|
Clause 27: Determination of prosecution appeals
233. Clause 27 alters the test in subsection (5) of section 61 of the Criminal Justice Act 2003 for ordering a retrial (or that the trial should resume) where the Court of Appeal allow a prosecution appeal against a terminating ruling. At present where the prosecution successfully appeal against a judge's decision that proceedings should stop (for example on a submission at the end of the prosecution evidence that the defendant has no case to answer), the defendant must be acquitted unless the Court consider it "necessary in the interests of justice" for the trial to continue or for a fresh trial to take place. The substituted subsection (5) has the effect that the trial must continue or a fresh trial must take place unless the Court consider that the defendant could not receive a fair trial.
Clause 28: Review of sentence on a reference by Attorney General
234. Clause 28 inserts new subsections (3A) and (3B) into the Criminal Justice Act 1988.
235. Under Part 4 of the Criminal Justice Act 1988, the Attorney General has the power to refer a Crown Court sentence to the Court of Appeal on the grounds that it is unduly lenient. The Court of Appeal then has the discretion as to whether to quash the sentence and, if so, what sentence they may impose in its place. Where the Court of Appeal increases a sentence on a reference by the Attorney General, it has a non statutory practice of allowing a "double jeopardy discount" by not increasing the sentence as much as it would otherwise do, on the grounds that the defendant is suffering distress and anxiety from going through the sentencing process a second time.
236. This practice was prohibited for life sentence minimum terms imposed for murder by section 272 of the 2003 Act, which inserted subsection (3A) into section 36 of the 1988 Act. Clause 28 extends the prohibition to cases to which new subsection (3B) refers. These cases are discretionary life sentences and indeterminate sentences. The effect is that the practice of allowing a "double jeopardy" discount is abolished in unduly lenient sentence references in the following cases: a sentence of imprisonment for life; a sentence of detention during Her Majesty's pleasure or for life under section 90 or 91 of the 2000 Act and a sentence of custody for life under section 93 or 94 of that Act; a sentence of imprisonment or detention for public protection under section 225 of the 2003 Act and a sentence of detention for public protection under section 226 of that Act.
Part 4: Her Majesty's Commissioner for Offender Management and Prisons
Clause 29 and Schedule 6: Appointment etc of Commissioner
237. This clause and the related Schedule 6 make general provision for the creation of the office of Her Majesty's Commissioner for Offender Management and Prisons.
238. The Commissioner's functions are outlined in subsection (2). The main functions are:
- investigating deaths in custody; and
- carrying out other investigations at the request of the Secretary of State.
239. These functions are currently performed by the PPO on a non-statutory basis.
240. Schedule 6 makes provision for the appointment, tenure and remuneration of the Commissioner, the funding and staffing of the Commissioner's office, and the making of annual and other reports.
Clause 30 and Schedule 7: Eligible complaints: general
241. This clause and the related Part 1 of Schedule 7 make provision for the handling of eligible complaints by the Commissioner. The clause provides the Commissioner with the discretion to determine the procedures for the making of complaints to him or her, providing that such procedures do not preclude the making of complaints orally.
242. The Commissioner will be able to act on eligible complaints which are made to him or her by certain categories of person, including:
- persons in prison custody (including unconvicted persons held in prison on remand and persons held in Young Offender Institutions, but the intention is to exclude persons held in Secure Training Centres), and persons formerly in prison custody;
- residents and former residents of Approved Premises (including voluntary residents), as that term is defined in section 9 of the Criminal Justice and Court Services Act 2000;
- persons who are or have been under community supervision;
- persons who have had reports prepared on them by local probation boards (or probation trusts as proposed in the Offender Management Bill 2007);
- persons who are or have been detained in certain immigration detention premises; and
- persons under prison or immigration escort.
243. The Commissioner will only be able to act on those complaints which relate to matters specified in Part 1 of Schedule 7. Such matters include, for example, the way in which the complainant has been treated whilst held in certain premises and to the conduct (including the merit of decisions) of certain persons.
244. Subsection (3)(b) enables the Secretary of State by order to specify matters which are excluded matters for the purposes of the Commissioner's complaints remit.
245. Subsection (4) does not enable the Commissioner to review adjudicated decisions of certain independent judicial and other bodies. However, the intention is not to exclude a matter simply because it might result in such proceedings. For example, the Commissioner will be able to exercise his discretion and decline to act on a complaint where the complainant's solicitors are in the process of preparing a writ on the same subject. Once proceedings have been commenced or an appeal is under way, the Commissioner will again be able to exercise his discretion as to whether he wants to continue to deal with the case. The Commissioner may decline to act where the matter was at large before a court, but if the matter is undetermined or the subject matter of the complaint remains unresolved then it will be open to the Commissioner to deal with it.
