The Criminal Procedure and Investigations Act 1996 (Code of Practice) (Armed Forces) Order 2008

Acts of Parliament

Criminal Law

Crown Copyright Acknowledged

STATUTORY INSTRUMENTS

The Criminal Procedure and Investigations Act 1996 (Code of Practice) (Armed Forces) Order 2008


	Made		7th March 2008
	Laid before Parliament		11th March 2008
	Coming into force		1st April 2008

The Secretary of State makes the following Order in exercise of the powers conferred by section 78(2)(b) of the Criminal Procedure and Investigations Act 1996(1):

1-	Citation, commencement and interpretation

	(1)	This Order may be cited as the Criminal Procedure and Investigations Act 1996 (Code of Practice) (Armed Forces) Order 2008 and shall come into force on 1st April 2008.
	(2)	In this Order—

		(a)	“the Code” means the code of practice set out in the Schedule;
		(b)	“material” means material of all kinds, including information and objects;
		(c)	“service court” means a court-martial under any of the Service Discipline Acts or a Standing Civilian Court;

		(d)	“Service Discipline Acts” means the Army Act 1955(2), the Air Force Act 1955(3) and the Naval Discipline Act 1957(4);
		(e)	“service investigation” means an investigation conducted by a service policeman with a view to it being ascertained—

			(i)	whether a person should be charged with a service offence, or
			(ii)	whether a person charged with a service offence is guilty of it;

		(f)	“service offence” means an offence under a provision of any of the Service Discipline Acts; and
		(g)	“service police force” means the Royal Navy Police, the Royal Military Police or the Royal Air Force Police.

(3)

In this Order—

		(a)	subject to sub-paragraphs (b) and (c), “service policeman” means a member of a service police force;
		(b)	a Provost Marshal is to be taken to be a member of the appropriate service police force (if he is not a member of that force);
		(c)	an officer in the Royal Air Force or the Royal Auxiliary Air Force who is appointed to exercise functions conferred by or under the Air Force Act 1955 on service policemen is to be taken to be a member of the Royal Air Force Police.

2-	Code of practice
	The Code shall have effect in relation to service investigations which begin on or after 1st April 2008.
2-	Effect of the Code
	The Code shall have effect in relation to service investigations which begin on or after 1st April 2008.
3-	A failure by a service policeman to comply with any provision of the Code shall not in itself render him liable to proceedings for a service offence.
4-	In all proceedings before a service court the Code shall be admissible in evidence.
5-	If it appears to a service court conducting proceedings that—

		(a)	any provision of the Code, or
		(b)	any failure by a service policeman,
			is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question.

6-	Common law rules as to service investigations

(1)

Where the Code applies in relation to a suspected or alleged service offence, the rules of common law which—

		(a)	were effective immediately before 1st April 2008, and
		(b)	relate to the matter mentioned in paragraph (2),
			shall not apply in relation to the suspected or alleged service offence,

	(2)	The matter is the revealing of material by a service policeman charged with the duty of conducting a service investigation to a person involved in the prosecution service offences.

	Signatory text
	7th March 2008	Derek Twigg Parliamentary Under Secretary of State Ministry of Defence

SCHEDULE

Article 2

CODE OF PRACTICE

	Preamble
	This code of practice (“the Code”) is made under article 2 of the Criminal Procedure and Investigations Act 1996 (Code of Practice) (Armed Forces) Order 2008. It sets out the manner in which service policemen are to record, retain and reveal to the prosecutor material obtained in service investigations which may be relevant to the investigation, and related matters.
1-	Introduction

	(1)	The Code applies in respect of service investigations conducted by service policemen which begin on or after 1st April 2008.
	(2)	Nothing in the Code applies to material intercepted in obedience to a warrant issued under section 5 of the Regulation of Investigatory Powers Act 2000(5), or to any copy, as defined in section 15 of that Act, of that material.

