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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

29

 

42      

Working with other ombudsmen etc.

(1)   

This section applies where the Commissioner—

(a)   

forms the opinion that a matter being considered, investigated or

otherwise dealt with by the Commissioner relates (in whole or part) to

a matter that has been or could be dealt with by a listed person; and

5

(b)   

consults that person about that matter.

(2)   

This section also applies where a listed person—

(a)   

forms the opinion that a matter being considered or dealt with by that

person relates (in whole or in part) to a matter that has been or could be

dealt with by the Commissioner; and

10

(b)   

consults the Commissioner about that matter.

(3)   

The Commissioner and the listed person may co-operate with each other in

relation to the matter.

(4)   

That co-operation may include (among other things)—

(a)   

carrying out a joint investigation;

15

(b)   

preparing a joint report;

(c)   

publishing such a report.

(5)   

But that co-operation may not include any of the things mentioned in

subsection (4) where the listed person is the Scottish Public Services

Ombudsman.

20

(6)   

In this section “listed person” means—

The Parliamentary Commissioner for Administration

A Local Commissioner under Part 3 of the Local Government Act 1974

(c. 7))

The Health Service Commissioner for England

25

The Scottish Public Services Ombudsman

The Children’s Commissioner for Wales

The Public Services Ombudsman for Wales.

(7)   

The consent of the complainant (or a representative of the complainant acting

in accordance with section 43) must be obtained before the Commissioner

30

agrees to carry out a joint investigation of a complaint made under this Part

with any of the following—

The Parliamentary Commissioner for Administration

A Local Commissioner under Part 3 of the Local Government Act 1974

The Health Service Commissioner for England.

35

(8)   

The Secretary of State may by order amend subsection (6)  or (7)  by—

(a)   

adding or omitting a person or body;

(b)   

changing an entry for a person or body for the time being specified

there.

(9)   

Such an order may make consequential provision (including provision

40

amending this Act, any other Act or subordinate legislation, Northern Ireland

legislation or an Act of the Scottish Parliament).

 
 

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

30

 

43      

Legal and other representation

The Commissioner may determine the circumstances under which and the

extent to which persons may be represented by lawyers or other persons in

connection with complaints or with investigations under section 35 or 37.

.

5

Disclosure of information

44      

Disclosure of information etc.

(1)   

For the purposes of this section information is protected information if it is

obtained by the Commissioner (or a member of the Commissioner’s staff)—

(a)   

in carrying out functions in relation to, or otherwise in connection with,

10

a complaint;

(b)   

in carrying out or otherwise in connection with an investigation under

section 35 or 37;

(c)   

from the Information Commissioner by virtue of section 76 of the

Freedom of Information Act 2000 (c. 36); or

15

(d)   

from a listed person (within the meaning of section 42) in connection

with any consultation or co-operation mentioned in that section.

(2)   

Such information ceases to be protected information 70 years after it is first

obtained as mentioned in subsection (1).

(3)   

Protected information shall not be disclosed except—

20

(a)   

for the purposes of any of the Commissioner’s functions in relation to

a complaint or to matters arising in connection with it;

(b)   

in the case of information obtained in connection with an investigation,

for the purposes of—

(i)   

an investigation under section 35 or 37, or

25

(ii)   

any of the Commissioner’s functions in relation to such an

investigation or to matters arising in connection with it;

(c)   

for the purposes of any provision of section 42;

(d)   

for the purposes of proceedings for—

(i)   

an offence under the Official Secrets Act 1989 (c. 6) alleged to

30

have been committed in relation to protected information; or

(ii)   

an offence of perjury alleged to have been committed in relation

to anything being done in connection with the Commissioner’s

functions;

   

or for the purposes of an investigation with a view to the taking of such

35

proceedings;

(e)   

for the purposes of proceedings under section 41;

(f)   

to a coroner (or a person acting on behalf of a coroner) for the purposes

of an inquest;

(g)   

for the purposes of an investigation of the Lord Advocate or a

40

procurator fiscal;

(h)   

to Her Majesty’s Chief Inspector of Prisons for England and Wales or

Her Majesty’s Chief Inspector of Probation for England and Wales, for

the purposes of the exercise of any of the functions of that office;

(i)   

in the case of information to which subsection (4) applies, to the

45

Information Commissioner;

 
 

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

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(j)   

in the case of information to which subsection (7) applies, to any person

to whom the Commissioner thinks it should be disclosed in the public

interest.

(4)   

This subsection applies to information if it appears to the Commissioner to

relate to—

5

(a)   

a matter in respect of which the Information Commissioner could

exercise a power conferred by an enactment mentioned in subsection

(5); or

(b)   

the commission of an offence mentioned in subsection (6).

(5)   

Those enactments are—

10

(a)   

Part 5 of the Data Protection Act 1998 (c. 29);

(b)   

section 48 of the Freedom of Information Act 2000 (c. 36);

(c)   

Part 4 of that Act.

(6)   

Those offences are offences under—

(a)   

any provision of the Data Protection Act 1998 other than paragraph 12

15

of Schedule 9;

(b)   

section 77 of the Freedom of Information Act 2000.

