UK Offence Report

Amendments to the 2009 Order

article 2(2)(c) of The Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2013

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

“qualifying service offence” means— an offence under section

42 of the Act for which the corresponding offence under the law of England and Wales is an offence within the meaning of section 65A of the 1984 Act; an offence under section 11(1) of the Act (using violence against

a superior officer); an offence under section

39 of the Act of attempting to commit an offence within sub-paragraph (b); or an offence under section

40 of the Act of encouraging or assisting the commission of an offence within sub-paragraph (b);

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
an superior officer
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that an superior officer meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 2(2)(c)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2013.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to section 42 of the Act.

penalty is that of the referenced enactment; not stated in this instrument.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
6 October 2013
In force from
31 October 2013
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

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.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person “commits an offence”; the provision says an offence is committed “if” something happens
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source