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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons

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31      

Eligible complaints: specific requirements applicable to all complaints

(1)   

Subject to subsection (3), a complaint is ineligible if the Commissioner is

satisfied that any of the requirements specified in subsection (2) has not been

met.

(2)   

Those requirements are—

5

(a)   

that a period of no more than one year has passed since the relevant

person first became aware of the matters giving rise to the substance of

the complaint;

(b)   

that the substance of the complaint has been communicated to the

responsible authority and it has had a reasonable opportunity to deal

10

with it; and

(c)   

where the responsible authority has responded to the substance of the

complaint following such a communication (whether by rejecting it or

by addressing it in some other way), that a period of no more than three

months has passed since it did so.

15

(3)   

But the Commissioner may—

(a)   

waive any requirement specified in subsection (2), or

(b)   

extend any period so specified,

   

if satisfied that there is good reason why that requirement or period should be

waived or extended in relation to the complaint.

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(4)   

In this section “the responsible authority”, in relation to a complaint, means the

controlling authority appearing to the Commissioner to have the most direct

responsibility for the matters covered by the complaint.

32      

Treatment by Commissioner of complaints

(1)   

This section applies where a complaint is made to the Commissioner.

25

(2)   

The Commissioner shall—

(a)   

consider the eligibility of the complaint, and

(b)   

unless it is rejected as being ineligible, take appropriate action to deal

with the complaint.

(3)   

The action which may be taken by the Commissioner to deal with the

30

complaint is—

(a)   

investigating the complaint, or

(b)   

taking, or facilitating the taking by another person of, any other action

(such as mediation or conciliation) which the Commissioner considers

may result in the resolution of the complaint,

35

   

or any combination of the actions mentioned in paragraphs (a) and (b).

(4)   

The Commissioner may reject a complaint as being ineligible at any time before

it appears to the Commissioner to have been fully dealt with.

(5)   

The Commissioner may—

(a)   

decline to take, defer or stop taking, action to deal with the whole or

40

any part of the complaint;

(b)   

after exercising a power under paragraph (a), decide to re-open (and

take action to deal with) the whole or any part of the complaint, but

only if it appears to the Commissioner that the complaint or the part

concerned is or might be eligible; and

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Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons

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(c)   

after rejecting the complaint, decide to re-open (and take action to deal

with) the whole or any part of the complaint, but only if it appears to

the Commissioner that the complaint or the part concerned is or might

be eligible.

(6)   

The Commissioner shall exercise the power to decline to take or to stop taking

5

action to deal with any part of the complaint that the Commissioner decides is

ineligible.

(7)   

If the Commissioner decides—

(a)   

to reject the complaint,

(b)   

to take any step mentioned in subsection (5)(a), (b) or (c),

10

   

the Commissioner shall notify the complainant (with a brief statement of the

reasons for the decision) and may notify such other persons as the

Commissioner thinks fit.

(8)   

Notification under subsection (7) may be given orally.

(9)   

If the complainant has died or is unable to act, the reference in subsection (7) to

15

the complainant is to be read as a reference to the person who appears to the

Commissioner to be the most appropriate person to receive the notification.

(10)   

Subject to the provisions of this section, it is for the Commissioner to determine

the procedures applicable to anything which is to be done in relation to the

complaint.

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33      

Report on the outcome of an investigation

(1)   

If a complaint has been investigated or otherwise dealt with, the

Commissioner—

(a)   

shall make a report on the outcome to the complainant; and

(b)   

may make a report on that outcome to any other person.

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(2)   

The Commissioner may—

(a)   

make a report orally;

(b)   

make different reports to different persons;

(c)   

show any person a draft of the whole or any part of a report;

(d)   

publish the whole or any part of a report.

30

(3)   

But the Commissioner shall not—

(a)   

publish the name of the complainant without the complainant’s

consent; or

(b)   

if the complainant is not the relevant person in relation to the

complaint, publish the relevant person’s name without the consent of

35

the complainant.

(4)   

If the complainant has died or is unable to act—

(a)   

the report required under subsection (1)(a) shall be made to the person

who appears to the Commissioner to be the most appropriate person to

receive it; and

40

(b)   

the consent required by subsection (3)(b) may be given by any person

appearing to the Commissioner to be an appropriate person to give that

consent.

 
 

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons

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34      

Recommendations by Commissioner

(1)   

The Commissioner may make recommendations to a controlling authority

about any matter arising from a complaint which is or has been the subject of

investigation by the Commissioner.

(2)   

The authority must, within the period of 28 days commencing with the day on

5

which it receives the recommendations, respond in writing to the

Commissioner setting out (with reasons) what it proposes to do about them.

(3)   

The Commissioner may report on that response to such persons as the

Commissioner may think fit.

(4)   

Subsections (2) to (4) of section 33 apply in relation to reports under subsection

10

(3) above as they apply to reports required by that section.

Investigations into deaths etc.

35      

Investigation of deaths

(1)   

The Commissioner shall carry out an investigation of every death falling

within the deaths remit.

15

(2)   

A death falls within the deaths remit if it is of a description specified in

Schedule 8.

