|
| |
|
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 |
| |
| |
(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 |
| |
| |
(b) | that the substance of the complaint has been communicated to the |
| |
responsible authority and it has had a reasonable opportunity to deal |
| 10 |
| |
(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. |
| 20 |
(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 |
| |
| |
(3) | The action which may be taken by the Commissioner to deal with the |
| 30 |
| |
(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 |
| 45 |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 20 |
33 | Report on the outcome of an investigation |
| |
(1) | If a complaint has been investigated or otherwise dealt with, the |
| |
| |
(a) | shall make a report on the outcome to the complainant; and |
| |
(b) | may make a report on that outcome to any other person. |
| 25 |
(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 |
| |
| |
(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 |
| |
(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 |
| |
| 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 |
| |
| |
|
| |
|
| |
|
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 |
| |
| 15 |
(2) | A death falls within the deaths remit if it is of a description specified in |
| |
| |
(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 |
| |
(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. |
| |
|
| |
|
| |
|
(9) | Such recommendations may be made during the investigation or after its |
| |
| |
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 |
| |
| |
(c) | appears to the Commissioner to have been a friend of the deceased at |
| |
| 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 |
| |
| 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 |
| |
| |
(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 |
| |
| |
(3) | A request may specify any matter relating to events which have (or may have) |
| |
| |
(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; |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
| in connection with responsibilities assumed by the board, provider or |
| 10 |
officer in relation to a person who has been charged with or convicted |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
|
| |
|
| |
|
as relating to matters that could be the subject of a request under this |
| |
| |
| and a re-opened investigation shall be treated for the purposes of this Part as a |
| |
separate investigation under this section. |
| |
| 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 |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
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 |
| |
| |
(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 |
| |
| |
(b) | the production of documents. |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
(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. |
| |
|
| |
|