2-	Interpretation

(1)

In the Code—

		(a)	“disclosure of material” to an accused includes disclosure of material to his legal representative;
		(b)	“disclosure officer” means the service policeman responsible for—

			(i)	examining material retained by a service police force during the service investigation,
			(ii)	revealing material to the prosecutor during the service investigation and any proceedings in a service court resulting from it, and
			(iii)	certifying that he has done this;

		(c)	“investigator” means any service policeman involved in the conduct of a service investigation. All investigators have a responsibility for carrying out the duties imposed on them under the Code, including in particular recording information and retaining records of information and other material.
		(d)	“judicial officer” means—

			(i)	where the accused is to be tried by a court-martial under the Army Act 1955, a judicial officer appointed under section 75L of that Act;
			(ii)	where the accused is to be tried by a court-martial under the Air Force Act 1955, a judicial officer appointed under section 75L of that Act;

			(iii)	where the accused is to be tried by a court-martial under the Naval Discipline Act 1957, a judicial officer appointed under section 47M of that Act;
			(iv)	where the accused is to be tried by a Standing Civilian Court, a person appointed to sit as a magistrate under section 6(4) of the Armed Forces Act 1976(6),

			(v)	during the trial of an accused before a court-martial, the judge advocate appointed under section 84B(1) of the Army Act 1955, section 84B(1) of the Air Force Act 1955, or section 53B(1) of the Naval Discipline Act 1957 (as the case may be); and
			(vi)	during the trial of an accused before a Standing Civilian Court the person referred to in sub-paragraph (iv) before whom the trial is proceeding;

		(e)	“legal representative” means in relation to an accused a person appointed by him as his legal representative, who—

			(i)	has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990(7);
			(ii)	is an advocate or solicitor in Scotland;

			(iii)	is a member of the bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland; or
			(iv)	has in any of the Channel Islands, the Isle of Man, a Commonwealth country or a British overseas territory, rights and duties similar to those of a barrister or solicitor in England and Wales and is subject to punishment or disability for breaching professional rules;

		(f)	“material” means material of any kind, including information and objects; this includes not only material coming into the possession of the investigator, such as documents seized in the course of a search of premises, but also material generated by him such as records of interview;
		(g)	“officer in charge of an investigation” is the service policeman responsible for directing a service investigation. He is also responsible for ensuring that proper procedures are in place for recording information and retaining records of information and other material in the investigation;
		(h)	“prosecutor” means—

			(i)	subject to (ii) to (iv), a prosecuting authority under any of the Service Discipline Acts;
			(ii)	where the accused is charged with an offence under the Army Act 1955, the prosecuting authority under section 83A of that Act;

			(iii)	where the accused is charged with an offence under the Air Force Act 1955, the prosecuting authority under section 83A of that Act;
			(iv)	where the accused is charged with an offence under the Naval Discipline Act 1957, the prosecuting authority under section 52H of that Act;

		(i)	“prosecution disclosure” refers to the duty of the prosecutor under articles 4 and 13 of the Application Order to disclose material which is in his possession or which he has inspected in pursuance of the Code and which might reasonably be considered capable of undermining the case against the accused or of assisting the case for the accused;
		(j)	“service court” means a court-martial under any of the Service Discipline Acts or a Standing Civilian Court;
		(k)	“service investigation” means an investigation conducted by a service policeman with a view to it being ascertained—

			(i)	whether a person should be charged with a service offence, or
			(ii)	whether a person charged with a service offence is guilty of it;

		(l)	“service offence” means an offence under a provision of any of the Service Discipline Acts;
		(m)	“service police force” means the Royal Navy Police, the Royal Military Police or the Royal Air Force Police; and
		(n)	“the Application Order” means the Criminal Procedure and Investigation Act 1996 (Application to the Armed Forces) Order 2008(8).

(2)

In the Code—

		(a)	subject to paragraphs (b) and (c), “service policeman” means a member of a service police force;
		(b)	a Provost Marshal is to be taken to be a member of the appropriate service police force (if he is not a member of that force);
		(c)	an officer in the Royal Air Force or the Royal Auxiliary Air Force who is appointed to exercise functions conferred by or under the Air Force Act 1955 on service policemen is to be taken to be a member of the Royal Air Force Police.

