N09a Expunging of Cautions

1. Security protective marking

1.1 Not protectively marked.

2. Summary of changes

2.1. The following changes were made to this policy on 19th May 2010

• Minor changes to bring the policy up to date.

2.2. This policy is due for review in May 2012.

3. Application

3.1. This policy applies to:

• Operational Police Constables (PCs), Detective Constables (DCs), Chief Inspectors(CInsp) and above;
• Data Protection Team; and
• Assistant Chief Constable of Human Resources (ACC HR).

4. Purpose

4.1. The purpose of this is to outline the procedure for expunging a caution and when it is appropriate to do so.

 

5. Cautions 

 
5.1.  Kent police will comply with the Data Protection Act 1998.

5.2.  A caution is a recognised formal response to offending and is a crime report disposal.

5.3.  In considering a caution, officers will apply the following guidelines:

• there must be evidence of the offender’s guilt sufficient to give a realistic prospect of conviction;
• the offender must admit to committing the offence;
• the offender must understand the significance of the caution and give an informed consent to the caution being administered. In the case of a juvenile or other vulnerable person, this will apply to the parent, guardian or appropriate adult. (See policy HO3 for further guidance on appropriate adults).

5.4.  There may be occasions where a caution has been given incorrectly or inappropriately, these may include where:

• the facts do not amount to an offence in law;
• the admission is open to challenge;
• a lawful defence was not taken into consideration, etc.

5.5.  If any of the above applies, or there are other mitigating factors, it would be unjust for the caution to remain. In such instances the following mechanism for expunging the caution will be applied.

 

6. Authority level 

6.1.  The expunging of a police caution will only be undertaken following the authority of at least the rank of Chief Inspector.

6.2.  All applications for expunging of a caution will be subject of a report by the Officer In the Case (OIC) detailing:

• the full details of the person cautioned (i.e. surname, forenames, date of birth, CRO / PNCID number);
• the arrest / summons or court case reference;
• the offence (including crime report number where appropriate);
• the enquiries made;
• the admission(s);
• reasons why a caution was considered appropriate;
• reasons for the application.

6.3.  The report may refer to other completed paperwork, e.g. crime report, custody record, etc., to cut down on duplication of effort.

6.4.  Once the Chief Inspector or rank above has approved (or otherwise) the application, the paperwork will be returned to the OIC for any necessary system updating in accordance with section 6, below.

6.5.  A record of the application and the Chief Inspector’s (or rank above) decision will be kept. This will be kept with the case file. For information on the storage and retention of case files, see policy B09.

 

7. Informing the crime victim and the person cautioned 

7.1.  When a decision to expunge a caution has been made, the OIC will arrange for the crime victim and the person cautioned to be informed of the decision.

7.2.  The manner of informing them may be by letter, telephone or by personal visit, and is dependant upon the nature and circumstances of the offence and the vulnerability or other factors affecting the crime victim or person cautioned.

7.3.  Details of the above will be recorded on/with any paperwork or other record.

 

8. Restriction on the use and destruction of fingerprints and samples 

8.1.  Section 64 of the Police & Criminal Evidence Act (PACE) 1984 as amended by S118 of the Serious Organised Crime and Police Act 2005 states the law in respect of the retention or destruction of fingerprints, impressions of footwear and samples. S64 PACE was amended by S82 of the Criminal Justice & Police Act 2001 removing the obligation to destroy fingerprints, impressions of footwear and samples of suspects who are arrested and subsequently cleared of the offence or a decision is made not to prosecute.

8.2.  All requests for deletion of such records will be referred to the Data Protection Advisor FHQ for review. Although exceptional cases will be ‘extremely rare’ the circumstances will be considered and the ACC HR will make the final decision.

8.3.  Persons not prosecuted or cleared of an offence: Where fingerprints or samples are taken from a person in connection with the investigation of an offence and the person is not prosecuted or is cleared of the offence the fingerprints and samples may be retained after they have fulfilled the purpose for which they were taken.

8.3.1.  They shall not be used by any person except for purposes related to:

• the prevention and detection of crime;
• the investigation of an offence;
• the conduct of a prosecution.
  

8.4.  Persons convicted of an offence: Fingerprints and samples are not required to be destroyed if:

• they were taken for the purposes of the investigation of an offence of which a person is convicted; and
• a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.

 

8.5  Both sets of legislation are permissive and therefore allow Chief Officers the opportunity, in exceptional circumstances, to exercise discretion and accede to requests from data subjects for their DNA and fingerprints to be destroyed together with the supporting entry on the Police National Computer.

 

8.6  All requests for deletion of such records will be referred to the Data Protection Advisor FHQ for review.  Although exceptional cases will be 'extremely rare', the circumstances will be considered and the ACC HR will make the final decision.

8.7.  Click here to view the flowchart for exceptional cases.

 

9. Administration 

9.1.  Where a Genesis crime report has been created or updated as a result of the caution, the disposal will be shown as a caution. In line with Home Office Counting Rules the disposal will not be changed to reflect the expunging of the caution, neither is there any requirement to update the crime report enquiry log relating to it. The crime report is linked to the nominal record, which will reflect the expunging of the record.

9.2.  It is the responsibility of the OIC to ensure the Genesis nominal record is updated (through the local Area Intelligence Unit) to reflect the expunging of the caution by means of a new information record created on the nominal record with a type of ‘Information’ and using wording similar to “On (date) Chief Inspector A approved an application to expunge the caution administered to B on (date).”

10. Retention and disposal of records

10.1. Documents mentioned in the above policy will be retained for the period specified in  the  disposal schedule.

11. Equality impact assessment

11.1. This policy has been assessed with regard to its relevance to race and diversity equality. As a result of this assessment the policy has been graded as having a low potential impact.

11.2. Attached is the latest equality impact assessment that forms part of the policy review process.