PART 5 continued CHAPTER 4 continued
Contents page 1-9 10-19 20-28 30-39 40-49 50-59 60-69 70-79 80-88 90-99 100-109 110-119 120-129 130-139 140-149 150-159 160-169 170-179 180-188 Last page
Protection of Freedoms BillPage 80
(4)
Having done so, the relevant data controller must give notice to the person
who has the disregarded conviction or caution that the details of it have been
deleted.
(5) In this section—
-
5“delete”, in relation to such relevant official records as may be prescribed,
means record with the details of the conviction or caution concerned—(a)the fact that it is a disregarded conviction or caution, and
(b)the effect of it being such a conviction or caution,
-
“the names database” means the names database held by the National
10Policing Improvement Agency for the use of constables, -
“official records” means records containing information about persons
convicted of, or cautioned for, offences and kept by any court, police
force, government department or local or other public authority in
England and Wales for the purposes of its functions, -
15“prescribed” means prescribed by order of the Secretary of State,
-
“relevant data controller” means—
(a)in relation to the names database, any chief officer of police of a
police force in England and Wales who is a data controller in
relation to the details concerned,(b)20in relation to other relevant official records, such person as may
be prescribed, -
“relevant official records” means—
(a)the names database, and
(b)such other official records as may be prescribed.
(6) 25An order under this section—
(a) may make different provision for different purposes,
(b)
is to be made by statutory instrument which is subject to annulment in
pursuance of a resolution of either House of Parliament.
94 Effect of disregard for disclosure and other purposes
(1)
30A person who has a disregarded conviction or caution is to be treated for all
purposes in law as if the person has not—
(a) committed the offence,
(b) been charged with, or prosecuted for, the offence,
(c) been convicted of the offence,
(d) 35been sentenced for the offence, or
(e) been cautioned for the offence.
(2) In particular—
(a)
no evidence is to be admissible in any proceedings before a judicial
authority exercising its jurisdiction or functions in England and Wales
40to prove that the person has done, or undergone, anything within
subsection (1)(a) to (e), and
(b)
the person is not, in any such proceedings, to be asked (and, if asked, is
not to be required to answer) any question relating to the person’s past
which cannot be answered without acknowledging or referring to the
45conviction or caution or any circumstances ancillary to it.
Protection of Freedoms BillPage 81
(3)
Where a question is put to a person, other than in such proceedings, seeking
information with respect to the previous convictions, cautions, offences,
conduct or circumstances of any person—
(a)
the question is to be treated as not relating to any disregarded
5conviction or caution, or any circumstances ancillary to it (and the
answer to the question may be framed accordingly), and
(b)
the person questioned is not to be subjected to any liability or otherwise
prejudiced in law by reason of any failure to acknowledge or disclose
that conviction or caution or any circumstances ancillary to it in
10answering the question.
(4)
Any obligation imposed on any person by any enactment or rule of law or by
the provisions of any agreement or arrangement to disclose any matters to any
other person is not to extend to requiring the disclosure of a disregarded
conviction or caution or any circumstances ancillary to it.
(5)
15A disregarded conviction or caution, or any circumstances ancillary to it, is not
a proper ground for—
(a)
dismissing or excluding a person from any office, profession,
occupation or employment, or
(b)
prejudicing the person in any way in any office, profession, occupation
20or employment.
(6)
This section is subject to section 95 but otherwise applies despite any
enactment or rule of law to the contrary.
(7)
See also section 96 (meaning of “proceedings before a judicial authority” and
“circumstances ancillary to a conviction or caution”).
95 25Saving for Royal pardons etc.
Nothing in section 94 affects any right of Her Majesty, by virtue of Her Royal
prerogative or otherwise, to grant a free pardon, to quash any conviction or
sentence, or to commute any sentence.
96 Section 94: supplementary
(1)
30In section 94 “proceedings before a judicial authority” includes (in addition to
proceedings before any of the ordinary courts of law) proceedings before any
tribunal, body or person having power—
(a) by virtue of any enactment, law, custom or practice,
(b)
under the rules governing any association, institution, profession,
35occupation or employment, or
(c)
under any provision of an agreement providing for arbitration with
respect to questions arising under that agreement,
to determine any question affecting the rights, privileges, obligations or
liabilities of any person, or to receive evidence affecting the determination of
40any such question.
