Defence Forces (Evidence) Act 2022
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Extension of retention period under section 47 for intimate samples and non-intimate samples in certain circumstances | ||
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48. (1) An intimate sample or a non-intimate sample taken from a person shall not be destroyed under section 47 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 relevant offence concerned in connection with which the sample concerned was taken; | ||
(b) the investigation of that relevant offence has not been concluded; | ||
(c) the sample concerned, and the results of any forensic testing 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 relevant 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 sample concerned in connection with the investigation of the relevant offence concerned taking account of all the circumstances of the case and the reasons why— | ||
(i) proceedings for that offence against military law 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 relevant offence concerned. | ||
(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 relevant offence concerned in connection with which the sample concerned was taken from him or her; | ||
(b) the nature and seriousness of that relevant offence; | ||
(c) any other matter that the provost marshal considers appropriate for the purposes of the determination. | ||
(3) If, in relation to an intimate sample or a non-intimate sample taken from a person, the provost marshal determines that one of the paragraphs of subsection (1) applies, then, he or she may, during the retention period referred to in section 47 , 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 intimate sample or a non-intimate sample taken from a person to whom the authorisation concerned relates, cause the person from whom the sample concerned was taken 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 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 10 or 11 , or | ||
(b) pending the conclusion of proceedings under this section, prevent or restrict the use of the sample concerned for the purposes of— | ||
(i) this Act, | ||
(ii) an investigation into an alleged offence against military law, or | ||
(iii) other proceedings. |