Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Schedule 12 — The Northern Ireland Commissioner for Prison Complaints
209

Schedule 11
Section 55

Controlling authorities for purposes of Part 4

The Secretary of State.

Governors and directors of prisons, young offender institutions and secure
training centres in England and Wales.
5

Persons with whom the Secretary of State has made arrangements under
section 80 of the Criminal Justice Act 1991 (c. 53) or other relevant
contractors.

An independent monitoring board under section 6 of the Prison Act 1952
(c. 52).
10

The Youth Justice Board.

Local probation boards.

Organisations with which a local probation board has made arrangements
of the kind mentioned in section 5(2)(a) of the Criminal Justice and Court
Services Act 2000 (c. 43).
15

Providers of probation services whose arrangements under section 3(2) of
the Offender Management Act 2007 provide for them to be controlling
authorities for the purposes of this Part.

Persons with whom a provider of probation services has made
arrangements of the kind mentioned in section 3(3)(c)(i) of the Offender
20
Management Act 2007.

Managers of removal centres (within the meaning of Part 8 of the
Immigration and Asylum Act 1999 (c. 33)).

Managers of short-term holding facilities (within the meaning of Part 8 of the
Immigration and Asylum Act 1999).
25

Persons with whom the Secretary of State has made arrangements under
section 156 of the Immigration and Asylum Act 1999.

A visiting committee under section 152 of the Immigration and Asylum Act
1999.
Schedule 12
30
Section 58(5)

The Northern Ireland Commissioner for Prison Complaints
Appointment and removal from office
1
Her Majesty may appoint a person to be the Commissioner.
2     (1)
A person appointed as Commissioner shall hold office for such term, not
exceeding five years, as may be specified in the terms of appointment.
35
      (2)
At the end of that term the person concerned is eligible for re-appointment
for a further period not exceeding five years.

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Schedule 12 — The Northern Ireland Commissioner for Prison Complaints
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      (3)
A person may not be re-appointed for a third consecutive term unless, by
reason of special conditions, such re-appointment is desirable in the public
interest.
3     (1)
The Commissioner may be relieved of office by Her Majesty at the
Commissioner’s own request or removed from office by Her Majesty in
5
consequence of Addresses from both Houses of Parliament.
      (2)
Her Majesty may declare the office of Commissioner to have been vacated if
satisfied that the person appointed is incapable for medical reasons of
performing the functions of that office.
Remuneration, pensions and other benefits
10
4
The Secretary of State shall pay the Commissioner such remuneration and
such travelling and other allowances as the Secretary of State may
determine.
5
The Secretary of State shall pay to or in respect of a person who holds or has
held office as Commissioner such pension, allowances or gratuities as the
15
Secretary of State may determine.
Appointment of acting Commissioner
6     (1)
Where the office of Commissioner becomes vacant, the Secretary of State
may appoint a person as acting Commissioner.
      (2)
The power under sub-paragraph (1) may not be exercised after the end of the
20
period of two years beginning with the day on which the vacancy arose.
7     (1)
Any person holding office as acting Commissioner shall cease to hold that
office—
(a)
on the appointment of a new Commissioner; or
(b)
at the end of the period of two years beginning with the day on
25
which the vacancy arose.
      (2)
Otherwise, a person appointed as acting Commissioner holds office in
accordance with the terms of appointment.
8
A person holding office as acting Commissioner is to be treated for all
purposes (apart from those of paragraphs 1 to 7) as the Commissioner.
30
The Commissioner’s staff
9
The Commissioner’s staff shall be provided by (or in pursuance of
arrangements made by) the Secretary of State.
Delegation of functions
10    (1)
Any function of the Commissioner may be performed on behalf of the
35
Commissioner by an authorised member of staff (but only to the extent that
the person concerned is authorised to do so).
      (2)
In sub-paragraph (1) “authorised member of staff” means a member of the
Commissioner’s staff who is authorised by the Commissioner to exercise
that function.
40

Criminal Justice and Immigration Bill
Schedule 13 — the Northern Ireland Commissioner’s complaints remit
Part 2 — Supplementary
211

