I’ve been NFA’d – is that the end of the matter?

Written 17th October 2019 by Ruth Peters

At Olliers we regularly deal with many clients who have been subject to a police investigation for many months.  Often it is the first instance a client may have had any involvement with the criminal justice system and often following an arrest and subsequent interview they may have been released under investigation for many months.  Understandably this is an extremely stressful situation to be in and therefore receiving notification of no further action (NFA) is a huge relief.  Unfortunately though it is not always the end of the matter and whilst the criminal investigation may have concluded there can often be further hurdles for clients to deal with.

Disclosure on an Enhanced DBS Certificate

Many employment opportunities and indeed voluntary opportunities require an enhanced DBS check.  Whilst a standard DBS certificate shows cautions and convictions, an enhanced DBS check can show “any other information”.   This means that the certificate can show non-conviction information and often disclosures in relation to police investigations that did not result in prosecution may feature here.  Often if information is being considered for disclosure on an enhanced DBS Certificate under the “other information” section police forces may write to applicants informing them that disclosure is being considered and affording them the opportunity to make representations.  This does not always happen but at Olliers we deal with many situations where police forces do invite representations.  We cannot stress enough the importance of making representations. At Olliers we have managed to successfully avoid disclosure of non-conviction information on enhanced DBS Certificates on behalf of our clients.  

Biometric Data

As many clients will be aware fingerprints and DNA samples are taken upon arrest.  Generally speaking once a no further action decision is reached in relation to a client who has no previous criminal convictions biometric data will be deleted from Police National Computer (PNC) systems.  Fingerprints are held on the National Fingerprint Database (IDENT1) and DNA on the National DNA Database (NDNAD).  If an application for record deletion is made then the application covers deletion of fingerprints, DNA, custody photograph and arrest record.  Therefore it is possible to confirm whether biometric data has already been deleted as any decision letter in relation to removal of arrest record will confirm the position in relation to the same.

Professional disciplinary proceedings

Whilst a criminal investigation may be concluded, for professionals who are subject to regulators, professional disciplinary proceedings can often follow.  It may be that disciplinary proceedings have already started and for a number of regulators individuals could be subject to interim orders whilst criminal proceedings have been ongoing.  Professional disciplinary proceedings generally have a lower standard of proof than criminal prosecutions and individuals are also subject to their professional regulator’s code of conduct.  For those who are subject to professional disciplinary proceedings ,whether that be relating to the GMC, NMC, HCPC, TRA or other professional regulator ,it is imperative that they seek specialist legal representation as the outcome of such proceedings is likely to have a huge impact on their professional career

Referral to the Disclosure and Barring Service

Referrals to the Disclosure and Barring Service in relation to potential inclusion on the barred list can often arise following notification of no further action.  In fact it may very well be the case that a referral takes place many years after an allegation.  Typically referrals can arise on a discretionary basis when an individual makes an application for an enhanced DBS and details of a previous allegation manifests.  The Disclosure and Barring Service has powers to bar individuals from working in regulated activity with children and/or vulnerable adults.  Whilst referrals are made to the DBS following convictions or cautions, referrals can often be made on a discretionary basis following allegations often arsing from incident in thee workplace.  Typically referrals may be made in relation to individuals working in care homes, schools, voluntary organisations  and more.  The Disclosure and Barring Service will afford individuals the opportunity to make representations that they ought not to be included on the barred list and it is crucial that individuals do submit such representations to the DBS.  At Olliers we have significant experience of successfully avoiding inclusion on the barred list in relation to many of our clients. For more information in relation to this click here.

Contact our DBS lawyers

Unfortunately therefore a notification of no further action might not be the end of the matter for an individual.  If you have concerns or require representation in relation to any of the above areas please contact our Disclosure and Barring Service lawyers to arrange a confidential discussion in relation to your particular concerns.


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