(3)   

In carrying out the investigation, the Commissioner must aim—

(a)   

to establish the circumstances surrounding the death; and

(b)   

if the Commissioner considers it would be helpful to do so, to identify

20

steps that should be taken for the purpose of eliminating or reducing

the risk of deaths occurring under the same or similar circumstances.

(4)   

Subject to that, it is for the Commissioner to determine the scope of, and the

procedure to be applied to, the investigation.

(5)   

The Commissioner may defer the whole or any part of the investigation at the

25

request of a person who—

(a)   

is conducting a criminal investigation, and

(b)   

considers that that investigation might be adversely affected by the

Commissioner’s investigation.

(6)   

In subsection (5) “criminal investigation” means an investigation conducted by

30

police officers or other persons with a view to ascertaining whether an offence

has been committed or whether a person should be charged with an offence.

(7)   

The Commissioner may at any time reopen the investigation of—

(a)   

a death previously investigated under this section; or

(b)   

a death previously investigated by the Prisons and Probation

35

Ombudsman that would, if it occurred after the commencement of this

section, fall within the deaths remit;

   

and a re-opened investigation shall be treated for the purposes of this Part as a

separate investigation under this section.

(8)   

The Commissioner may make recommendations to a controlling authority

40

about any matter arising from an investigation.

 
 

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons

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(9)   

Such recommendations may be made during the investigation or after its

conclusion.

36      

Reports on the outcome of a death investigation

(1)   

This section applies where the Commissioner has carried out an investigation

of a death under section 35.

5

(2)   

The Commissioner shall make a report to—

(a)   

the Secretary of State;

(b)   

the controlling authority appearing to the Commissioner to have the

most direct responsibility over the matters covered by the investigation

(where that authority is not the Secretary of State); and

10

(c)   

a coroner who is holding or who is to hold an inquest into the death.

(3)   

The Commissioner may also make a report to any other person the

Commissioner considers should receive a report.

(4)   

The Commissioner shall exercise the power under subsection (3) to ensure that

a report is made to at least one person who—

15

(a)   

is a personal representative of the deceased,

(b)   

was the partner, or other relative, of the deceased at the time of the

death, or

(c)   

appears to the Commissioner to have been a friend of the deceased at

the time of the death.

20

(5)   

The duty under subsection (4) does not apply if, after taking all reasonable

steps to ascertain the identity of, and a means of contacting, a person falling

within that subsection, the Commissioner is unable to comply with it.

(6)   

In subsections (2) to (4) “report” means a report in writing on the outcome of

the investigation.

25

(7)   

The Commissioner may—

(a)   

make different reports under this section to different persons;

(b)   

show any person a draft of the whole or any part of a report to be made

under this section;

(c)   

publish the whole or any part of a report made under this section;

30

   

but the name of the deceased person must not be published under paragraph

(c) without the consent of a personal representative of that person.

37      

Investigations requested by the Secretary of State

(1)   

The Secretary of State may request the Commissioner to investigate any matter

mentioned in subsection (3) or (4) which is specified in the request.

35

(2)   

The Secretary of State shall consult the Commissioner before making a request

under this section.

(3)   

A request may specify any matter relating to events which have (or may have)

occurred—

(a)   

at applicable premises;

40

(b)   

while a person is in the custody of prison officers or prisoner custody

officers, or under their control or escort, anywhere in the world;

 
 

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons

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(c)   

in the course of exercising any function of the Secretary of State relating

to prisons or persons detained in prison;

(d)   

in the course of exercising any functions of a prison officer or prisoner

custody officer;

(e)   

in the course of the activities of a relevant contractor;

5

(f)   

in the course of the activities of—

(i)   

a local probation board or a provider of probation services, or

(ii)   

an officer of a local probation board or an officer of a provider

of probation services,

   

in connection with responsibilities assumed by the board, provider or

10

officer in relation to a person who has been charged with or convicted

of an offence;

(g)   

at immigration detention premises which are not excepted premises;

(h)   

while a person is in the custody of immigration custody officers, or

under their control or escort, anywhere in the world (other than

15

immigration detention premises).

(4)   

A request may also specify any matter the Secretary of State considers is (or

may be) linked to events falling within subsection (3).

(5)   

A request under this section which—

(a)   

is made by virtue of subsection (3)(g) and specifies a matter relating to

20

events which have (or may have) occurred at immigration detention

premises in Scotland which are not excepted premises, or

(b)   

is made by virtue of subsection (4) and specifies a matter which the

Secretary of State considers is (or may be) linked to events which have

(or may have) occurred at immigration detention premises in Scotland

25

which are not excepted premises,

   

shall not be made unless the Secretary of State considers that those events are

(or may be) linked to a reserved matter within the meaning of the Scotland Act

1998 (c. 46).

(6)   

The Secretary of State shall consult the Scottish Ministers before making a

30

request by virtue of subsection (4) which specifies a matter which appears to

involve the investigation of events which have (or may have) occurred in

Scotland.

(7)   

It is the duty of the Commissioner to investigate any matter which is the subject

of a request under this section.

35

(8)   

The Commissioner shall consult the Lord Advocate before investigating a

matter relating to events which have (or may have) occurred in Scotland.