246. Subsection (5) enables the Commissioner to investigate complaints relating to information provided to the bodies listed in subsection (4). This will allow, for example, the Commissioner to investigate a complaint relating to the factual accuracy of a pre-sentence report prepared by a probation officer. However, the Commissioner's investigation will be prohibited from covering the actual determination of the court, which is a decision falling within subsection (4).
247. Subsection (8) provides for a person to be entitled to complain on behalf of the relevant person (as that term is defined in subsection (9)) in relation to a complaint if that person is dead or unable to act for himself or herself.
248. In 2005-2006, the PPO investigated a total of 1,469 prison complaints and 38 probation complaints. Complaints about property and cash formed the largest proportion of complaints from prisoners. Other common types of complaint related to security, transfers and adjudications.
Clause 31: Eligible complaints: specific requirements applicable to all complaints
249. This clause sets out time-limits and certain other conditions which determine whether complaints are ineligible to be dealt with by the Commissioner. The Commissioner will have the discretion to waive these conditions.
250. Subsection (2)(b) requires that the substance of any complaint must first be communicated to the responsible authority (as that term is defined in subsection (4)) and the authority has had a reasonable opportunity to deal with it, before it is eligible to be dealt with by the Commissioner.
Clause 32: Treatment by Commissioner of complaints
251. This clause sets out the actions the Commissioner may take in relation to an eligible complaint; and enables the Commissioner to determine the extent of any complaint investigation and the procedures applicable to any action to be taken.
252. In addition to (or instead of) investigating a complaint, subsection (3)(b) enables the Commissioner to provide other forms of assistance to complainants. Such assistance could come in the form of invoking grievance resolution procedures, including settlement by mediation or conciliation.
253. The Commissioner may exercise his discretion and choose to decline to act on complaints, for example where he considers a more appropriate forum exists. He may also decline to deal with complaints which he considers are insubstantial or incapable of worthwhile resolution. The Commissioner may defer dealing with a complaint if, for example, having consulted with the police and Crown Prosecution Service, it appeared to him that immediate action might prejudice a criminal investigation.
254. Where the Commissioner declines to deal with a complaint, defers or stops investigating it or re-opens a previously rejected complaint, he is then required in accordance with subsection (7) to notify the complainant with a brief explanation of the reasons. The Commissioner may also notify the complainant's representative or such other persons as the Commissioner thinks fit.
Clause 33: Report on the outcome of an investigation
255. This clause requires the Commissioner to inform the complainant of the outcome where he has investigated or otherwise dealt with a complaint. The Commissioner has discretion to report on the outcome to other persons as he thinks fit and may publish the whole or any part of a report.
Clause 34: Recommendations by Commissioner
256. This clause specifies that the Commissioner is able to make recommendations to the Secretary of State and other controlling authorities (as that term is defined in clause 50(1)) about any matter arising from a complaint.
257. These recommendations may relate, for example, to the resolution of the complaint or redress (including financial) for the benefit of the complainant or any other individual similarly affected, or suggested improvements in the administrative processes of the controlling authority. Under subsection (2), where the Commissioner makes such recommendations, the controlling authority to whom they relate must within 28 days of receipt inform the Commissioner in writing about what it intends to do about them.
Clause 35 and Schedule 8: Investigation of deaths
258. This clause and the related Schedule 8 set out the Commissioner's death investigation function, and provide for an investigation's aims, scope and procedure.
259. The Commissioner will be able to investigate deaths of certain persons, including:
- persons in prison custody (including unconvicted persons held in prison on remand, persons held in Young Offender Institutions, and persons detained in Secure Training Centres);
- residents of Approved Premises (including voluntary residents);
- persons detained in certain immigration detention premises; and
- persons under prison or immigration escort.
260. The Commissioner must investigate a death if the person died while being held in the premises, or in the forms of custody or escort, specified in Schedule 8. Under paragraphs 3 and 6 of Schedule 8, the Commissioner may also investigate a death if it appears to be linked to events which occurred while the deceased was being held at those premises (or in those forms of custody or escort).
261. The mandatory aims of a death investigation by the Commissioner are set out in subsection (3). Within that framework, subsection (4) allows the Commissioner to set terms of reference that may vary according to the circumstances of a case. This will allow him, for example, to include other deaths from the categories of persons covered by his death investigation remit where a common factor between the deaths is suggested.
262. Under subsection (5) the Commissioner may defer an investigation of a death if requested to do so by a person who is conducting a criminal investigation in relation to the death. Subsection (7) enables the Commissioner to reopen the investigation of a death by his office (or by the PPO).