(2)
For the purposes of section 94, circumstances ancillary to a conviction are any
circumstances of—
(a) the offence which was the subject of the conviction;
(b) the conduct constituting the offence;
(c) 45any process or proceedings preliminary to the conviction;
Protection of Freedoms BillPage 82
(d) any sentence imposed in respect of the conviction;
(e)
any proceedings (whether by way of appeal or otherwise) for
reviewing the conviction or any such sentence;
(f)
anything done in pursuance of, or undergone in compliance with, any
5such sentence.
(3)
For the purposes of section 94, circumstances ancillary to a caution are any
circumstances of—
(a) the offence which was the subject of the caution;
(b) the conduct constituting the offence;
(c)
10any process preliminary to the caution (including consideration by any
person of how to deal with the offence and the procedure for giving the
caution);
(d)
any proceedings for the offence which take place before the caution is
given;
(e)
15anything which happens after the caution is given for the purpose of
bringing any such proceedings to an end;
(f) any judicial review proceedings relating to the caution;
(g)
in the case of a warning under section 65 of the Crime and Disorder Act
1998 (reprimands and warnings for persons aged under 18), anything
20done in pursuance of, or undergone in compliance with, a requirement
to participate in a rehabilitation programme under section 66(2) of that
Act.
Appeals and other supplementary provision
97 Appeal against refusal to disregard convictions or cautions
(1) 25The applicant may appeal to the High Court if—
(a)
the Secretary of State makes a decision of the kind mentioned in section
92(3)(b), and
(b) the High Court gives permission for an appeal against the decision.
(2)
On such an appeal, the High Court must make its decision only on the basis of
30the evidence that was available to the Secretary of State.
(3)
If the High Court decides that it appears as mentioned in condition A in section
90, it must make an order to that effect.
(4) Otherwise it must dismiss the appeal.
(5)
A conviction or caution to which an order under subsection (3) relates becomes
35a disregarded conviction or caution when the period of 14 days beginning with
the day on which the order was made has ended.
(6) There is no appeal from a decision of the High Court under this section.
98 Advisers
(1)
The Secretary of State may appoint persons to advise whether, in any case
40referred to them by the Secretary of State, the Secretary of State should decide
as mentioned in condition A in section 90.
Protection of Freedoms BillPage 83
(2)
The Secretary of State may disclose to a person so appointed such information
(including anything within section 92(1)(a) or (b)) as the Secretary of State
considers relevant to the provision of such advice.
(3)
The Secretary of State may pay expenses and allowances to a person so
5appointed.
99 Interpretation: Chapter 4
(1) In this Chapter—
-
“caution” means—
(a)a caution given to a person in England and Wales in respect of
10an offence which, at the time the caution is given, that person
has admitted, or(b)a reprimand or warning given under section 65 of the Crime
and Disorder Act 1998 (reprimands and warnings for persons
aged under 18), -
15“conviction” includes—
(a)a finding that a person is guilty of an offence in respect of
conduct which was the subject of service disciplinary
proceedings,(b)a conviction in respect of which an order has been made
20discharging the person concerned absolutely or conditionally,
and(c)a finding in any criminal proceedings (including a finding
linked with a finding of insanity) that a person has committed
an offence or done the act or made the omission charged, -
25“disregarded caution” is a caution which has become a disregarded
caution by virtue of this Chapter, -
“disregarded conviction” is a conviction which has become a disregarded
conviction by virtue of this Chapter, -
“document” includes information recorded in any form and, in relation to
30information recorded otherwise than in legible form, references to its
provision or production include providing or producing a copy of the
information in legible form, -
“information” includes documents,
-
“notice” means notice in writing,
-
35“official records” has the meaning given by section 93(5),
-
“sentence” includes—
(a)any punishment awarded, and
(b)any order made by virtue of Schedule 5A to the Army Act 1955,
Schedule 5A to the Air Force Act 1955 or Schedule 4A to the
40Naval Discipline Act 1957,in respect of a finding that a person is guilty of an offence in respect of
conduct which was the subject of service disciplinary proceedings, -
“service disciplinary proceedings” means any proceedings (whether in
England and Wales or elsewhere)—(a)45under the Naval Discipline Act 1866, the Army Act 1881, the Air
Force Act 1917, the Army Act 1955, the Air Force Act 1955 or the
Naval Discipline Act 1957 (whether before a court-martial or
before any other court or person authorised under theProtection of Freedoms BillPage 84
enactment concerned to award a punishment in respect of an
offence), or(b)before a Standing Civilian Court established under the Armed
Forces Act 1976.