(9)   

The Commissioner shall defer such an investigation if it appears to the

Commissioner that it might adversely affect a criminal investigation, or an

investigation of a death, which is being or is to be conducted by the Lord

40

Advocate or the procurator fiscal.

(10)   

Subject to any directions given to the Commissioner by the Secretary of State,

it is for the Commissioner to determine the scope of, and the procedure to be

applied to, an investigation under this section.

(11)   

Subject to any such directions, the Commissioner may at any time reopen—

45

(a)   

an investigation previously carried out under this section; or

(b)   

an investigation carried out by the Prisons and Probation Ombudsman

of matters referred to the Ombudsman by the Secretary of State (so far

 
 

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons

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as relating to matters that could be the subject of a request under this

section);

   

and a re-opened investigation shall be treated for the purposes of this Part as a

separate investigation under this section.

(12)   

In subsection (3)—

5

(a)   

the reference in paragraph (c) to the Secretary of State is to the Secretary

of State having responsibility for prisons;

(b)   

the references to functions are to functions conferred by or under any

Act (including in the case of prison officers, functions exercisable by

virtue of section 8 of the Prison Act 1952 (c. 52) (constabulary powers

10

etc.));

(c)   

the reference to a local probation board includes a reference to a person

acting in pursuance of arrangements of the kind mentioned in section

5(2) of the Criminal Justice and Court Services Act 2000 (c. 43); and

(d)   

the reference to a provider of probation services includes a reference to

15

a person acting in pursuance of arrangements of the kind mentioned in

section 3(3)(c)(i) of the Offender Management Act 2007.

38      

Reports on the outcome of an investigation under section 37

(1)   

After conducting an investigation under section 37 the Commissioner shall

report in writing on the outcome of the investigation to—

20

(a)   

the Secretary of State; and

(b)   

such other persons (if any) as the Secretary of State may direct.

(2)   

Subject to any directions given by the Secretary of State, the Commissioner

may—

(a)   

make different reports under this section to different persons;

25

(b)   

show any person a draft of the whole or any part of a report to be made

under this section;

(c)   

publish the whole or any part of a report made under this section;

   

but, in the case of an investigation of a death, the name of the deceased person

must not be published without the consent of a personal representative of that

30

person.

General powers and duties

39      

Powers of Commissioner to obtain information etc.

(1)   

This section confers powers on the Commissioner for the purposes of any

investigation under this Part.

35

(2)   

The Commissioner may require a person the Commissioner thinks is able to

provide information or produce a document relevant to the investigation to do

so.

(3)   

The Commissioner has the same powers as the High Court in relation to—

(a)   

the attendance and examination of witnesses (including the

40

administration of oaths and affirmations and the examination of

witnesses abroad); and

(b)   

the production of documents.

 
 

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons

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(4)   

The Commissioner may also require a person to secure that access to any

premises (other than premises used solely as a dwelling) is given to the

Commissioner or members of the Commissioner’s staff for the purpose of

inspecting the premises or any documents or other things situated on them.

(5)   

Such access must be given at such reasonable times as the Commissioner may

5

specify.

(6)   

The Commissioner may require any person who is at the premises at those

times to provide such reasonable assistance as the Commissioner may specify.

40      

Exceptions etc. to Commissioner’s powers under section 39

(1)   

Subject to subsection (3), no person shall be compelled by virtue of this Part to

10

give any evidence or do any other thing which that person could not be

compelled to do in civil proceedings before the High Court.

(2)   

No obligation to maintain secrecy or other restriction on the disclosure of

information obtained by or provided to persons in Her Majesty’s service,

whether imposed by or under any enactment or by any rule of law, applies in

15

relation to an investigation.

(3)   

The Crown is not entitled in relation to an investigation to any privilege in

respect of the production of documents or of the giving of evidence as would

otherwise be allowed in legal proceedings.

(4)   

No person shall be compelled or authorised by virtue of this Part—

20

(a)   

to provide any information relating to proceedings of the Cabinet or of

any Committee of the Cabinet; or

(b)   

to produce any document relating to such proceedings.

(5)   

For this purpose a certificate which—

(a)   

is issued by the Secretary of the Cabinet with the approval of the Prime

25

Minister, and

(b)   

certifies that any information or document (or part of a document)

relates to any proceedings mentioned in subsection (4),

   

is conclusive of the matters certified.

(6)   

In this section “investigation” means any investigation under this Part.

30

41      

Obstruction and contempt

(1)   

The Commissioner may, if satisfied that the condition in subsection (2) is met

in relation to a person, refer the matter to the High Court.

(2)   

The condition is that the person—

(a)   

has failed to comply with a requirement imposed by virtue of section

35

39 or has otherwise, without lawful excuse, obstructed the performance

of any of the Commissioner’s functions; or

(b)   

has committed an act or omission in relation to an investigation which,

if the investigation were proceedings in the High Court, would

constitute contempt of court.

40

(3)   

The High Court may inquire into the matter referred by the Commissioner and,

if satisfied that the condition in subsection (2) is met, may deal with the person

concerned as if that person were in contempt of court.

 
 

 
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