Defence Forces (Evidence) Act 2022

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Re-taking of certain samples under Part 2 in certain circumstances

16. (1) Where—

(a) a person is placed in service custody for a period in connection with a relevant offence, and

(b) a sample under section 9 taken from the person during the period for which the person is placed in service custody proves to be insufficient or inadequately labelled or an intimate sample or a non-intimate sample taken from the person during the period for which the person is placed in service custody proves to be insufficient or is inadequately labelled,

a second sample under section 9 , a second intimate sample or a second non-intimate sample, as the case may be, may be taken from the person in accordance with this Part while he or she is so placed in service custody only if, subject to subsection (2) and section 4 (6), an authorisation to take the second sample is given under section 9 (2), 10 (2)(a) or 11 (2), as the case may be.

(2) An authorisation under section 9 (2), 10 (2)(a) or 11 (2), as the case may be, to take a second sample from a person referred to in subsection (1) may be given on one occasion only during a period for which a person is placed in service custody in connection with a relevant offence.

(3) Where—

(a) a non-intimate sample is taken from a person who is placed in service custody,

(b) the person is released without any charge having been made against him or her, and

(c) the sample proves to be insufficient or is inadequately labelled,

a second non-intimate sample may be taken from the person in accordance with this Part only if—

(i) a member of the Military Police not below the rank of commandant authorises it to be taken, and

(ii) the person attends at a specified military installation in accordance with this section for the purpose of having the second non-intimate sample taken from him or her.

(4) An authorisation under subsection (3) to take a second non-intimate sample from a person in accordance with that subsection shall not be given unless the member of the Military Police giving it has reasonable grounds—

(a) for suspecting the involvement of the person from whom the first non-intimate sample concerned was taken in the relevant offence in respect of which he or she was placed in service custody when that sample was taken, and

(b) for believing that a second non-intimate sample will tend to confirm or disprove the involvement of that person in that relevant offence.

(5) An authorisation under subsection (3) to take a second non-intimate sample from a person in accordance with that subsection—

(a) may be given on one occasion only, and

(b) may not be given if a period of more than 6 months has elapsed since the first non-intimate sample concerned was taken from the person.

(6) If an authorisation under subsection (3) to take a second non-intimate sample from a person has been given, a member of the Military Police, not below the rank of commandant, may, within the period specified in subsection (7), require the person by notice in writing to attend at a specified military installation for the purpose of having a second non-intimate sample taken from him or her.

(7) The period referred to in subsection (6) is one month from the date on which a member of the Military Police not below the rank of commandant is informed of the fact that that sample has proved to be insufficient or was inadequately labelled, as the case may be.

(8) A notice under subsection (6) shall state that the first non-intimate sample concerned taken from the person concerned has proved to be insufficient or was inadequately labelled, as may be appropriate, and a requirement in the notice to attend at a specified military installation shall direct the person concerned to so attend on specified days and at a specified time of day or between specified times of day.

(9) Nothing in this section shall require the second non-intimate sample to be taken from a person under this section to be of the same type of biological material as the first sample taken from the person which proved to be insufficient or was inadequately labelled, provided that the second sample concerned is one that is permitted to be taken under section 11 .

(10) If a second non-intimate sample is taken from a person under subsection (1), the references in this section other than in that subsection—

(a) to a first non-intimate sample shall be construed as references to a second non-intimate sample, and

(b) to a second non-intimate sample shall be construed as references to a third non-intimate sample,

taken, or to be taken, from the person.

(11) A sample taken, or to be taken, from a person under this section shall, for the purposes of this Act, be regarded as if it is to be taken, or had been taken, from the person under section 9 , 10 or 11 , as may be appropriate.