Prisons and Courts Bill (HC Bill 170)

6 Investigations of deaths following release etc

(1) This section applies where—

(a) the Ombudsman becomes aware that a person has died—

(i) after ceasing to be detained or resident in a criminal justice
5institution in England or Wales,

(ii) after ceasing to be detained or resident in a secure children’s
home in England or Wales, or

(iii) after ceasing to be detained in an immigration detention facility
or under immigration escort arrangements; and

(b) 10the Ombudsman has reason to believe that the person’s death may in
some way be connected with his or her detention or residence there.

(2) The Ombudsman may investigate the person’s death.

(3) It is for the Ombudsman to decide on the appropriate extent of any
investigation and how it is to be carried out.

7 15Deaths occurring in Scotland: role of Lord Advocate

Nothing in section 5 or 6 affects the position of the Lord Advocate as head of
the system of investigation of deaths in Scotland.

8 Reports on deaths investigated by the Ombudsman

(1) The Ombudsman must produce a written report in relation to each death that
20the Ombudsman investigates under section 5 or 6.

(2) The report may include recommendations to—

(a) the relevant authority,

(b) the Secretary of State, or

(c) any other person.

(3) 25The Ombudsman must—

(a) provide a copy of the report to the relevant authority and the Secretary
of State, and

(b) publish the report, to the extent that the Ombudsman considers this
appropriate.

(4) 30The Ombudsman may give a copy of the report to such other persons as the
Ombudsman considers appropriate.

(5) Where a report includes recommendations—

(a) in the case of a report relating to the death of a person detained or
resident in a secure children’s home, the person in charge of the home
35must give the Ombudsman a written response to the
recommendations;

(b) in any other case, the Secretary of State must give the Ombudsman a
written response to the recommendations.

(6) The response must be given in the form, and within the period, specified by the
40Ombudsman.

(7) The Ombudsman may publish a response to recommendations, to the extent
that the Ombudsman considers this appropriate.

(8) In this section, “the relevant authority” means—

(a) where the report relates to the death of a person who was or had been
detained or resident in a criminal justice institution, the person in
charge of the institution;

(b) 5where the report relates to the death of a person who was or had been
detained or resident in a secure children’s home, the person in charge
of the home;

(c) where the report relates to the death of a person who was or had been
detained in an immigration detention facility, the person in charge of
10the facility;

(d) where the report relates to the death of a person who was or had been
detained under immigration escort arrangements, the person in charge
of the arrangements.

9 Investigation of complaints by the Ombudsman

(1) 15In this section, “eligible complainant” means a person who is or has been—

(a) detained in England or Wales in a prison, a young offender institution,
a secure training centre or a secure college,

(b) subject to probation supervision in England or Wales when aged 18 or
above, or

(c) 20detained in an immigration detention facility or under immigration
escort arrangements,

and includes a person complaining on behalf of a person mentioned in
paragraph (a), (b) or (c), where that person is unable to make a complaint
himself or herself.

(2) 25Where an eligible complainant has exhausted the internal complaints
procedure that applies in relation to his or her detention or probation
supervision (or is unable to use the internal complaints procedure), he or she
may make a complaint to the Ombudsman.

(3) It is for the Ombudsman to decide whether to investigate a complaint, and, if
30so, the appropriate extent of the investigation and how it is to be carried out.

(4) The Secretary of State may make regulations about complaints to the
Ombudsman under this section, which may include provision about—

(a) the types of complaints that the Ombudsman may or may not
investigate;

(b) 35the procedure for making a complaint (including time limits);

(c) the investigation by the Ombudsman of complaints;

(d) what the Ombudsman is to do after investigating a complaint.

(5) The regulations may confer functions (including duties) on—

(a) the Ombudsman,

(b) 40a person in charge of a criminal justice institution, an immigration
detention facility or immigration escort arrangements,

(c) any person who has functions in relation to probation supervision,

(d) the Secretary of State, or

(e) any other person.

(6) 45Regulations under this section are subject to affirmative resolution procedure.

10 Reports on complaints investigated by the Ombudsman

(1) The Ombudsman may produce a written report in relation to a complaint the
Ombudsman investigates under section 9.

(2) The report may include recommendations to—

(a) 5the relevant authority,

(b) the Secretary of State, or

(c) any other person.

(3) Where the report includes recommendations, the Ombudsman must provide a
copy of the report to the relevant authority and the Secretary of State.