(7)   

This subsection applies to information if—

(a)   

in the opinion of the Commissioner it reveals or otherwise relates to a

serious threat to the health or safety of a person; or

20

(b)   

it does not fall within paragraph (a) but the Commissioner is

nevertheless of the opinion that it should be disclosed for the purpose

of enabling such a threat to be dealt with.

(8)   

Protected information within subsection (1)(d) may not be disclosed for the

purposes of a notification under section 46 unless the Commissioner has

25

consulted the listed person in question about the making of the disclosure.

(9)   

No person mentioned in subsection (11) may be called upon in any

proceedings to give evidence of protected information within subsection (1)(a),

(b) or (d).

(10)   

Subsection (9) does not apply in relation to proceedings mentioned in

30

subsection (3)(d) to (g).

(11)   

Those persons are—

(a)   

the Commissioner;

(b)   

a member of the Commissioner’s staff;

(c)   

a person from whom advice is obtained by virtue of paragraph 11 of

35

Schedule 6.

(12)   

For the purposes of the law of defamation the publication of any matter by the

Commissioner for purposes connected with his functions (including functions

under this section) shall be absolutely privileged.

45      

Disclosure prejudicial to national security or contrary to public interest

40

(1)   

The Secretary of State may give a notice to the Commissioner stating that the

disclosure of—

(a)   

any document or information specified in the notice, or

(b)   

any description of document or information so specified,

 
 

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

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would, in the opinion of the Secretary of State, prejudice national security or

would otherwise be contrary to the public interest.

(2)   

Nothing in this Part authorises or requires the Commissioner (or any member

of the Commissioner’s staff) to disclose to any person or for any purpose any

document or information covered by a current notice under subsection (1).

5

46      

Notification of matters of potential concern to the police or other authorities

(1)   

If while performing any functions the Commissioner forms the opinion—

(a)   

that there should be a criminal investigation into any matter, or

(b)   

that a controlling authority should, as a matter of urgency, take action

in relation to any matter,

10

   

the Commissioner may notify the police or that authority (as the case may be)

of the matter as soon as is practicable.

(2)   

A notification under subsection (1) may include such information relating to

the matter in question as the Commissioner thinks fit.

General

15

47      

Power to pay expenses

(1)   

Subject to subsection (3), the Commissioner may make payments (of such

amounts as the Commissioner thinks fit) towards the expenses of—

(a)   

a person who has made an eligible complaint; or

(b)   

a person who provides the Commissioner with information or other

20

assistance in relation to an eligible complaint or to an investigation

under section 35 or 37.

(2)   

The Treasury may issue guidelines in relation to—

(a)   

the circumstances under which payments under this section may be

made; and

25

(b)   

the amounts of such payments.

(3)   

The Commissioner must comply with any guidelines so issued.

48      

 Consequential amendments relating to Part 4

Schedule 9 makes consequential amendments relating to this Part.

49      

The Prisons and Probation Ombudsman

30

(1)   

The Prisons and Probation Ombudsman (“the Ombudsman”) has no power to

act in relation to—

(a)   

any complaint made after commencement;

(b)   

any death or other matter occurring after commencement;

(c)   

any matter referred by the Secretary of State after commencement.

35

(2)   

The Ombudsman shall continue to act (under the applicable terms of reference)

in relation to—

(a)   

any complaint made before commencement (“an existing complaint”),

(b)   

any death occurring before commencement (“an existing death

investigation”), and

40

 
 

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

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(c)   

any other matter referred to the Commissioner by the Secretary of State

before commencement (“an existing referral investigation”),

   

unless the complaint, death or matter is treated by the Commissioner as one to

be dealt with under this Part by virtue of subsection (4).

(3)   

The Ombudsman may re-open a completed investigation into any death or

5

other matter referred by the Secretary of State (unless it has previously been re-

opened under section 35 or 37 by the Commissioner).

(4)   

The Commissioner may treat—

(a)   

an existing complaint (so far as relating to matters within the

complaints remit) as an eligible complaint;

10

(b)   

an existing death investigation (if it relates to a death that would fall

within the deaths remit if it occurred after commencement) as an

investigation under section 35;

(c)   

an existing referral investigation (so far as relating to matters that could

be the subject of a request under section 37) as an investigation under

15

section 37.

(5)   

For the purposes of any complaint, death or matter which is to any extent dealt

with under this Part by virtue of subsection (4), things done by or in relation to

the Ombudsman shall be treated as having been done by or in relation to the

Commissioner.

20

(6)   

In this section “commencement” means the commencement of this section.