(2)
5Paragraph (b) of the definition of “conviction” applies despite the following
(which deem a conviction of a person discharged not to be a conviction)—
(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000, and
(b)
section 187 of the Armed Forces Act 2006 or any corresponding earlier
enactment.
(3)
10The references in section 90(1) to offences under particular provisions are to be
read as including references to offences under—
(a) section 45 of the Naval Discipline Act 1866,
(b) section 41 of the Army Act 1881,
(c) section 41 of the Air Force Act 1917,
(d) 15section 70 of the Army Act 1955,
(e) section 70 of the Air Force Act 1955, or
(f) section 42 of the Naval Discipline Act 1957,
which are such offences by virtue of those provisions.
(4)
The reference in section 90(3)(b) to an offence under section 71 of the Sexual
20Offences Act 2003 is to be read as including a reference to an offence under
section 42 of the Armed Forces Act 2006 which is such an offence by virtue of
section 71 of the Act of 2003.
(5) In this Chapter a reference to an offence includes—
(a)
a reference to an attempt, conspiracy or incitement to commit that
25offence, and
(b)
a reference to aiding, abetting, counselling or procuring the
commission of that offence.
(6)
In the case of an attempt, conspiracy or incitement, the references in this
Chapter to the conduct constituting the offence are references to the conduct to
30which the attempt, conspiracy or incitement related (whether or not that
conduct occurred).
(7)
For the purposes of subsections (5) and (6) an attempt to commit an offence
includes conduct which—
(a)
consisted of frequenting with intent to commit the offence any river,
35canal, street, highway, place of public resort or other location
mentioned in section 4 of the Vagrancy Act 1824 (as it then had effect)
in connection with frequenting by suspected persons or reputed thiefs,
and
(b) was itself an offence under that section.
Protection of Freedoms BillPage 85
Part 6 Freedom of information and data protection
Publication of certain datasets
100 Release and publication of datasets held by public authorities
(1) 5The Freedom of Information Act 2000 is amended as follows.
(2) In section 11 (means by which communication to be made)—
(a) after subsection (1) insert—
“(1A) Where—
(a)
an applicant makes a request for information to a public
10authority in respect of information that is, or forms part
of, a dataset held by the public authority, and
(b)
on making the request for information, the applicant
expresses a preference for communication by means of
the provision to the applicant of a copy of the
15information in electronic form,
the public authority must, so far as reasonably practicable,
provide the information to the applicant in an electronic form
which is capable of re-use.”
(b)
In subsection (4), for “subsection (1)” substitute “subsections (1) and
20(1A)”.
(c) After subsection (4) insert—
“(5)
In this Act “dataset” means information comprising a collection
of information held in electronic form where all or most of the
information in the collection—
(a)
25has been obtained or recorded for the purpose of
providing a public authority with information in
connection with the provision of a service by the
authority or the carrying out of any other function of the
authority,
(b) 30is factual information which—
(i)
is not the product of analysis or interpretation
other than calculation, and
(ii)
is not an official statistic (within the meaning
given by section 6(1) of the Statistics and
35Registration Service Act 2007), and
(c)
remains presented in a way that (except for the purpose
of forming part of the collection) has not been organised,
adapted or otherwise materially altered since it was
obtained or recorded.”