(4) 10The Ombudsman may—

(a) give a copy of the report to such other persons as the Ombudsman
considers appropriate;

(b) publish the report, to the extent that the Ombudsman considers this
appropriate.

(5) 15Where the report includes recommendations, the Secretary of State must give
the Ombudsman a written response to the recommendations.

(6) That response must be given in the form, and within the period, specified by
the Ombudsman.

(7) In this section, “the relevant authority” means—

(a) 20where the report relates to a complaint from a person detained in a
prison, a young offender institution, a secure training centre or a secure
college, the person in charge of that institution;

(b) where the report relates to a complaint from a person subject to
probation supervision, the person in charge of that supervision;

(c) 25where the report relates to a complaint from a person detained in an
immigration detention facility, the person in charge of that facility;

(d) where the report relates to a complaint from a person detained under
immigration escort arrangements, the person in charge of those
arrangements.

11 30Other investigations and reports

(1) The Secretary of State may request the Ombudsman to carry out an
investigation relating to—

(a) detention or residence in criminal justice institutions in England and
Wales,

(b) 35detention in immigration detention facilities,

(c) detention under immigration escort arrangements, or

(d) probation services in England and Wales.

(2) The Ombudsman may produce a written report following an investigation
under subsection (1), and may publish such a report to the extent that the
40Ombudsman considers this appropriate.

(3) The Ombudsman may produce reports on patterns and themes identified from
the exercise of the Ombudsman’s other functions.

(4) Reports under subsection (3) may be produced and published in such a
manner as the Ombudsman considers appropriate.

12 Power to enter premises

(1) The Ombudsman may enter—

(a) any criminal justice institution in England or Wales;

(b) any secure children’s home in England;

(c) 5any immigration detention facility;

(d) any vehicle used to transport a person detained or resident in a criminal
justice institution in England or Wales;

(e) any vehicle used to transport a person under immigration escort
arrangements.

(2) 10But before exercising the power conferred by subsection (1) in relation to a
court or accommodation provided by a court, the Ombudsman must notify the
Lord Chief Justice (or a person nominated by the Lord Chief Justice).

13 Powers to require information

(1) The Ombudsman may require any person who holds relevant information—

(a) 15to allow the Ombudsman access to any of the information;

(b) to give the Ombudsman—

(i) any of the information,

(ii) a copy of any of the information (in a form specified by the
Ombudsman), or

(iii) 20an explanation of any of the information.

(2) But before requiring information which—

(a) is held by a judicial office holder, or

(b) forms part of the court record,

the Ombudsman must obtain the consent of the Lord Chief Justice (or a person
25nominated by the Lord Chief Justice).

(3) The Ombudsman may not require the disclosure of information under this
section if the information—

(a) might incriminate the person disclosing it,

(b) is an item subject to legal privilege, or

(c) 30is intelligence service information.

(4) The Ombudsman may require a person in charge of a criminal justice
institution in England or Wales, a secure children’s home in England or an
immigration detention facility to allow the Ombudsman to communicate
privately with any person who—

(a) 35is detained or resident there, or

(b) is employed or otherwise working there,

(but this subsection does not impose any obligation on a person to
communicate privately with the Ombudsman).

(5) The Ombudsman may require a person in charge of probation supervision to
40allow the Ombudsman to communicate privately with any person who—

(a) is subject to the probation supervision, or

(b) is employed or otherwise working to provide the probation
supervision,

(but this subsection does not impose any obligation on a person to
45communicate privately with the Ombudsman).

(6) The Ombudsman must make arrangements under which a person can make
representations to the Ombudsman about any requirement imposed on the
person under subsection (1), (4) or (5).

(7) A disclosure of information to the Ombudsman in accordance with this section
5does not breach—

(a) any obligation of confidence owed by any person, or

(b) any other restriction on the disclosure of information (however
imposed).

(8) But nothing in this section authorises any disclosure of information which—

(a) 10contravenes the Data Protection Act 1998, or

(b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016.