263. Subsection (8) specifies that the Commissioner may make recommendations to a controlling authority (as that term is defined in Clause 50 (1)) about matters arising from an investigation. There will be no duty on the authority to respond within a specified time, as recommendations arising from matters covered by an investigation into a death are likely to require wide consideration within the authority. It is envisaged that protocols agreed between the Commissioner and controlling authorities should provide the best way of gaining broadly based and realistic responses which will translate into action.
264. In 2005-06, a total of 197 deaths were reported to the PPO. The majority of deaths were of prisoners. There were 7 deaths of young persons, 3 deaths of women prisoners and 17 deaths of residents of Approved Premises.
Clause 36: Reports on the outcome of a death investigation
265. This clause sets out those to whom the Commissioner must report in writing once he has completed an investigation; and provides for the Commissioner to report to other persons as he thinks fit. The Commissioner is required to take all reasonable steps to share the report with at least one person who was closely connected to the deceased, such as a partner or close relative.
266. Subsection (7) (c) provides the Commissioner with the discretion to decide whether to publish the whole or part of a report relating to an investigation. It is envisaged that such reports may be published in paper or electronic form, and may be
as written, or subject to editing, paraphrasing or anonymising. The name of the deceased must not be published without the consent of a personal representative of that person.
Clause 37 Investigations requested by the Secretary of State
267. This clause sets out the Commissioner's function to investigate certain other matters at the request of the Secretary of State.
268. Subsections (5), (6), (8) and (9) make provision concerning limitations and requirements relating to requests made under this clause which relate to certain matters in Scotland.
269. Subsection (10) provides for the Commissioner to determine the scope and procedure of an investigation under this clause, subject to any directions given to him by the Secretary of State. Subject to any such directions, Subsection (11) permits the Commissioner to re-open a previous investigation under this clause or an investigation carried out previously by the PPO.
270. The PPO has conducted a number of investigations at the request of the Secretary of State. For example, in June 2003 the Secretary of State asked the PPO to investigate a major disturbance and fire that occurred at Yarl's Wood Immigration Removal Centre in February 2002. The PPO's terms of reference were to inquire into the events at the centre of the incident and their causes, and to make recommendations designed to minimise the risk of recurrence in the Home Office Immigration and Nationality Directorate estate.
Clause 38: Reports on the outcome of an investigation under section 37
271. This clause makes provision concerning procedures relating to reports of investigations by the Commissioner of matters at the request of the Secretary of State.
272. Subsection (2)(c) provides the Commissioner with the discretion to decide whether to publish the whole or part of a report relating to an investigation, subject to any directions given by the Secretary of State.
Clause 39: Powers of Commissioner to obtain information etc.
273. This clause provides the Commissioner with powers to require the provision of information or documents for the purposes of any investigation. It also provides the Commissioner with the same powers as the High Court in relation to attendance and examination of witnesses and the production of documents.
274. The Commissioner may require a person to secure that he is given access to any premises, in order to inspect the premises, or any documents or computer records as required. Subsection (7) specifies that the Commissioner has no power to require access to premises solely used as a dwelling.
275. It is envisaged that the Commissioner will continue to rely upon good investigative practices and the contractual obligations of staff in ensuring co-operation from witnesses, however these powers will enable him to ensure the provision of relevant information or attendance of key witnesses in the event of non-cooperation.
Clause 40: Exceptions etc. to Commissioner's powers under Section 39
276. This clause sets out certain exceptions to the Commissioner's powers to compel persons to co-operate with a complaint or an investigation.
277. Subsections (2) and (3) enable the Commissioner to overcome certain restrictions and privileges that might otherwise prevent him from obtaining information and assistance from public servants.
Clause 41: Obstruction and contempt
278. This clause enables the Commissioner to refer to the High Court certain matters relating to the failure of a person to co-operate with an investigation. Provision is made to allow the High Court to deal with such a matter as if the person was in contempt of court.
Clause 42: Working with other ombudsmen etc.
279. This clause provides for the Commissioner and a listed person (as that term is defined in subsection (6)), such as the Parliamentary Ombudsman or the Public Services Ombudsman for Wales, to co-operate in the circumstances specified in subsections (1) and (2).
280. There are two sets of such circumstances. The first is where the Commissioner forms the opinion that a matter he is dealing with or considering is a matter that could be dealt with by another listed person and he consults that person about it. The second is where a listed person forms the opinion that a matter he is dealing with or considering is a matter that could be dealt with by the Commissioner and he consults the Commissioner about it.
