Defence Forces (Evidence) Act 2022

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Extension of retention period under section 36 for items of forensic evidence taken under section 34 in certain circumstances

37. (1) An item of forensic evidence taken from, or photograph taken of, a person pursuant to powers conferred by section 34 shall not be destroyed under section 36 in any case in which the provost marshal determines that any of the following circumstances apply:

(a) a decision has not been taken whether or not to institute proceedings against the person for the offence against military law concerned in connection with which the item of forensic evidence or photograph concerned was taken;

(b) the investigation of the offence against military law concerned has not been concluded;

(c) the item of forensic evidence or photograph concerned, and the results of any examination or analysis of it, are likely to be required for the prosecution of an offence against military law connected with the event, incident or circumstances the subject of the offence concerned—

(i) for use as evidence in such proceedings,

(ii) for disclosure to, or use by, an accused in such proceedings, or

(iii) to support the admissibility of any evidence on which the prosecution may seek to rely in such proceedings;

(d) having regard to the matters specified in subsection (2), the provost marshal believes it is necessary to retain the item of forensic evidence or photograph concerned in connection with the investigation of the offence against military law concerned taking account of all the circumstances of the case and the reasons why—

(i) proceedings for that offence have not been instituted against the person, or

(ii) if such proceedings have been instituted against the person, they were determined without he or she being convicted of the offence concerned;

(e) there are reasonable grounds for believing that the item of forensic evidence or photograph of the person may be required in connection with the investigation of an offence against military law, other than the offence in connection with which the item of forensic evidence or photograph was taken, which the person is suspected of having committed.

(2) The matters referred to in subsection (1)(d) to which the provost marshal shall have regard are the following:

(a) whether the person concerned has any previous conviction for an offence against military law similar in nature or gravity to the offence concerned in connection with which the item of forensic evidence concerned was taken from, or the photograph concerned was taken of, him or her;

(b) the nature and seriousness of that offence;

(c) any other matter that the provost marshal considers appropriate for the purposes of the determination.

(3) If, in relation to an item of forensic evidence taken from, or a photograph taken of, a person pursuant to powers conferred by section 34 , the provost marshal determines that one of the paragraphs of subsection (1) applies, then he or she may, during the retention period, give an authorisation to extend that period by a period of 12 months.

(4) The provost marshal may, while an authorisation under subsection (3) or this subsection, as may be appropriate, is still in force, give an authorisation under this subsection to extend the retention period on a second or further occasion for a period of 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she determines that one of the paragraphs of subsection (1) applies.

(5) Whenever the provost marshal gives an authorisation under subsection (3) or (4), he or she shall, in relation to an item of forensic evidence taken from, or a photograph taken of, a person to whom the authorisation concerned relates, cause the person to be informed by notice in writing that the authorisation has been given under subsection (3) or (4), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (6).

(6) The person to whom the authorisation concerned relates may, within the period of 3 months from the date of the notice under subsection (5) concerned, appeal to the summary court-martial against that authorisation.

(7) An appeal under subsection (6) shall—

(a) be on notice to the provost marshal, and

(b) be heard otherwise than in public.

(8) If, on an appeal under subsection (6), the summary court-martial—

(a) confirms the authorisation concerned, or

(b) allows the appeal,

the provost marshal shall give effect to the decision of the summary court-martial.

(9) Nothing in this section shall—

(a) prevent or restrict the exercise of powers conferred by section 34 , or

(b) pending the conclusion of proceedings under this section, prevent or restrict the use of the item of forensic evidence or photograph concerned for the purposes of—

(i) this Act,

(ii) an investigation into an alleged offence against military law, or

(iii) other proceedings.