(3) 40After section 11 (means by which communication to be made) insert—
“11A Release of datasets for re-use
(1) This section applies where—
Protection of Freedoms BillPage 86
(a)
a person makes a request for information to a public authority
in respect of information that is, or forms part of, a dataset held
by the authority,
(b)
any of the dataset or part of a dataset so requested is a relevant
5copyright work,
(c)
the public authority is the only owner of the relevant copyright
work, and
(d)
the public authority is communicating the relevant copyright
work to the applicant in accordance with this Act.
(2)
10When communicating the relevant copyright work to the applicant, the
public authority must make the relevant copyright work available for
re-use by the applicant in accordance with the terms of the specified
licence.
(3)
The public authority may exercise any power that it has by virtue of
15regulations under section 11B to charge a fee in connection with
making the relevant copyright work available for re-use in accordance
with subsection (2).
(4)
Nothing in this section or section 11B prevents a public authority which
is subject to a duty under subsection (2) from exercising any power that
20it has by or under an enactment other than this Act to charge a fee in
connection with making the relevant copyright work available for re-
use.
(5)
Where a public authority intends to charge a fee (whether in
accordance with regulations under section 11B or as mentioned in
25subsection (4)) in connection with making a relevant copyright work
available for re-use by an applicant, the authority must give the
applicant a notice in writing (in this section referred to as a “re-use fee
notice”) stating that a fee of an amount specified in, or determined in
accordance with, the notice is to be charged by the authority in
30connection with complying with subsection (2).
(6)
Where a re-use fee notice has been given to the applicant, the public
authority is not obliged to comply with subsection (2) while any part of
the fee which is required to be paid is unpaid.
(7)
Where a public authority intends to charge a fee as mentioned in
35subsection (4), the re-use fee notice may be combined with any other
notice which is to be given under the power which enables the fee to be
charged.
(8) In this section—
-
“copyright owner” has the meaning given by Part 1 of the
40Copyright, Designs and Patents Act 1988 (see section 173 of that
Act); -
“copyright work” has the meaning given by Part 1 of the Act of
1988 (see section 1(2) of that Act); -
“database” has the meaning given by section 3A of the Act of 1988;
-
45“database right” has the same meaning as in Part 3 of the
Copyright and Rights in Databases Regulations 1997 (S.I. 1997/
3032); -
“owner”, in relation to a relevant copyright work, means—
(a)the copyright owner, or
Protection of Freedoms BillPage 87
(b)the owner of the database right in the database;
-
“relevant copyright work” means—
(a)a copyright work, or
(b)a database subject to a database right,
5but excludes a relevant Crown work or a relevant
Parliamentary work; -
“relevant Crown work” means—
(a)a copyright work in relation to which the Crown is the
copyright owner, or(b)10a database in relation to which the Crown is the owner
of the database right; -
“relevant Parliamentary work” means—
(a)a copyright work in relation to which the House of
Commons or the House of Lords is the copyright owner,
15or(b)a database in relation to which the House of Commons
or the House of Lords is the owner of the database right; -
“the specified licence” is the licence specified by the Secretary of
State in a code of practice issued under section 45, and the
20Secretary of State may specify different licences for different
purposes.
11B Power to charge fees in relation to release of datasets for re-use
(1)
The Secretary of State may, with the consent of the Treasury, make
provision by regulations about the charging of fees by public
25authorities in connection with making relevant copyright works
available for re-use under section 11A(2) or by virtue of section
19(2A)(c).
(2) Regulations under this section may, in particular—
(a) prescribe cases in which fees may, or may not, be charged,
(b)
30prescribe the amount of any fee payable or provide for any such
amount to be determined in such manner as may be prescribed,
(c)
prescribe, or otherwise provide for, times at which fees, or parts
of fees, are payable,
(d)
require the provision of information about the manner in which
35amounts of fees are determined,
(e) make different provision for different purposes.
(3)
Regulations under this section may, in prescribing the amount of any
fee payable or providing for any such amount to be determined in such
manner as may be prescribed, provide for a reasonable return on
40investment.
(4)
In this section “relevant copyright work” has the meaning given by
section 11A(8).”
