|
| |
| |
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 |
| |
| |
(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 |
| |
| 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 |
| |
| |
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 |
| |
| |
(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). |
| |
| |
| |
|
| |
| |
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 |
| |
(b) | in carrying out or otherwise in connection with an investigation under |
| |
| |
(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, |
| |
| |
(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 |
| |
| |
| or for the purposes of an investigation with a view to the taking of such |
| 35 |
| |
(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 |
| |
| |
(g) | for the purposes of an investigation of the Lord Advocate or a |
| 40 |
| |
(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; |
| |
| |
| |
|
| |
| |
(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 |
| |
| |
(4) | This subsection applies to information if it appears to the Commissioner to |
| |
| 5 |
(a) | a matter in respect of which the Information Commissioner could |
| |
exercise a power conferred by an enactment mentioned in subsection |
| |
| |
(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); |
| |
| |
(6) | Those offences are offences under— |
| |
(a) | any provision of the Data Protection Act 1998 other than paragraph 12 |
| 15 |
| |
(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), |
| |
| |
(10) | Subsection (9) does not apply in relation to proceedings mentioned in |
| 30 |
subsection (3)(d) to (g). |
| |
| |
| |
(b) | a member of the Commissioner’s staff; |
| |
(c) | a person from whom advice is obtained by virtue of paragraph 11 of |
| 35 |
| |
(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 |
| |
| |
(a) | any document or information specified in the notice, or |
| |
(b) | any description of document or information so specified, |
| |
| |
| |
|
| |
| |
| 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. |
| |
| 15 |
| |
(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 |
| |
| |
(2) | The Treasury may issue guidelines in relation to— |
| |
(a) | the circumstances under which payments under this section may be |
| |
| 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 |
| |
| |
(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) |
| |
| |
(a) | any complaint made before commencement (“an existing complaint”), |
| |
(b) | any death occurring before commencement (“an existing death |
| |
| 40 |
| |
| |
|
| |
| |
(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 |
| |
(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 |
| |
| 20 |
(6) | In this section “commencement” means the commencement of this section. |
| |
50 | Interpretation of Part 4 |
| |
| |
“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 |
| |
| 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 |
| |
| 45 |
“prison officer” means an individual appointed to a post under section 7 |
| |
of the Prison Act 1952 (c. 52); |
| |
| |
| |
|
| |
| |
“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 |
| |
| |
“subordinate legislation” has the same meaning as in the Interpretation |
| 10 |
| |
(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 |
| |
| 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 |
| |
| |
(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). |
| |
| |
“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 |
| |
| |
(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 |
| |
(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 |
| |
| 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 |
| |
| |
(5) | The Secretary of State may by order modify subsection (3) of section 37 so as |
| |
| 45 |
| |
| |
|
| |
| |
(a) | add a description of events; or |
| |
(b) | amend or repeal any description of events for the time being specified |
| |
| |
(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 |
| |
| |
(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 |
| |
(8) | An order under this section may make consequential provision (including |
| |
provision modifying any Act or subordinate legislation, whenever passed or |
| |
| |
(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 |
| |
| 25 |
| |
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 |
| |
| |
| |
| |
|
