Prosecuted but no contact

[Bletchleyite]

There is a burden of proof. It's one element of the case against the defendant - that they are the person who committed the offence. It's not so much that it's a private prosecution, but the fact that when a defendant doesn't show up, the prosecution's claim to their identity - the details that eventually find their way onto the PNC - goes through, on the nod.

It seems odd that that can happen even with an incorrect date of birth.

 

[Aljanah]

If the convicted person had a different date of birth, then it was not your step-daughter.

I would suggest contacting the Magistrates Court and getting all public (and any other) information you can about the case on 7/10/20. Was the fine paid? Can they confirm the date of birth of the person convicted? What address did they have for this person? (They may not tell you, but might confirm that it was not your step-daughter's address. or give you at least the county or the town.) Did this person attend, or were they convicted in their absence? What other information can they tell you? Is there any information at all about the case which could link this person to your step-daughter other than the same first and last name?

HTH

Concur; I'm no expert here but it does sound to me like we need information from the court rather than the prosecution department. For example, if the defendant was there then it cannot be the step-daughter.

Will the prosecutions people hand out personal info if one is claiming to not be the relevant defendant?

 

[John Palmer]

The statutory declaration provided by the Government website is not, so far as I can see, in a form the OP's step-daughter is obliged to follow. If there is a genuine doubt that she has been mis-identified by the DBS then it is perfectly straightfoward to change the terms of the declaration to suit the circumstances. For example, paragraph 1 of the declaration could be amended to read:

"The Disclosure and Barring Service have indicated that I am the defendant named above."

Seems clear that both the police and the DBS are treating the step-daughter as the person convicted of the offence, and the practical effect is to impede her job application and leave her name tarnished indefinitely. Since the 21 day period for filing the statutory declaration has passed, further delay in filing it increases the likelihood that the court's discretion to extend the period for doing so will not be exercised in her favour. If it subsequently transpires that she was not the person convicted then the DBS record will be corrected without a retrial, and the statutory declaration filed to secure such a retrial will become an irrelevance. But if she was the person convicted then delay in filing the declaration whilst attempts are made to convince GWR, the police and the DBS that their data is wrong could prove fatal to her prospects of securing the retrial she may find she needs.

 

[-Colly405-]

Response received from GWR...

Quote...

This case was originally in court and was resulted where the case would then show on a DBS check. The case was reopened and was withdrawn. The provider of our Arrest Summons Numbers that creates a record to show on DBS/CRB checks was not notified by the court of the case being withdrawn which is why it has shown on your record.

I have received notification from our provider that this case has been marked as withdrawn and will no longer show on any DBS checks that are made going forward.

So that feels like the end of it?

Thanks for your guidance...!

 

[John Palmer]

I hope GWR's response does indeed represent an advance towards a satisfactory outcome, but I'm completely perplexed by the terms in which that response is written!

“This case was originally in court and was resulted (!)... The provider … was not notified...” How easily the passive voice can be used to obfuscate and potentially draw a veil over somebody's error.

From the sound of it GWR brought a successful prosecution that led to creation of a DBS record for the defendant – who still appears, from the reference to “your record”, to have been your stepdaughter. Someone unknown made an application for the case to be re-opened and someone – probably GWR – then arranged for the charge to be withdrawn. Who is this “provider of our Arrest Summons Numbers that creates a record to show on DBS/CRB checks”? Isn't this someone within GWR Prosecutions Department – why would GWR outsource this task to some external agency? If this is just a circuitous way of saying that someone in GWR didn't become aware of a case that company had itself withdrawn then GWR are at fault for having failed to prevent an erroneous record finding its way onto the DBS database. They, after all, are the ones who initiated the prosecution and presumably agreed to its withdrawal.

Alternatively, if the court failed to notify some external agency of the case's withdrawal when it should have done so and this has led to the creation of an erroneous record then it's the court's error.

In either case, a fresh DBS check seems to be required at a further fee of £44.00 for an enhanced check, and it seems clear that this is a fee the person/company at fault ought to bear rather than your stepdaughter.

 

[-Colly405-]

I hope GWR's response does indeed represent an advance towards a satisfactory outcome, but I'm completely perplexed by the terms in which that response is written!

“This case was originally in court and was resulted (!)... The provider … was not notified...” How easily the passive voice can be used to obfuscate and potentially draw a veil over somebody's error.

From the sound of it GWR brought a successful prosecution that led to creation of a DBS record for the defendant – who still appears, from the reference to “your record”, to have been your stepdaughter. Someone unknown made an application for the case to be re-opened and someone – probably GWR – then arranged for the charge to be withdrawn. Who is this “provider of our Arrest Summons Numbers that creates a record to show on DBS/CRB checks”? Isn't this someone within GWR Prosecutions Department – why would GWR outsource this task to some external agency? If this is just a circuitous way of saying that someone in GWR didn't become aware of a case that company had itself withdrawn then GWR are at fault for having failed to prevent an erroneous record finding its way onto the DBS database. They, after all, are the ones who initiated the prosecution and presumably agreed to its withdrawal.

Alternatively, if the court failed to notify some external agency of the case's withdrawal when it should have done so and this has led to the creation of an erroneous record then it's the court's error.

In either case, a fresh DBS check seems to be required at a further fee of £44.00 for an enhanced check, and it seems clear that this is a fee the person/company at fault ought to bear rather than your stepdaughter.

Yes, the grammar and clarity do leave a lot to be desired!

Of course, the cost of our/her time to actually get to the point of getting GWR or the court service to agree that they were at fault, and the elapsed time that will take, means she will probably end up paying for the fresh DBS check herself...

 

[island]

Response received from GWR...

Quote...

This case was originally in court and was resulted where the case would then show on a DBS check. The case was reopened and was withdrawn. The provider of our Arrest Summons Numbers that creates a record to show on DBS/CRB checks was not notified by the court of the case being withdrawn which is why it has shown on your record.

I have received notification from our provider that this case has been marked as withdrawn and will no longer show on any DBS checks that are made going forward.

That sounds like total gobbledygook.

 

[Ediswan]

Of course, the cost of our/her time to actually get to the point of getting GWR or the court service to agree that they were at fault, and the elapsed time that will take, means she will probably end up paying for the fresh DBS check herself...

Why would a fresh DBS check be needed ? According to post #22, the person concerned should by now have started their new job, despite the contents of the original check. They also now have the letter saying that this case would not show on any future checks.