no live trace Archives - Police Caution Removal Solicitors

Can a caution be removed after 5 years?

Matt Elkins — Fri, 03 Sep 2021 12:02:21 +0000

We are often asked; can a caution be removed after 5 years? The reason for this question stems back to previous disclosure rules that now only generally apply to ACRO Police Certificates. We still hear of police offices telling arrestees that their caution will be “removed” after 5 years, even though the rules changed many years ago. The reason for the faulty advice may be due to a lack of training, or it could be related to an officer’s desire to ensure compliance from a suspect. An officer may tell a suspect that they shouldn’t worry about accepting a caution as it will be removed after a relatively short period of time.

The reality is that cautions are not “removed” after 5 years.

The question you then to ask is what do you mean by “removed”, also from where are the records removed, and in relation to what purpose?

Can a caution be removed after 5 years?

The 5 year rule was originally set out in the Association of Chief Officers of Police (ACPO)’s General Rules for Criminal Record Weeding on Police Computer Systems and Code of Practice on Data Protection issued in 1995. These rules meant that certain cautions and convictions would be deleted from police systems after a period of time. For a caution, generally they would be deleted after 5 years.

Police Cautions and “stepping down” after 5 years

In 2004 the Bichard Report came out which made recommendations about the creation, review, retention, deletion and information sharing of such information. In 2006, ACPO issued new guidelines for the retention of records on the Police National Computer (PNC) which replaced the 1995 guidelines; this provided for the retention of records until the subject reached 100 years of age, but with a process known as “stepping down” under which types of records would, after a given period, only be disclosed for police purposes or for enhanced disclosure. Cautions were stepped down after 5 or 10 years depending on the severity of the offence.

100 Year PNC Retention Policy

In 2009 there was a court ruling, commonly referred to as the “Five Constables Case” that clarified whether records should be deleted from the PNC. The court decided that there needed to be a “complete record” of all arrests, cautions and convictions held on the PNC, and so that although records may not be disclosed after certain periods of time, they would not be deleted from the PNC until a person reached 100 years of age.

So can a caution be removed after 5 years?

Therefore, in respect to the question; can a caution be removed after 5 years, strictly speaking the answer is no. The caution will be retained on the PNC until the data subject reaches 100 years, unless the caution is deleted from the PNC.

The 5 year retention rule does still apply for ACRO Police Certificates for certain cautions. Cautions for more minor offences, such as low level assaults, will become “stepped down” after 5 years, but this does not mean the caution will be “removed” from the PNC. What will happen after 5 years is that the caution will no longer be directly revealed on the Police Certificate, but the Certificate will instead state “no live trace”. If you have never had a caution or conviction, your certificate will simply state “no trace”. A no live trace record can cause difficulties when it comes to immigration as many countries will enquire why a certificate says “no live trace” as opposed to “no trace” – the US and China being notable examples.

If your caution is for a possession of a class A drug then the step down period if 10 years, instead of 5.

Can a caution be removed after 5 years on DBS Checks?

The current situation in relation to adult police cautions and background checks is generally that they will not show on a basic DBS check (unless it is a conditional caution, and only for up to 3 months).

On a standard and enhanced DBS certificate a police caution will show for 6 years, and then become protected. If the caution is for an offence that is on the specified offences list (such as child cruelty/neglect, ABH, affray, sexual assault, possession of indecent images) then the caution will be permanently disclosable on a standard and enhanced check. On an enhanced check the police can still disclose information related to a protected caution after the 6 year period if they feel it is relevant to do so. For more details on when a police caution will be revealed, please see our police caution calculator.

Police Cautions and Removal after 5 years

The opinion that a police caution is removed after 5 years is a remnant from previous rules, rules that are still being repeated by some police officers. In truth a caution is retained until someone reaches 100 years of age (unless the caution is deleted) and will be subject to different disclosure rules depending on the check that is being done, and the type of offence the caution was given for.

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Is the UK part of the Visa Waiver Program?

Matt Elkins — Tue, 26 Mar 2019 12:46:17 +0000

The United Kingdom is part of the Visa Waiver Programme (VMP). There are 43 countries in total that participate in the Visa Waiver programme.

The Visa Waiver Programme permits citizens of these 43 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. In return, the 43 countries must permit U.S. citizens and nationals to travel to their countries for a similar length of time without a visa for business or tourism purposes.

There are exceptions to these rules that are currently in force, and which are published on the US Department of Homeland Securities website.

What is an Electronic System for Travel Authorization (ESTA)?

An ESTA is an automated system that verifies a person’s eligibility to travel to the United States under the Visa Waiver Programme (VWP).