(9) In this section—

• the “court record” comprises information contained in—

  (a)

  15any document filed with, or otherwise placed in the custody of,
  a court for the purposes of proceedings in a particular cause or
  matter, or

  (b)

  any document created by a court or a member of the
  administrative staff of a court for the purposes of proceedings
  20in a particular cause or matter;

• “information” includes any recording of an image or sound;

• “intelligence service information” means information held by, obtained
  (directly or indirectly) from, or that relates to—

  (a)

  the Security Service,

  (b)

  25the Secret Intelligence Service,

  (c)

  GCHQ (within the meaning of section 3 of the Intelligence
  Services Act 1994), or

  (d)

  any part of Her Majesty’s forces, or the Ministry of Defence,
  which engages in intelligence activities;

• 30“item subject to legal privilege”—

  (a)

  in England and Wales has the meaning given by section 10 of
  the Police and Criminal Evidence Act 1984;

  (b)

  in Northern Ireland has the meaning given by Article 12 of the
  Police and Criminal Evidence (Northern Ireland) Order 1989
  35(S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12));

  (c)

  in Scotland has the meaning given by section 412 of the
  Proceeds of Crime Act 2002;

• “judicial office holder” has the meaning given by section 109(4) of the
  Consitutional Reform Act 2005;

• 40“relevant information” means information that relates to—

  (a)

  the running of a criminal justice institution in England or Wales,

  (b)

  persons detained or resident in a criminal justice institution in
  England or Wales,

  (c)

  the running of a secure children’s home in England,

  (d)

  45persons detained or resident in a secure children’s home in
  England,

  (e)

  the running of an immigration detention facility or immigration
  escort arrangements,

  Prisons and Courts BillPage 15

  (f)

  persons detained in an immigration detention facility or under
  immigration escort arrangements,

  (g)

  the running of probation services in England or Wales, or

  (h)

  persons subject to probation supervision in England or Wales;

• 5a reference to communication between two persons is a reference to
  communication by any means (whether conducted face-to-face or
  otherwise);

• a reference to two persons communicating privately includes a reference
  to communication in the presence of, or with the participation of,
  10another person if the two persons agree to the other person’s presence
  or participation.

14 Obstruction

(1) The Ombudsman may certify to the High Court (or, in Scotland, the Court of
Session) that a person has, without lawful excuse, obstructed the Ombudsman
15in the exercise of a power conferred by section 12 or 13.

(2) The court may inquire into a certified obstruction.

(3) If the court is satisfied that the person carried out the certified obstruction, it
may deal with the person in any way in which it could deal with the person if
he or she had committed contempt in relation to the court.

(4) 20But before doing so, the court must hear—

(a) any witness on behalf of or against the person, and

(b) any statement in the person’s defence.

15 Relationship with criminal investigations and disciplinary proceedings

(1) Where, in the course of conducting an investigation, the Ombudsman comes
25across information that leads the Ombudsman to believe that it may be
appropriate for the police or another law enforcement agency to conduct a
criminal investigation, the Ombudsman must notify the police or law
enforcement agency.

(2) Where, in the course of conducting an investigation, the Ombudsman comes
30across information that leads the Ombudsman to believe that it may be
appropriate for a relevant authority or any other person to undertake any
disciplinary proceedings, the Ombudsman must notify the relevant authority
or other person.

(3) In this section “relevant authority” means the person in charge of a criminal
35justice institution, a secure children’s home, an immigration detention facility,
immigration escort arrangements or probation supervision.

16 Information sharing

(1) This section applies to information that the Ombudsman obtains in the course
of exercising the Ombudsman’s functions.

(2) 40If it appears to the Ombudsman to be appropriate to do so, the Ombudsman
may disclose information—

(a) to the police or another law enforcement agency for the purpose of
assisting them to conduct a criminal investigation;

(b) to a relevant authority or any other person for the purpose of assisting
the person to undertake disciplinary proceedings;

(c) to any other person who exercises functions of a public nature where
the Ombudsman considers that the person may need the information
5for the purposes of exercising his or her functions.

(3) A disclosure of information under subsection (2) does not breach—

(a) any obligation of confidence owed by the Ombudsman, or

(b) any other restriction on the disclosure of information (however
imposed), other than one mentioned in section 17 (restrictions on
10disclosure of information).

(4) Subsection (2) does not limit the powers which the Ombudsman otherwise has
to disclose information (whether to a person referred to in subsection (2) or to
any other person).

(5) In this section “relevant authority” means the person in charge of a criminal
15justice institution, a secure children’s home, an immigration detention facility,
immigration escort arrangements or probation supervision.

17 Restrictions on disclosure of information

(1) The Ombudsman must not disclose any information if the disclosure—

(a) would contravene the Data Protection Act 1998,

(b) 20is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016,

(c) would be against the interests of national security,

(d) could jeopardise the safety of any person, or

(e) could prejudice the prevention or detection of crime.