Advisers
11    (1)
The Commissioner may obtain advice to assist in the performance of any of
the Commissioner’s functions from any person who appears to the
Commissioner to be qualified to give it.
      (2)
The Commissioner may pay fees or allowances to any person in relation to
5
the provision of advice under this paragraph.
Annual and other reports
12    (1)
The Commissioner—
(a)
shall publish a general report on the performance of the
Commissioner’s functions during each year (an “annual report”);
10
(b)
may publish other reports with respect to those functions.
      (2)
An annual report must be published as soon as may be practicable after the
end of the year to which it relates.
      (3)
The Commissioner shall send a copy of each report under this paragraph to
the Secretary of State.
15
      (4)
The Secretary of State shall lay before Parliament—
(a)
a copy of each annual report,
(b)
a copy of any other report under this paragraph which is sent with a
request for it to be so laid,

and shall do so as soon as practicable after receiving a copy of the report
20
concerned.
Schedule 13
Section 59(2)

the Northern Ireland Commissioner’s complaints remit
Part 1
The specified matters
25
1
Any matter relating to the way in which a person has been treated at any
applicable premises while being held there.
2
Any matter relating to the way in which a person has been treated by prison
officers or prisoner custody officers while in their custody, or under their
control or escort, anywhere in the world.
30
3
Any matter relating to the exercise, in relation to a person who has been
charged with or convicted of an offence, of any statutory function of the
Secretary of State relating to applicable premises or persons held there.
Part 2
Supplementary
35
4
In this Schedule, “statutory function” means functions conferred by or under
any Act or by or under Northern Ireland legislation (including, in the case of

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Schedule 16 — Alternatives to prosecution for persons under 18
212

prison officers, functions exercisable by virtue of section 8 of the Prison Act
(Northern Ireland) 1953 (N.I. 18)).
5
The matters covered by paragraph 2 include matters affecting a person who
has been charged with and convicted of an offence which relate to the
exercise of the statutory functions of a prison officer or a prison custody
5
officer.
6
In paragraph 3 the references to the Secretary of State are references to the
Secretary of State having responsibility for prisons in Northern Ireland.
Schedule 14
Section 64(2)

The Northern Ireland Commissioner’s deaths remit
10
1
A death of a person at any applicable premises while being held there.
2
A death of a person while in the custody, or under the control or escort, of
prison officers or prisoner custody officers anywhere in the world.
3
A death of a person which the Commissioner is satisfied should be
investigated because it is or may be linked to events which have occurred—
15
(a)
at any applicable premises while that person was being held there; or
(b)
while that person was in the custody, or under the control or escort,
of prison officers or prisoner custody officers anywhere in the world.
Schedule 15
Section 78(1)

Controlling authorities for purposes of Part 5
20

The Secretary of State.

Governors of prisons, young offender centres and remand centres in
Northern Ireland.

An independent monitoring board appointed under section 10 of the Prisons
Act (Northern Ireland) 1953 (N.I. 18).
25

Persons with whom the Secretary of State has made arrangements under
section 118 of the Criminal Justice and Public Order Act 1994 (c. 33).
Schedule 16
Section 81

Alternatives to prosecution for persons under 18
1
The Crime and Disorder Act 1998 (c. 37) has effect subject to the following
30
amendments.
2     (1)
Section 65 (reprimands and warnings) is amended as follows.
      (2)
In subsection (1)—

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Schedule 16 — Alternatives to prosecution for persons under 18
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(a)
for paragraph (b) substitute—
“(b)
the constable considers that there is sufficient
evidence to charge the offender with the offence;”,
(b)
in paragraph (d), after “an offence” insert “or given a youth
conditional caution in respect of an offence”, and
5
(c)
for paragraph (e) substitute “the constable does not consider that the
offender should be prosecuted or given a youth conditional caution.”
      (3)
In subsection (3)(b) after “to be brought” insert “or a youth conditional
caution to be given”.
      (4)
In subsection (6), in paragraph (a)(i) after “to be brought” insert “or a youth
10
conditional caution to be given”.
      (5)
In subsection (7) for “In this section” substitute “In this Chapter”.
      (6)
For subsection (8) (cautions not to be given to children or young persons)
substitute—
“(8)
No caution, other than a youth conditional caution, shall be given to
15
a child or young person.”
3
After section 66 insert—
“Youth conditional cautions
66A
Youth conditional cautions for offenders aged 16 or 17
(1)
An authorised person may give a youth conditional caution to a
20
young person aged 16 or 17 (“the offender”) if—
(a)
the offender has not previously been convicted of an offence,
and
(b)
each of the five requirements in section 66B is satisfied.
(2)
In this Chapter, “youth conditional caution” means a caution which
25
is given in respect of an offence committed by the offender and
which has conditions attached to it with which the offender must
comply.
(3)
The conditions which may be attached to such a caution are those
which have one or more of the following objects—
30
(a)
facilitating the rehabilitation of the offender;
(b)
ensuring that the offender makes reparation for the offence;
(c)
punishing the offender.
(4)
The conditions that may be attached to a youth conditional caution
include—
35
(a)
(subject to section 66C) a condition that the offender pay a
financial penalty;
(b)
a condition that the offender attend at a specified place at
specified times.

