This article looks at whether it is possible to delete an overseas conviction that has been transferred onto the UK PNC.

 If you have been convicted overseas and your record has been transferred onto the UK Police National Computer (PNC) you will, in effect, have a criminal record in the UK.

This overseas record can cause issues with respect to Disclosure and Barring Service (DBS) checks and also ACRO Police Certificate checks, which are typically required for overseas citizenship or long-term visa applications.

Can you get overseas convictions deleted?

 The short answer to this question is no… however recently we took on a case where it seems it may be possible…

 You can get a record removed, as you would expect, if your overseas conviction is quashed/overturned. But what if the record remains, and simply the conviction is historic? Will the police take a reasonable view and delete the record?

 ACRO’s website provides this emphatic negative answer:

My foreign conviction no longer appears on a disclosure from the country in which I was convicted. Why is it still on my UK record?

Within the UK foreign convictions are stored and retained in the same way that an equivalent conviction in the UK would be stored and retained. The UKCA-ECR receives details of any amendments to the foreign conviction of a UK national and this can include where the conviction has been deleted from the register due to an amnesty or the end of a retention period.
If the UKCA-ECR is told that an EU conviction has been deleted from the criminal register of the convicting country, whilst it will not delete it from the PNC, it will no longer be retransmitted when another EU Member States request details of that person’s UK criminal convictions.

  An overseas record therefore may not be “retransmitted” according to ACRO’s interpretation, but that doesn’t stop disclosure on an ACRO Police Certificate or a DBS Certificate.

 For a Police Certificate they can disclose the record directly on the certificate, depending on whether it is “stepped down”. If the record is stepped down it will be indirectly disclosed as a “no live trace” record. A “no live trace” record effectively tells any foreign nation that the subject has a criminal record, but doesn’t reveal what it is. Many countries such as the US, Canada, Singapore, Saudi Arabia, and Australia will request further details about your record if you produce a “no live trace” certificate.

  Our client was having difficulties with respect to disclosure on an ACRO Police Certificate and emigration to a Middle Eastern country. If the record could not be removed the client would miss out on a life changing opportunity.

 Case Study

  On reading ACRO’s opinion on the matter you would assume that there was nothing that could be done; we had believed the same until we started researching the matter in detail.

 The client was a UK national, who had received a minor conviction in an EU member state some 20 years ago, for which the only penalty had been a fine.

 With the stakes high for the client, we dug a little deeper and concluded that perhaps ACRO, and the Chief Constables’ responsible for controlling the PNC, had misinterpreted the EU Regulation applicable to the transfer of overseas data from an EU member state.

 On our reading of the Regulation we came to the conclusion that in fact if data was transferred to the UK PNC, from an EU member state, and subsequently the conviction was deleted from the overseas database, the UK in fact has a corresponding duty to also delete the record from the PNC.

 The client had, prior to instructing us, applied for deletion of his record from the PNC via the International Criminal Conviction Exchange Disputes Team, and was told the following:

 Once offences are recorded on the PNC, they are subject to UK retention guidelines. Therefore, if an offence from another country was weeded in that country, this would not mean that it would have been removed from the UK’s PNC

  He then applied for deletion via the ACRO’s Records Deletion Process:

 You are not eligible to apply for your PNC record to be removed under the Record Deletion Process (RDP) because the event subject of your request resulted in a court conviction.

Individuals cannot apply to have a court conviction deleted under the RDP because Chief Officers cannot overrule the convictions handed down by the courts.

If new evidence emerges, however, there is the opportunity for you to apply to the court to appeal.

 So that was that…

 Data Controller of the PNC

The first issue we had to determine, and which you might imagine would be a fairly straight forward exercise was, who should we write to?

The record was an overseas record, but it was lodged on the UK PNC – usually the Data Controller for a record on the PNC is the UK police force where the offence originated. Furthermore, even if the Data Controller was a local police force, the issue was systemic one, namely a local police force would only apply the general rules applicable to the PNC, and would not be prepared to overrule these rules.

We therefore concluded that we needed to locate, and write to, the Chief Constable at the NPCC who was responsible for the management of the PNC. Who this was however was by no means clear, but we managed ultimately to track down the Chief Constable responsible.

We sent off our opinion and waited…and chased….and waited…and chased…. anyone familiar with dealing with a public body knows the feeling….

Eventually we got notification that the matter had been referred to counsel for advice… and so it seemed that we might be onto something…

 More chasing…more waiting… (coronavirus)….even more waiting…until… a letter

“…I can confirm that in response to those requests that …. convictions recorded on the PNC have now been deleted…”

 No explanation, no reasoning – just confirmation that the record was now deleted.

 Interpretation

 You might conclude one of two things from this decision, that either the NPCC realised they were wrong on the law, and so didn’t want to set a public precedent (and lead to mass deletion requests of overseas EU convictions from the PNC) or they exercised their discretion on this one, and only one, occasion.

 The client’s case for deletion, aside from the technical arguments, was compelling; it was a very old record, very minor, and issued in questionable circumstances – it had long since been deleted from the overseas database. Had the incident occurred in the UK the client probably would have just received a caution, a community resolution, or maybe just a ticking off. So maybe the police just felt sorry for him… on the other hand however, given the previous intransigence, and the time it took to come to conclusion, after seeking outside advice, it may be that they simply didn’t fancy the fight… either way, a good result for the client, who is now onto bigger and better things, without a minor historic event acting as an incubus to his career.   

 If you are having difficulties due to an overseas conviction, particularly from an EU member state, then please get in touch.

  2021 Update

 ACRO appears to now have now updated their policy since we took this case and now state the following on their website: 

 When the UKCA-ECR is made aware that the conviction has been ‘weeded’ from the convicting country’s criminal register, then ACRO will review those convictions on a case by case basis.

 So it now seems if an overseas record is weeded in the transferring country, they will now consider deletion….which is progress! 

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