(2) 25The Ombudsman must not disclose intelligence service information (or the fact
that the Ombudsman is in possession of such information) without the consent
of the relevant authority.

(3) In this section—

• “GCHQ” has the same meaning as in the Intelligence Services Act 1994;

• 30“intelligence service information” means information obtained (directly
  or indirectly) from, or that relates to—

  (a)

  the Security Service,

  (b)

  the Secret Intelligence Service,

  (c)

  GCHQ, or

  (d)

  35any part of Her Majesty’s forces, or the Ministry of Defence,
  which engages in intelligence activities,

• “relevant authority” means—

  (a)

  in the case of information obtained from or relating to the
  Security Service, the Director-General of the Security Service;

  (b)

  40in the case of information obtained from or relating to the Secret
  Intelligence Service, the Chief of the Secret Intelligence Service;

  (c)

  in the case of information obtained from or relating to GCHQ,
  the Director of GCHQ;

  (d)

  in the case of information obtained from or relating to Her
  45Majesty’s forces or the Ministry of Defence, the Secretary of
  State.

18 Annual report

(1) As soon as practicable after the end of a financial year, the Ombudsman must
produce a report (an “annual report”) about the Ombudsman’s work in that
year.

(2) 5The Ombudsman must publish each annual report in the manner which the
Ombudsman considers appropriate.

(3) The Ombudsman must give a copy of each annual report to the Secretary of
State.

(4) The Secretary of State must lay a copy of each annual report before each House
10of Parliament.

(5) In this section, “financial year” means—

(a) the period beginning with the day on which this section comes into
force and ending with the following 31st March, and

(b) each successive period of 12 months.

19 15Secure children’s homes in Wales

(1) Section 5(3) (obligation to ensure death is notified to Ombudsman) does not
apply in relation to the person in charge of a secure children’s home in Wales.

(2) Where a report under section 8 (report on death) relating to the death of a
person detained or resident in a secure children’s home in Wales contains
20recommendations, subsection (5) of that section does not apply in relation to
the recommendations.

20 Sections 4 to 19: interpretation

(1) For the purposes of sections 4 to 19, each kind of institution specified in an
entry in the first column of the following table is a “criminal justice institution”,
25and the person specified in the corresponding entry in the second column is the
person “in charge of” an institution of that kind:

(2) But a court or accommodation provided by a court is only a criminal justice
institution for the purposes of sections 4 to 19 to the extent that it is used for the
detention of persons who have been sentenced to imprisonment or detention
or remanded in custody.

(3) 45For the purposes of subsection (1), an institution is “contracted-out” if—

(a) it is a contracted out prison within the meaning of Part 4 of the Criminal
Justice Act 1991 (see section 84(4) of that Act);

(b) it is a secure training centre that is provided or run in accordance with
a contract made under section 7 of the Criminal Justice and Public
50Order Act 1994.

(4) For the purposes of sections 4 to 19, “secure children’s home” means—

(a) in relation to England, accommodation which is provided in a
children’s home, within the meaning of the Care Standards Act 2000—

(i) which provides accommodation for the purposes of restricting
55liberty, and

(ii) in respect of which a person is registered under Part 2 of that
Act;

(b) in relation to Wales, premises at which a secure accommodation
service, within the meaning of the Regulation and Inspection of Social
60Care (Wales) Act 2016 (anaw 2), is provided by a person registered in
respect of that service under Chapter 2 of Part 1 of that Act.

and the person “in charge of” a secure children’s home is the person so
registered as the person carrying on the home.

(5) For the purposes of sections 4 to 19, each kind of facility specified in an entry
65in the first column of the following table is an “immigration detention facility”,
and the person specified in the corresponding entry in the second column is the
person “in charge of” the facility:

(6) Terms used in subsection (5) have the same meaning as in Part 8 of the
75Immigration and Asylum Act 1999 (see section 147 of that Act).

(7) For the purposes of sections 4 to 19—

• “immigration escort arrangements” means arrangements made under
  section 156 of the Immigration and Asylum Act 1999;

• the person “in charge of” immigration escort arrangements is the person
  80with whom the Secretary of State has made the arrangements under
  that section.