In order to be eligible to apply under the Visa Waiver Programme, you must possess a passport with specified security features, it must have a digital photograph of yourself printed on the data page, and your passport must also have a machine-readable zone.

Can you get ESTA Approval with a Criminal Record?

Depending on the offence, if it is “serious” or drug related, then you will need to disclose an arrest on your ESTA application, and which will most likely result in the refusal of your visa waiver, and necessitate a full visa application. The criminal records question on the ESTA application states the following:

Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority? Have you ever violated any law related to possessing, using, or distributing illegal drugs?

The US authorities currently not only require court convictions to be disclosed on the ESTA, but also cautions and arrest records. For further details about this, and what your options are, please visit our page here: Can United States of America Immigration Officials see my Criminal Record?

As with the USA, a criminal record can impact travel and work visas to other countries. For example, a police caution can also cause serious issues for residency and work visas to Saudi Arabia or China.

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Can United States of America Immigration Officials see my Criminal Record?

Matt Elkins — Tue, 15 Jan 2019 09:50:35 +0000

If you are planning on travelling to the USA and you have a criminal record, you may be concerned about what records the authorities can see.

We received several anecdotal reports of UK citizens attempting to travel to the US and being turned away due to arrest records, see here: for an report in the news.

In 2012 a Subject Access Request to the Association of Chief Police Officers of England, Wales and Northern Ireland (a now defunct organisation replaced by the NPCC) the police stated that the US had no direct access to the Police National Computer (PNC) or the Police National Database (PND).

We wrote to the Home Office to see if anything had changed since 2012, given the tightening of US immigration law.

Copied here is the Home Office’s response (click on the image to be taken to a pdf version).

As you will see from the letter, US Immigration Authorities do not have direct access to the UK Police National Computer (PNC) – which means they do not have direct access to UK criminal records.

They may however obtain information via the 5Eyes partnership between the UK, US, Australia, Canada and New Zealand, under Operation Angel Watch. Operation Angel Watch is an intelligence-driven program targeting registered sex offenders travelling abroad who ICE believes are likely to engage in child sex tourism.

The US may also obtain information from the PNC in relation to a “legitimate request”, made on a case-by-case basis to UK law enforcement.

What a “legitimate request” might mean is open to speculation, but likely means in relation to a “policing purpose”. A policing purpose is defined by the College of Policing as:

Policing purposes provide the legal basis for the collection, recording, evaluation, sharing and retention of information and may include one, or a combination, of the following:

protecting life and property
preserving order
preventing the commission of offences
bringing offenders to justice
any duty or responsibility arising from common or statute law.

Clearly these categories are very broad, and might be interpreted to extend to simple spot checks undertaken on anyone entering US territory.

The US will in addition uncover criminal records via self disclosure, namely via an ACRO Police Certificate or in an ESTA application. A Police Certificate will typically be requested by the US authorities for any application for a long term visa/citizenship.

Police Certificates and the US

The US has strict requirements on what they require foreign nationals to disclose. For example when applying for an ESTA under the Visa Waiver Programme the following questions are asked:

Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority? Have you ever violated any law related to possessing, using, or distributing illegal drugs?

The US embassy’s website also states that even people who don’t have a caution or conviction, namely just an arrest record, should not travel under an ESTA:

If you have ever been arrested, even if the arrest did not result in a criminal conviction, have a criminal record, have a serious communicable illness, have been refused admission into, or have been deported from, the United States, or have previously overstayed under the terms of the Visa Waiver Program, we do not recommend that you attempt to travel visa free under the Visa Waiver Program. The Rehabilitation of Offenders Act does not apply to US visa law and spent convictions,regardless of when they occurred will have a bearing on a traveler’s eligibility for admission into the United States.

https://uk.usembassy.gov/visas/visa-waiver-program/additional-requirements/

In 2017, with respect to US nationals, the USA and the UK entered into an agreement to “improve information sharing”. The memorandum of understanding between the USA Federal Bureau of Investigation (FBI) and the UK ACRO Criminal Records Office means that ACRO will send the FBI details of USA nationals convicted in the UK and vice versa; both organisations will respond to requests about either countries’ nationals who have criminal records in the USA or the UK.

If you are planning on staying long term in the US you will need to go through the formal visa application process. As part of the visa application process you will usually be asked to provide a police certificate issued by ACRO.

A police certificate will display any criminal records that are not “stepped down”. If your records are “stepped down” your certificate will state “no live trace”.

A “no live trace” record will tell the US authorities that you have at some point in time received either a caution or conviction.