50      

Interpretation of Part 4

(1)   

In this Part—

“applicable premises” means a prison, a young offender institution, a

secure training centre or approved premises;

25

“the complaints remit” is to be construed in accordance with section 30(2);

“controlling authority” means—

(a)   

a person listed in Schedule 10; or

(b)   

any person of a description specified in an order made by the

Secretary of State;

30

“the deaths remit” is to be construed in accordance with section 35(2);

“document” includes information recorded in any form;

“eligible complaint” has the meaning given by section 30(1);

“excepted premises” means any premises of a description specified in an

order under subsection (2);

35

“events” includes any conduct or omission;

“immigration custody officer” means—

(a)   

a detainee custody officer;

(b)   

an officer who is performing functions conferred under section

154(5) of the Immigration and Asylum Act 1999 (c. 33); or

40

(c)   

an officer who is performing functions as a result of a contract

entered into under section 156(4)(b) of that Act;

“immigration detention premises” means premises which are the subject

of a direction under paragraph 18 of Schedule 2 to the Immigration Act

1971 (c. 77);

45

“prison officer” means an individual appointed to a post under section 7

of the Prison Act 1952 (c. 52);

 
 

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

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“prisoner custody officer” means a person who is—

(a)   

a prisoner custody officer within the meaning of Part 4 of the

Criminal Justice Act 1991 (c. 53); or

(b)   

a custody officer within the meaning of Part 1 of the Criminal

Justice and Public Order Act 1994 (c. 33);

5

“relevant contractor” has the same meaning as in section 13(9) of the

Offender Management Act 2007;

“the relevant person”, in relation to a complaint, has the meaning given by

section 30(10);

“subordinate legislation” has the same meaning as in the Interpretation

10

Act 1978 (c. 30).

(2)   

The Secretary of State may by order specify descriptions of immigration

detention premises which are to be excepted premises for the purposes of this

Part (or, if the order so provides, for the purposes of a specified provision of

this Part).

15

(3)   

In this Part references to the High Court are references—

(a)   

in so far as this Part extends to Scotland, to the Court of Session; and

(b)   

in so far as this Part extends to Northern Ireland, to the High Court of

Northern Ireland.

(4)   

References in this Part to a person being held at applicable premises mean, in

20

the case of approved premises, a person accommodated there in pursuance of

section 9(1) of the Criminal Justice and Court Services Act 2000 (c. 43).

(5)   

In this section—

“approved premises” has the same meaning as in Part 1 of the Criminal

Justice and Court Services Act 2000;

25

“detainee custody officer” has the same meaning as in Part 8 of the

Immigration and Asylum Act 1999 (c. 33);

“prison” has the same meaning as in the Prison Act 1952 (c. 52).

51      

Power to modify certain provisions of Part 4

(1)   

The Secretary of State may by order modify Schedule 7 so as to—

30

(a)   

add a description of matter to that Schedule; or

(b)   

amend or repeal any description of matter for the time being specified

there.

(2)   

The power in subsection (1) may not be exercised so as to have the effect of

excluding any matters that fall within a description specified in Schedule 7

35

when this Act is passed.

(3)   

The Secretary of State may by order modify Schedule 8 so as to—

(a)   

add a description of death; or

(b)   

amend or repeal any description of death for the time being specified

there.

40

(4)   

The power in subsection (3) may not be exercised so as to have the effect of

excluding any deaths that fall within a description specified in Schedule 8

when this Act is passed.

(5)   

The Secretary of State may by order modify subsection (3) of section 37 so as

to—

45

 
 

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

35

 

(a)   

add a description of events; or

(b)   

amend or repeal any description of events for the time being specified

in that subsection.

(6)   

The Secretary of State may by order modify section 44 so as to—

(a)   

add an exception to subsection (3);

5

(b)   

amend or repeal an exception for the time being specified in that

subsection; or

(c)   

specify further circumstances in which subsection (9) does not apply.

(7)   

The power in subsection (6) may not be exercised so as to have the effect of

removing or limiting an exception contained in section 44(3)(a), (b) or (c) when

10

this Act is passed.

(8)   

An order under this section may make consequential provision (including

provision modifying any Act or subordinate legislation, whenever passed or

made).

(9)   

Nothing in subsection (2), (4) or (7) prevents a power under this section being

15

used to remove any provision that is spent.

52      

Power to confer new functions on Commissioner

(1)   

The Secretary of State may by order make provision (whether by amending

this Part or otherwise) for or in connection with—

(a)   

the conferring of additional functions on the Commissioner;

20

(b)   

the conferring of functions on the Secretary of State in relation to any

additional function conferred on the Commissioner.

(2)   

An order under this section may make consequential provision (including

provision modifying any Act or subordinate legislation, whenever passed or

made).

25

Part 5

Other criminal justice provisions

Alternatives to prosecution

53      

Alternatives to prosecution for offenders under 18

Schedule 11 amends the Crime and Disorder Act 1998 (c. 37)—

30

(a)   

to make provision for the giving of youth conditional cautions to

offenders aged 16 and 17, and

(b)   

to make minor amendments relating to reprimands and warnings

under section 65 of that Act.

54      

Protection for spent cautions under the Rehabilitation of Offenders Act 1974

35

(1)   

Schedule 12 amends the Rehabilitation of Offenders Act 1974 (c. 53) so as to

provide for the protection of spent cautions.

(2)   

The provisions of Schedule 12 (and this section) extend only to England and

Wales.

 
 

 
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