Defence Forces (Evidence) Act 2022

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Extension of retention period under section 51 for certain DNA profiles in reference (Military Police) index of DNA (Military Police) Database System in certain circumstances

52. (1) A DNA profile of a person in the reference (Military Police) index of the DNA (Military Police) Database System shall not be removed from that System under section 51 in any case in which the provost marshal determines that it is necessary to retain the DNA profile in that index of that System to assist in the investigation or prosecution of a relevant offence.

(2) The provost marshal may determine under subsection (1) that the DNA profile of a person shall be retained in the reference (Military Police) index of the DNA (Military Police) Database System in either of the following circumstances:

(a) in relation to the investigation of the relevant offence concerned in connection with which the sample concerned was taken from the person (from which his or her DNA profile was generated)—

(i) a decision whether or not to institute proceedings against the person for that offence has not been taken, or

(ii) the investigation of that offence has not been concluded;

(b) having regard to the matters specified in subsection (3), the provost marshal believes it is necessary to do so 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 him or her being convicted of the relevant offence concerned.

(3) The matters referred to in subsection (2)(b) 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 (from which his or her DNA profile was generated);

(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.

(4) Subject to subsection (7), if, in relation to the DNA profile of a person, the provost marshal makes a determination under subsection (1) on the basis that subsection (2)(a) applies, he or she may, during the retention period referred to in section 51 , give an authorisation to extend that period by a period of 12 months.

(5) Subject to subsection (7), the provost marshal may, while an authorisation under subsection (4) 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 not more than 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she makes a determination under subsection (1) on the basis that subsection (2)(a) applies.

(6) Subject to subsection (7), the provost marshal may, while an authorisation under subsection (4) or (5), 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 further period commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she makes a determination under subsection (1) on the basis that subsection (2)(b) applies.

(7) An authorisation under subsection (4), (5) or (6) may not be given if to do so would involve the retention of the DNA profile of the person concerned for a period of more than 6 years from—

(a) the date of the taking of the sample concerned from the person, or

(b) if appropriate, the date on which that sample is deemed under section 55 to have been taken from him or her,

whichever is the later.

(8) Subject to subsection (9), if, in relation to the DNA profile of a person, the provost marshal makes a determination under subsection (1) on the basis that subsection (2)(b) applies, he or she may, during the retention period referred to in section 51 ,give an authorisation to extend that period.

(9) An authorisation under subsection (8) may extend the retention period referred to in section 51 for no longer than, in the case of any person, a period of 6 years from—

(a) the date of the taking of the sample concerned from the person, or

(b) if appropriate, the date on which that sample is deemed under section 55 to have been taken from him or her,

whichever is the later.

(10) Whenever the provost marshal gives an authorisation under subsection (4), (5), (6) or (8), he or she shall, in relation to the DNA profile of the 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 (4), (5), (6) or (8), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (11).

(11) The person to whom the authorisation concerned relates may, within the period of 3 months from the date of the notice under subsection (10) concerned, appeal to the summary court-martial against that authorisation.

(12) An appeal under subsection (11) shall—

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

(b) be heard otherwise than in public.

(13) If, on an appeal under subsection (11), 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.

(14) Nothing in this section shall—

(a) prevent or restrict the exercise of powers conferred by section 9 , 10 or 11 , or

(b) pending the conclusion of proceedings under this section, prevent or restrict the use of the DNA profile concerned for the purposes of—

(i) this Act,

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

(iii) other proceedings.