The Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2013

EXPLANATORY NOTE

(This note is not part of the Order)

Chapter 1 of Part 1 of the Protection of Freedoms Act 2012 amends Part 5 of the Police and Criminal Evidence Act 1984 to replace the existing provisions governing the retention and destruction of fingerprints, footwear impressions and DNA samples and profiles taken by the civilian police in the course of a criminal investigation.

This Order makes equivalent provision, subject to modifications, in respect of the investigation of service offences under the Armed Forces Act 2006. It does so by amending the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 (“the 2009 Order”).

Article 2(4) substitutes article 15 of, and inserts new articles 15A to 15N into, the 2009 Order.

New article 15 requires a DNA profile derived from a DNA sample obtained from a person in connection with the investigation of a service offence and retained under any power conferred by the 2009 Order to be recorded on the National DNA Database.

New article 15A sets out the basic requirements for the destruction of fingerprints and DNA profiles (“article 15A material”) obtained from a person in connection with the investigation of a service offence.

New article 15B enables article 15A material obtained from a person in connection with the investigation of a service offence to be retained until the conclusion of the investigation by the service police or, where legal proceedings are instituted against the person, until the conclusion of those proceedings.

New article 15C provides for the further retention of article 15A material taken from persons who are arrested for or charged with certain serious offences but not subsequently convicted.

New article 15D provides for the further retention of article 15A material taken from persons who are arrested for or charged with certain less serious service offences but not subsequently convicted.

New article 15E provides for the further retention of article 15A material taken from persons who are convicted of recordable service offences. New article 15F makes an exception to new article 15E in relation to persons who are convicted of a first minor service offence, committed when they were under the age of 18.

New article 15G provides for the retention of article 15A material that has been given voluntarily.

New article 15H provides for the retention of article 15A material which would otherwise fall to be destroyed, if the person to whom the material relates consents.

Under new article 15I, where a person arrested for one service offence is subsequently arrested for, charged with or convicted of a second, unrelated service offence, the retention of that person’s article 15A material will be governed by the rules applicable to the second offence.

New article 15J provides that all copies of fingerprints and DNA profiles held by the service police must be destroyed when the obligation to destroy material set out in new article 15A applies.

New article 15K makes provision for the destruction of samples obtained from a person in connection with the investigation of a service offence.

New article 15L governs the retention and destruction of impressions of footwear obtained from a person in connection with the investigation of a service offence.

New article 15M restricts the use to which retained fingerprints, DNA and other samples, DNA profiles and footwear impressions may be put.

Paragraph (1) of new article 15N makes provision so that article 15A material and article 15K samples need not be destroyed where such material or samples may fall to be disclosed under an order made under section 78 of the Criminal Procedure and Investigations Act 1996 or an attendant Code of Practice.

Paragraph (4) of new article 15N makes provision so that article 15A material need not be destroyed where it relates to a person other than the person from whom it was taken. This would apply, for example, to material transferred in the course of a physical encounter, such as an assault, where one party’s DNA or saliva is recovered from the other party.

Article 2(5)(a) inserts new paragraph 5A into Schedule 2 to the 2009 Order (Transitional provisions), so that the specified offences under former legislation governing the armed forces are “qualifying service offences” for the purposes of the Order.

Article 2(5)(b) amends paragraph 17 of Schedule 2 to the 2009 Order to provide for the destruction or retention of fingerprints, DNA and other samples, DNA profiles and footwear impressions taken before this Order comes into force (“legacy material”). The period for which legacy material may be retained and used is calculated in the same way as for material taken after this Order comes into force save that, where a period calculated in this way would end on a date before the end of 31st October 2013, article 2(5)(b) makes provision so that such material may be retained or used until the end of 31st October 2013.