	(3)	References in the Code to material which “may be relevant to a service investigation” are references to where, in relation to any material, it appears to an investigator or the officer in charge of the investigation or to the disclosure officer that it has some bearing on any service offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.
	(4)	In the Code material is “sensitive” if the disclosure officer believes that its disclosure would give rise to a real risk of serious prejudice to an important public interest.

3-	General responsibilities

	(1)	The functions of the investigator, the officer in charge of a service investigation and the disclosure officer are separate. Whether they are undertaken by one, two or more persons will depend on the complexity of the case and the administrative arrangements within each service police force. Where they are undertaken by more than one person, close consultation between them is essential to the effective performance of the duties imposed by the Code.
	(2)	In any service investigation, one or more deputy disclosure officers may be appointed to assist the disclosure officer, and a deputy disclosure officer may perform any function of a disclosure officer.

	(3)	The Provost Marshal of each of the service police forces is responsible for putting in place arrangements to ensure that in every service investigation the identity of the officer in charge of the investigation and the disclosure officer is recorded. The Provost Marshals shall ensure that disclosure officers and deputy disclosure officers have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge their functions effectively. An individual must not be appointed as disclosure officer, or continue in that role, if that is likely to result in a conflict of interest, for instance, if the disclosure officer is the victim of the alleged offence which is the subject of the service investigation. The advice of a more senior officer must always be sought if there is doubt as to whether a conflict of interest precludes an individual acting as disclosure officer. If thereafter the doubt remains, the advice of a prosecutor should be sought.
	(4)	The officer in charge of a service investigation may delegate tasks to another investigator, to other persons employed in support of the service police or to other persons participating in the investigation under arrangements for joint investigations, but he remains responsible for ensuring that these have been carried out and for accounting for any general policies followed in the investigation. In particular, it is an essential part of his duties to ensure that all material which may be relevant to a service investigation is retained, and either made available to the disclosure officer or (in exceptional circumstances) revealed directly to the prosecutor.

	(5)	In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. For example, where material is held on computer, it is a matter for the investigator to decide how many of the files on the computer it is reasonable to inquire into, and in what manner.
	(6)	If the officer in charge of a service investigation believes that other persons may be in possession of material that may be relevant to the investigation, and if this has not been obtained, he should ask the disclosure officer to inform them of the existence of the investigation and to invite them to retain the material in case they receive a request for its disclosure. The disclosure officer should inform the prosecutor that they may have such material. However, the officer in charge of a service investigation is not required to make speculative enquiries of other persons; there must be some reason to believe that they may have relevant material. That reason may come from information provided to the police by the accused or from other inquiries made or from some other source.
	(7)	If, during a service investigation, the officer in charge of the investigation or disclosure officer for any reason no longer has responsibility for the functions falling to him, either his officer commanding or the officer in charge of service investigations for the service police force concerned must assign someone else to assume that responsibility. That person’s identity must be recorded, as with those initially responsible for these functions in each investigation.

4-	Recording of information

	(1)	If material which may be relevant to the service investigation consists of information which is not recorded in any form, the officer in charge of the investigation must ensure that it is recorded in a durable or retrievable form (whether in writing, on video or audio tape, or on computer disk).
	(2)	Where it is not practicable to retain the initial record of information because it forms part of a larger record which is to be destroyed, its contents should be transferred as a true record to a durable and more easily-stored form before that happens.

	(3)	Negative information is often relevant to an investigation. If it may be relevant it must be recorded. An example might be a number of people present in a particular place at a particular time who state that they saw nothing unusual.
	(4)	Where information which may be relevant is obtained, it must be recorded at the time it is obtained or as soon as practicable after that time. The requirement to record information promptly does not require an investigator to take a statement from a potential witness where it would not otherwise be taken.