disclose whether they have ever been arrested, the current Form A does require disclosure of any current criminal proceedings or investigation on approval. Furthermore, your firm has an ongoing duty to notify the FCA of any current proceedings or investigation which concern you, which provides a further incentive to try and resolve matters quickly and at the police station if possible.
On an individual basis, a prospective employer may ask you during the recruitment process whether you have ever been arrested or interviewed by the police, or it may be a condition of your contract that you must inform your employer of such incidents, whether or not a further investigation or charge results. Whilst it is not a criminal offence not to disclose such information (unlike failing to disclose an unspent conviction or caution if asked), it would clearly have an impact on your standing if it later transpired that you had been dishonest, particularly if the arrest or investigation was relevant to your suitability for the job.
If in doubt, take advice (for example, from an employment lawyer or your defence union) on whether to notify your employer or professional body, as this allows you to take control of the declaration (rather than have it come up unannounced in another context) and removes any suggestion that you have attempted to conceal the facts.
Travelling to the USA is another good example of how an arrest can result in ongoing difficulties. UK citizens usually enjoy the benefits of the Visa Waiver Programme; but this privilege is lost merely by the fact of being arrested, even as a result of mistaken identity or other error. Whilst an arrest resulting in no further action, particularly for a minor offence, is unlikely to prevent a full visa being granted, the additional cost and inconvenience of negotiating the full immigration procedure is another consequence of an incident for which you may be entirely blameless.
Having considered the consequences, what can be done to minimise the impact of becoming involved in a police investigation?
Avoid being arrested
This may seem an obvious, even futile, suggestion and if you are arrested at the scene of an incident or without prior notice then it may well have been unavoidable. However, if you have some notice that the police may wish to interview you, then there are steps you can take to minimise the risk of arrest. Although it may seem counterintuitive, it can often be the right move to contact the police, or arrange for a lawyer to do so on your behalf, and make it known that you are aware of the investigation. In doing so, you can offer to attend a voluntary interview under caution, thus minimising the risk of an unexpected arrest and giving some scope for attending at a time convenient to you (outside working hours for example). Your lawyer can also request advance disclosure of the case against you, giving you maximum opportunity to prepare and gather evidence in your defence, which may not be possible if your first meeting is at the police station immediately prior to an interview.
Assuming the investigation is discontinued, it is wise to obtain formal confirmation. Whilst this may also seem obvious, it is easy to overlook in an unfamiliar and stressful situation. As of April 2017, where a person has been arrested and released on bail, the police have a duty to advise that person in writing if a decision not to prosecute has been taken (albeit with the qualification that proceedings may still follow if new evidence comes to light). However, there is no such formal duty to notify if you have attended a voluntary interview without being arrested. You should therefore seek to obtain written confirmation from the police in such circumstances, or if this is not forthcoming, ask your lawyer to provide a letter explaining the outcome. Do this promptly on conclusion of the matter and retain the record; it could be some months or years before you are asked to account for the events, at which point it will be far more difficult to obtain such evidence. Police officers and solicitors may have moved in the interim and, whilst the PNC will remain as a record of the outcome, it will only provide basic information. It may not convey the nuances of the incident which could be important in convincing your employer and others that no fire accompanies the smoke.
Establish a wrongful arrest
Once you are arrested and booked into the police station custody suite, the record of your arrest and detention will remain even if the investigation is immediately discontinued. However, it can still be worth challenging the basis of the arrest, either informally at the police station or formally through a complaint or civil action for false imprisonment as a result of wrongful arrest.
A wish to put a suspect on bail so as to impose conditions, such as residence at a particular address or surrender of passport, is not in itself grounds for arrest (rather, there would need to be further justification, such as a need to protect a complainant or witness, or to prevent absconding). Therefore, if successful representations can be made to the custody sergeant that the arrest was not necessary under any of the grounds allowed by the Police & Criminal Evidence Act 1984, this may be sufficient to persuade the officer that you should be released without bail, thus avoiding any restrictive conditions and the stigma of being held on bail.
Once an investigation has concluded, presuming you can establish that your arrest was indeed unlawful and fund litigation if necessary, it is open to you to pursue a complaint or civil action. If successful, you may receive damages (although these will be limited unless you can prove financial loss as a direct consequence of the arrest) but the moral significance of the admission may be valuable to you, and also could be important in persuading the Chief Constable to erase your PNC record (see below).
Seek deletion of your record
As explained above, if you were arrested for a recordable offence, your DNA, fingerprints and photograph will be taken at the police station, and a record of your arrest entered onto the PNC. Assuming no charge results, your DNA sample and fingerprints should be automatically destroyed on conclusion of the investigation (unless the police apply to the Biometrics Commissioner for its retention) but your photograph and PNC record will be retained until you reach the age of 100.
You may apply to the Chief Constable of the relevant police force to have information removed from the PNC, although be aware that an investigation being discontinued is not in itself automatic grounds for such an application to succeed. Rather, the Association of Chief Police Officers Criminal Records Office (ACRO) guidance suggests that additional circumstances are required, such as a proven malicious allegation or establishing that no crime in fact took place. Clearly a finding of wrongful arrest would be a persuasive factor in such an application.
Whilst the removal of your PNC record will prevent such information being disclosed in an enhanced DBS check, it does not change history. You should therefore be careful to retain your own record of what the PNC contains (for example, by making a subject access request before applying for deletion) should you be required to explain events in future (for example, to an employer or immigration authority).
Ultimately however, whilst these safeguards may be sufficient to repair the majority of the damage, prevention remains far better than cure, and so the priority should remain avoiding the arrest wherever possible.
 Tangentially, the Court of Appeal has recently held that current rules preventing certain serious offences ever being filtered, and prohibiting filtering where the offender has more than one conviction or received a custodial sentence may in some cases be an unlawful breach of Article 8 of the European Convention on Human Rights - see: http://www.corkerbinning.com/the-disclosure-and-barring-service-and-the-need-for-proportionality/