(8) For the purposes of sections 4 to 19—

• a person is subject to probation supervision if the person is subject to
  supervision or rehabilitation of the kind mentioned in section 1(1)(c) or
  85(e) of the Offender Management Act 2007;

Prisons and Courts BillPage 18

• the person “in charge of” probation supervision is the person who the
  Ombudsman considers is in charge of it.

Prison security

21 Interference with wireless telegraphy in prisons etc

(1) 5Section 1 of the Prisons (Interference with Wireless Telegraphy) Act 2012
(interference with wireless telegraphy in prisons etc) is amended as follows.

(2) After subsection (2) insert—

“(2A) The Secretary of State may authorise a public communications provider to
interfere with wireless telegraphy.

(2B) 10An interference with wireless telegraphy authorised under subsection
(2A) may be carried out only for the purpose of—

(a) preventing the use within a relevant institution in England and
Wales of an item specified in subsection (3), or

(b) detecting or investigating the use within a relevant institution
15in England and Wales of such an item.

(2C) An authorisation under subsection (2A) may be given in relation to—

(a) one or more relevant institutions in England and Wales,

(b) one or more kinds of relevant institution in England and Wales,
or

(c) 20relevant institutions in England and Wales generally.”

(3) In subsection (4), after “subsection (2)(b)” insert “or (2B)(b)”.

(4) Omit subsection (5).

(5) In subsection (6), for “The conduct to which subsection (5) applies is” substitute
“The following conduct is lawful for all purposes—”.

(6) 25After subsection (6) insert—

“(6A) The following conduct is lawful for all purposes—

(a) interference with wireless telegraphy that—

(i) is authorised under subsection (2A), and

(ii) is carried out in accordance with subsection (2B) and
30any direction given under section 2,

(b) the retention, use or disclosure of any traffic data, collected as a
result of such an interference with wireless telegraphy, which is
carried out in accordance with this Act.”

(7) Schedule 2 (interference with wireless telegraphy in prisons etc) has effect.

22 35Testing prisoners for psychoactive substances

(1) Section 16A of the Prison Act 1952 (testing prisoners for drugs) is amended in
accordance with subsections (2) to (4).

(2) In the heading, after “drugs” insert “and psychoactive substances”.

(3) In subsection (1), after “drug” insert “or psychoactive substance”.

(4) In subsection (3), after the definition of “prison rules” insert—

• “““psychoactive substance” has the same meaning as in the
  Psychoactive Substances Act 2016;”.

(5) In the Prison Rules 1999 (S.I. 1999/728S.I. 1999/728)—

(a) 5in rule 2 (interpretation), in paragraph (1), omit the definition of
“specified drug”;

(b) in rule 50 (compulsory testing for controlled drugs or specified
drugs)—

(i) in the heading, omit “or specified drugs”;

(ii) 10in paragraph (1), omit “or specified drug”;

(c) in rule 51 (offences against discipline), in paragraphs (9) and (24) omit
“or specified drug”;

(d) in rule 52 (defences to rule 51(9)), in sub-paragraphs (a), (b) and (c),
omit “or specified drug”.

(6) 15In the Young Offender Institution Rules 2000 (S.I. 2000/371S.I. 2000/371)—

(a) in rule 2 (interpretation), in paragraph (1), omit the definition of
“specified drug”;

(b) in rule 53 (compulsory testing for controlled drugs or specified
drugs)—

(i) 20in the heading, omit “or specified drugs”;

(ii) in paragraph (1), omit “or specified drug”;

(c) in rule 55 (offences against discipline), in paragraphs (10) and (27) omit
“or specified drug”;

(d) in rule 56 (defences to rule 55(10)), in sub-paragraphs (a), (b) and (c),
25omit “or specified drug”.

(7) The following instruments are revoked—

(a) Prison and Young Offender Institution (Amendment) Rules 2016 (S.I.
2016/583);

(b) Prison and Young Offender Institution (Amendment) (No. 2) Rules
302016 (S.I. 2016/945S.I. 2016/945).

Part 2 Procedures in civil, family and criminal matters

Conducting preliminary proceedings in writing: criminal courts

23 The written information procedure

(1) 35Criminal Procedure Rules are to include provision of the following kinds (the “written
information procedure”)—

(a) provision allowing persons charged with offences to choose to give specified
information to the court in writing;

(b) provision about the ways in which the court is to use information given in
40accordance with rules under paragraph (a).

(2) That provision is to be made only for the purpose of enabling the court to
receive, and use, information in connection with the management of criminal
proceedings.