281. Subsection (4) specifies that the co-operation provided for under this Clause may include the conducting of a joint investigation, preparation of a joint report, and the publishing of such a report. By virtue of subsection (5) the power to conduct joint investigations or prepare and publish joint reports will not be available where the listed person is the Scottish Public Services Ombudsman.
282. Subsection (7) requires the Commissioner to obtain the consent of the complainant before carrying out a joint investigation with the Parliamentary Ombudsman, the Health Service Ombudsman (for England) or the Local Government Ombudsman (for England).
283. Subsection (8) enables the Secretary of State to amend the list in subsection (6) or (7) by order made by statutory instrument. Subsection (8) enables the Secretary of
State to make such consequential amendments to an Act of Parliament as may be necessary because of a change made to subsections (6) or (7).
Clause 43: Legal and other representation
284. This clause provides that it is for the Commissioner to determine the circumstances relating to the representation of persons by lawyers or other persons in connection with complaints or investigations under Clause 35 or 37.
Clause 44: Disclosure of information etc
285. This Clause provides that the Commissioner must not disclose information that is defined to be protected information in subsection (1), which includes any information obtained in the course of carrying out the Commissioner's functions, except in the circumstances specified in subsection (3). Subsection (2) specifies that information ceases to be classified as protected information for the purposes of the clause after 70 years.
286. Subsection (3) specifies the circumstances in which disclosure of protected information will be permissible. Subsections (4) to (8) provide more detail about further limits upon disclosure in some of those circumstances. The placing of restrictions upon the circumstances in which information can be disclosed reflects the extensive powers of the Commissioner under this Part to obtain information. The Commissioner is given discretion to disclose information for purposes connected with his functions, for the purpose of certain legal proceedings, and in certain other limited circumstances.
287. Subsection (9) to (11) provide that the Commissioner and no other person referred to in subsection (11) shall be required to give evidence in any proceedings, unless the proceedings in question are specifically referred to in subsection (3)(d) to (g).
288. Subsection (12) provides that for the purposes of defamation law, the publication of any matter by the Commissioner for purposes connected with his functions shall be absolutely privileged.
Clause 45: Disclosure of information prejudicial to national security or contrary to public interest
289. This Clause provides for the Secretary of State to give a notice to the Commissioner stating that disclosure of a specified piece of information or class of information, would, in the Secretary of State's opinion, prejudice national security or otherwise be contrary to the public interest.
290. Subsection (2) provides that nothing in this Part authorises or requires the Commissioner to disclose information covered by such a notice.
Clause 46: Notification of matters of potential concern to the police or other authorities
291. This clause enables the Commissioner to notify the police or appropriate controlling authority (as that term is defined in Clause 50 (1)) if the Commissioner forms the opinion that there should be a criminal investigation, or that action should be undertaken by a controlling authority, in relation to any matter.
Clause 47: Power to pay expenses
292. This clause provides the Commissioner with the discretion to pay expenses incurred by a person who has made an eligible complaint (or by those assisting with an eligible complaint) or an investigation under clause 35 or 37, in accordance with any relevant guidelines set by the Treasury. This allows the Commissioner to pay, for example, reasonable travel costs incurred by those attending an interview.
Clause 48 and Schedule 9: Consequential amendments relating to Part 4
293. This Clause gives effect to Schedule 9 which contains consequential amendments relating to this Part. Schedule 9 makes some minor amendments to legislation governing relevant bodies to enable the consultation and co-operation with the Commissioner specified in clause 42.
294. Amendment is also made to Schedule 3 of the Parliamentary Commissioner for Administration Act 1967 so as to prevent the Parliamentary Ombudsman from investigating certain matters falling under this Part. The intention is to avoid potential overlap of provision between the Parliamentary Ombudsman and HM Commissioner for Offender Management and Prisons.
Clause 49: Transitional provision: the Prisons and Probation Ombudsman
295. This clause prevents the PPO from investigating any complaint, death or matter referred by the Secretary of State after the commencement of this Part. Provision is made to allow matters falling under the PPO's remit prior to the commencement of this Part to be continued to be dealt with or investigated after commencement. Provision is also made for the Commissioner to take on certain existing investigations of the PPO's.
Clause 50 and Schedule 10: Interpretation of Part 4
296. This Clause provides definitions of certain terms used in this Part. Subsection (1)(a) defines a controlling authority as any person listed in Schedule 10 . Subsection (1)(b) enables the Secretary of State to specify in an order made by statutory instrument other persons to be regarded as controlling authorities.
297. Subsection (2) enables the Secretary of State to specify in an order made by statutory instrument 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.
| 
