Retention of material
5.—(1) The investigator must retain material obtained in a service investigation which may be relevant to the investigation. Material may at any time be photographed, video-recorded, captured digitally or otherwise retained in the form of a copy rather than the original, if—
(a)the original is perishable,
(b)the original was supplied to the investigator rather than generated by him and is to be returned to its owner, or
(c)the retention of a copy rather than the original is reasonable in all the circumstances.
(2) Where material has been seized by a service policeman in exercise of any power of seizure conferred by or under Part 2 of the Armed Forces Act 2001(1), the duty to retain it under the Code is subject to the provisions on the retention of seized material in article 17 of the Armed Forces (Entry, Search and Seizure) Order 2003(2).
(3) If the officer in charge of a service investigation becomes aware as a result of developments in the case that material previously examined but not retained (because it was not thought to be relevant) may now be relevant to the investigation, he should, wherever practicable, take steps to obtain it or ensure that it is retained for further inspection or for production in court if required.
(4) The duty to retain material includes in particular the duty to retain material falling into the following categories, where it may be relevant to the investigation:
(a)crime reports (including crime report forms, relevant parts of incident report books, including Daily Occurrence Books, or service policemen’s notebooks);
(b)arrest and custody records (including all written records relating to custody and produced by service policemen or other service personnel);
(c)records which are derived from tapes of telephone messages containing descriptions of an alleged offence or offender;
(d)final versions of witness statements (and draft versions where their content differs from the final version), including any exhibits mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required);
(e)interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
(f)communications between the police and experts such as forensic scientists, reports of work carried out by experts, and schedules of scientific material prepared by the expert for the investigator, for the purposes of proceedings before a service court;
(g)records of the first description of a suspect by each potential witness who purports to identify or describe the suspect, whether or not the description differs from subsequent descriptions by that witness or other witnesses.
(5) The duty to retain material which may be relevant to the investigation also includes in particular the duty to retain material which may satisfy the test for prosecution disclosure in the Application Order, such as:
(a)information provided by an accused person which indicates an explanation for the offence with which he has been charged;
(b)any material casting doubt on the reliability of a confession;
(c)any material casting doubt on the reliability of a witness.
(6) The duty to retain material falling into these categories does not extend to items which are purely ancillary to such material and possess no independent significance (for example, duplicate copies of records or reports).
(7) All material which may be relevant to the service investigation must be retained until a decision is taken whether to institute proceedings against a person for a service offence.
(8) If a service investigation results in proceedings being instituted, all material which may be relevant must be retained at least until the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.
(9) Where the accused is convicted, all material which may be relevant must be retained at least until:
(a)the convicted person is released from custody, or discharged from hospital, in cases where the court imposes a custodial sentence or a hospital order;
(b)six months from the date of conviction, in all other cases.
If the service court imposes a custodial sentence or hospital order and the convicted person is released from custody or discharged from hospital earlier than six months from the date of conviction, all material which may be relevant must be retained at least until six months from the date of conviction.
(10) If an appeal against conviction is in progress when the release or discharge occurs, or at the end of the period of six months specified in paragraph 5(9), all material which may be relevant must be retained until the appeal is determined.
2001 c.19. Powers of seizure under the Armed Forces Act 2001 are conferred by the Armed Forces (Entry, Search and Seizure) Order 2003 (SI 2003/2273), amended by the Armed Forces (Entry, Search and Seizure) (Amendment) Order 2006 (SI 2006/3244).
SI 2003/2273, amended by SI 2006/3244.