If however you have only ever simply been arrested, with no caution or conviction, your police certificate should state “no trace”. Your arrest will nevertheless still be recorded on the PNC and will be potentially disclosed if a “legitimate request” is made to UK authorities.

Police Certificates and Deletion of Police Cautions

If you have a police caution on your PNC record, or an arrest record, and you are worried about its impact on immigration to the United States of America, or any other country, then please get in touch.

It is not just the US that will carefully inspect any criminal record. A previous conviction, arrest or police caution can impact travel and work visas to other countries. For example, a police caution can also cause serious issues for residency and work visas to Saudi Arabia or China.

If your case is related to immigration to the United States of America, we have excellent links with attorneys based in New York and California, and will often strategise a case in coordination with an immigration application.

We have successfully applied for the expungement of many police cautions, and other police records, in the past.

Once a caution is expunged from the PNC, the related police certificate will return a “no trace” outcome.

Please get in touch to arrange an initial consultation if you have any police record or DBS related issue.

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Deletion of Caution for Drugs Record

Matt Elkins — Sat, 04 Aug 2018 09:10:07 +0000

We have successfully applied for the deletion of a possession of drugs police caution for our client.

Our client wanted to move to a country that takes a very strict approach to drugs offences. Had the caution been retained the client would have been forced to give up on significant opportunities.

Now that the caution is deleted, the client’s police certificate is clear, stating “No Trace” as opposed to “No Live Trace”.

Records Deletion and Suppression Solicitors

We have extensive experience in applying for the deletion of police cautions in relation to many different police forces.

Along with applying for the deletion of police cautions, we are also able to assist with the deletion of PNC arrest records, community resolutions, harassment PINs, Penalty Notices for Disorder (PNDs) and local police records held on the Police National Database (PND).

Along with applying for the deletion of police records, we can also assist with challenging DBS disclosures on both standard and enhanced DBS certificates. Our lawyers also have extensive experience in challenging DBS barring decisions; both appealing existing barrings, or resisting a new barring application.

We can also assist with applying for the removal of online records, such as unfavourable news articles under the right to be forgotten (the right to erasure).

Also if you, or a loved one, has received a restraining order, will will be able to assist in its removal or amendment.

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Caution, Arrest Record, DNA, Fingerprints and Custody Photo Deleted for Client

Matt Elkins — Sat, 15 Apr 2017 14:03:14 +0000

Our client had been accused and arrested for an assault allegation.

The client, after spending the night in a police cell, worrying about work the next day, readily accepted the police’s version of events and accepted a police caution.

The police told the client the caution was of limited consequence and if he didn’t agree to it he would be prosecuted.

After leaving police custody, the client investigated the true implications of the caution, and the correct procedures the police ought to have adopted at the police station. The client then contacted us.

After accessed his case, we were able to identify errors in the caution procedure adopted by the police and the client’s arrest.

We promptly made representations to the police who ultimately agreed to not only delete the client’s police caution, but also agreed to expunge the clients arrest record, DNA, finger prints and custody photograph.

Thank you for the great news and the wonderful service. I wish every solicitor I have dealt with was as responsive as you.

Arrest Record Deletion

When a suspect is arrested, the police will create a Police National Computer (PNC) arrest record.

An arrest record will be retained indefinitely (until the person is 100 years old) unless the police agree to delete it. An arrest record will therefore be created even if a suspect is never cautioned nor convicted.

An arrest record can cause an individual difficulties as it can be disclosed on enhanced Disclosure and Barring Service (DBS) certificates.

Police Caution and Arrest Record Deletion

We have extensive experience of challenging the retention of police records, including DNA, fingerprints, police cautions, arrest records, PND’s and other non-conviction records (such as local CRIS reports).

If you, or a loved one, are troubled by an existing police record then please get in touch. We offer our services on reasonable fixed fees in most cases.

Disclosure and Barring Service Appeals

Along with successfully applying for the expungement of police records, we also are often instructed to challenging DBS certificates and DBS applications to bar.

If you have received a DSB certificate with information you dispute, then we are able to assist you appealing your certificate.

If you have already been placed on the barred list, we can apply to have you removed. If the DBS have written to you expressing their intention to place you on either the children or adults barred list, or both, then we are able to assist – we have helped many clients resist being placed on the barred lists.

If you have received a police caution, especially if it is for a more serious offence, and particularly if it is of a sexual nature, the DSB at some stage are likely to instigate the barring procedure against you. Given our experience in this field, we are well positioned to challenge both the retention of your police caution and any DBS barring application.

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