“Specified” means specified by a relevant prosecutor.
40
(5)
Conditions attached by virtue of subsection (4)(b) may not require
the offender to attend for more than 20 hours in total, not including
any attendance required by conditions attached for the purpose of
facilitating the offender’s rehabilitation.

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Schedule 16 — Alternatives to prosecution for persons under 18
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(6)
The Secretary of State may by order amend subsection (5) by
substituting a different figure.
(7)
In this section, “authorised person” means—
(a)
a constable,
(b)
an investigating officer, or
5
(c)
a person authorised by a relevant prosecutor for the purposes
of this section.
66B
The five requirements
(1)
The first requirement is that the authorised person has evidence that
the offender has committed an offence.
10
(2)
The second requirement is that a relevant prosecutor decides—
(a)
that there is sufficient evidence to charge the offender with
the offence, and
(b)
that a youth conditional caution should be given to the
offender in respect of the offence.
15
(3)
The third requirement is that the offender admits to the authorised
person that he committed the offence.
(4)
The fourth requirement is that the authorised person explains the
effect of the youth conditional caution to the offender and warns him
that failure to comply with any of the conditions attached to the
20
caution may result in his being prosecuted for the offence.
(5)
If the offender is aged 16, the explanation and warning mentioned in
subsection (4) must be given in the presence of an appropriate adult.
(6)
The fifth requirement is that the offender signs a document which
contains—
25
(a)
details of the offence,
(b)
an admission by him that he committed the offence,
(c)
his consent to being given the youth conditional caution, and
(d)
the conditions attached to the caution.
66C
Financial penalties
30
(1)
A condition that the offender pay a financial penalty (a “financial
penalty condition”) may not be attached to a youth conditional
caution given in respect of an offence unless the offence is one that is
prescribed, or of a description prescribed, in an order made by the
Secretary of State.
35
(2)
An order under subsection (1) must prescribe, in respect of each
offence or description of offence in the order, the maximum amount
of the penalty that may be specified under subsection (5)(a).
(3)
The amount that may be prescribed in respect of any offence must
not exceed £100.
40
(4)
The Secretary of State may by order amend subsection (3) by
substituting a different figure.
(5)
Where a financial penalty condition is attached to a youth
conditional caution, a relevant prosecutor must also specify—

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Schedule 16 — Alternatives to prosecution for persons under 18
215

(a)
the amount of the penalty; and
(b)
the person to whom the financial penalty is to be paid and
how it may be paid.
(6)
To comply with the condition, the offender must pay the penalty in
accordance with the provision specified under subsection (5)(b).
5
(7)
Where a financial penalty is (in accordance with the provision
specified under subsection (5)(b)) paid to a person other than a
designated officer for a local justice area, the person to whom it is
paid must give the payment to such an officer.
66D
Variation of conditions
10
A relevant prosecutor may, with the consent of the offender, vary the
conditions attached to a youth conditional caution by—
(a)
modifying or omitting any of the conditions;
(b)
adding a condition.
66E
Failure to comply with conditions
15
(1)
If the offender fails, without reasonable excuse, to comply with any
of the conditions attached to the youth conditional caution, criminal
proceedings may be instituted against the person for the offence in
question.
(2)
The document mentioned in section 66B(6) is to be admissible in such
20
proceedings.
(3)
Where such proceedings are instituted, the youth conditional
caution is to cease to have effect.
(4)
Section 24A(1) of the Criminal Justice Act 2003 (“the 2003 Act”)
applies in relation to the conditions attached to a youth conditional
25
caution as it applies in relation to the conditions attached to a
conditional caution (within the meaning of Part 3 of that Act).
(5)
Sections 24A(2) to (9) and 24B of the 2003 Act apply in relation to a
person who is arrested under section 24A(1) of that Act by virtue of
subsection (4) above as they apply in relation to a person who is
30
arrested under that section for failing to comply with any of the
conditions attached to a conditional caution (within the meaning of
Part 3 of that Act).
66F
Restriction on sentencing powers where youth conditional caution
given
35
Where a person who has been given a youth conditional caution is convicted
of an offence committed within two years of the giving of the
caution, the court by or before which the person is so convicted—
(a)
may not make an order under section 12(1)(b) of the Powers
of Criminal Courts (Sentencing) Act 2000 (conditional
40
discharge) in respect of the offence unless it is of the opinion
that there are exceptional circumstances relating to the
offence or the offender which justify its doing so; and
(b)
where it does make such an order, must state in open court
that it is of that opinion and why it is.
45