(4) In section 19 (publication schemes)—
(a) after subsection (2) insert—
“(2A)
45A publication scheme must, in particular, include a requirement
for the public authority concerned—
(a) to publish—
Protection of Freedoms BillPage 88
(i)
any dataset held by the authority in relation to
which a person makes a request for information
to the authority, and
(ii)
any up-dated version held by the authority of
5such a dataset,
unless the authority is satisfied that it is not appropriate
for the dataset to be published,
(b)
where reasonably practicable, to publish any dataset the
authority publishes by virtue of paragraph (a) in an
10electronic form which is capable of re-use,
(c)
where any information in a dataset published by virtue
of paragraph (a) is a relevant copyright work in relation
to which the authority is the only owner, to make the
information available for re-use in accordance with the
15terms of the specified licence.
(2B)
The public authority may exercise any power that it has by
virtue of regulations under section 11B to charge a fee in
connection with making the relevant copyright work available
for re-use in accordance with a requirement imposed by virtue
20of subsection (2A)(c).
(2C)
Nothing in this section or section 11B prevents a public
authority which is subject to such a requirement from exercising
any power that it has by or under an enactment other than this
Act to charge a fee in connection with making the relevant
25copyright work available for re-use.
(2D)
Where a public authority intends to charge a fee (whether in
accordance with regulations under section 11B or as mentioned
in subsection (2C)) in connection with making a relevant
copyright work available for re-use by an applicant, the
30authority must give the applicant a notice in writing (in this
section referred to as a “re-use fee notice”) stating that a fee of
an amount specified in, or determined in accordance with, the
notice is to be charged by the authority in connection with
complying with the requirement imposed by virtue of
35subsection (2A)(c).
(2E)
Where a re-use fee notice has been given to the applicant, the
public authority is not obliged to comply with the requirement
imposed by virtue of subsection (2A)(c) while any part of the fee
which is required to be paid is unpaid.
(2F)
40Where a public authority intends to charge a fee as mentioned
in subsection (2C), the re-use fee notice may be combined with
any other notice which is to be given under the power which
enables the fee to be charged.”
(b) after subsection (7) insert—
“(8) 45In this section—
-
“copyright owner” has the meaning given by Part 1 of the
Copyright, Designs and Patents Act 1988 (see section
173 of that Act); -
“copyright work” has the meaning given by Part 1 of the
50Act of 1988 (see section 1(2) of that Act); -
“database” has the meaning given by section 3A of the Act
of 1988; -
“database right” has the same meaning as in Part 3 of the
Copyright and Rights in Databases Regulations 1997
5(S.I. 1997/3032S.I. 1997/3032); -
“owner”, in relation to a relevant copyright work, means—
(a)the copyright owner, or
(b)the owner of the database right in the database;
-
“relevant copyright work” means—
(a)10a copyright work, or
(b)a database subject to a database right,
but excludes a relevant Crown work or a relevant
Parliamentary work; -
“relevant Crown work” means—
(a)15a copyright work in relation to which the Crown
is the copyright owner, or(b)a database in relation to which the Crown is the
owner of the database right; -
“relevant Parliamentary work” means—
(a)20a copyright work in relation to which the House
of Commons or the House of Lords is the
copyright owner, or(b)a database in relation to which the House of
Commons or the House of Lords is the owner of
25the database right; -
“the specified licence” has the meaning given by section
11A(8).”
Protection of Freedoms BillPage 89
(5) In section 45 (issue of code of practice)—
(a)
in subsection (2), after paragraph (d) (and before the word “and” at the
30end of the paragraph), insert—
“(da)
the disclosure by public authorities of datasets held by
them,”,
(b) after subsection (2) insert—
“(2A)
Provision of the kind mentioned in subsection (2)(da) may, in
35particular, include provision relating to—
(a) the giving of permission for datasets to be re-used,
(b)
the disclosure of datasets in an electronic form which is
capable of re-use,
(c)
the making of datasets available for re-use in accordance
40with the terms of a licence,
(d)
other matters relating to the making of datasets
available for re-use,
(e)
standards applicable to public authorities in connection
with the disclosure of datasets.”, and
(c)
45in subsection (3) for “The code” substitute “Any code under this
section”.
(6)
In section 84 (interpretation), after the definition of “the Commissioner”,
insert—
-
““dataset” has the meaning given by section 11(5);”.