|
| |
|
(2B) | Subsection (2A) does not require the Court to dismiss the appeal if it |
| |
thinks that it would seriously undermine the proper administration of |
| |
justice to allow the finding to stand.” |
| |
(4) | In section 13A (appeal against finding of unfitness to be tried), after subsection |
| |
| 5 |
“(3A) | For the purposes of subsection (3)(a), a finding shall not be regarded as |
| |
unsafe for a reason unrelated to the correctness of the finding that the |
| |
accused is unfit to be tried if the Court thinks that there is no reasonable |
| |
doubt that the accused did the act or made the omission charged. |
| |
(3B) | Subsection (3A) does not require the Court to dismiss the appeal if it |
| 10 |
thinks that it would seriously undermine the proper administration of |
| |
justice to allow the finding to stand.” |
| |
(5) | In section 25 (evidence)— |
| |
(a) | in subsection (2)(b) after “allowing” insert “or dismissing”, and |
| |
(b) | in subsection (2)(c) for “which is the subject of the appeal” substitute |
| 15 |
“which is relevant to the determination of the appeal”. |
| |
(6) | After section 29 insert— |
| |
| |
29A | Evidence given after close of prosecution case |
| |
In determining an appeal under this Part, the Court of Appeal shall not |
| 20 |
disregard any evidence solely on the ground that it was given after the |
| |
judge at the appellant’s trial wrongly permitted the trial to continue |
| |
after the close of the evidence for the prosecution.” |
| |
28 | Power of Court of Appeal to disregard developments in the law: England and |
| |
| 25 |
(1) | The Criminal Appeal Act 1968 (c. 19) is amended as follows. |
| |
(2) | In section 2 (appeals against conviction), after subsection (1B) (as inserted by |
| |
| |
“(1C) | In determining for the purposes of subsection (1)(a) whether the |
| |
conviction is unsafe the Court may, if they think it appropriate in all the |
| 30 |
circumstances of the case, disregard any development in the law since |
| |
the date of the conviction.” |
| |
(3) | In section 13 (disposal of appeals against verdict of not guilty by reason of |
| |
insanity), after subsection (1B) (as inserted by section 26(3)) insert— |
| |
“(1C) | In determining for the purposes of subsection (1)(a) whether the verdict |
| 35 |
is unsafe the Court may, if they think it appropriate in all the |
| |
circumstances of the case, disregard any development in the law since |
| |
the date of the verdict.” |
| |
(4) | In section 16 (disposal of appeals against finding of disability), after subsection |
| |
(1B) (as inserted by section 26(4)) insert— |
| 40 |
“(1C) | In determining for the purposes of subsection (1)(a) whether a finding |
| |
is unsafe the Court may, if they think it appropriate in all the |
| |
|
| |
|
| |
|
circumstances of the case, disregard any development in the law since |
| |
the date of the finding.” |
| |
29 | Power of Court of Appeal to disregard developments in the law: Northern |
| |
| |
(1) | The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended as follows. |
| 5 |
(2) | In section 2 (appeals against conviction), after subsection (1B) (as inserted by |
| |
| |
“(1C) | In determining for the purposes of subsection (1)(a) whether the |
| |
conviction is unsafe the Court may, if it thinks it appropriate in all the |
| |
circumstances of the case, disregard any development in the law since |
| 10 |
the date of the conviction.” |
| |
(3) | In section 12 (appeal against finding of not guilty on ground of insanity), after |
| |
subsection (2B) (as inserted by section 27(3)) insert— |
| |
“(2C) | In determining for the purposes of subsection (2)(a) whether the |
| |
finding is unsafe the Court may, if it thinks it appropriate in all the |
| 15 |
circumstances of the case, disregard any development in the law since |
| |
the date of the finding.” |
| |
(4) | In section 13A (appeal against finding of unfitness to be tried), after subsection |
| |
(3B) (as inserted by section 27(4)) insert— |
| |
“(3C) | In determining for the purposes of subsection (3)(a) whether a finding |
| 20 |
is unsafe the Court may, if it thinks it appropriate in all the |
| |
circumstances of the case, disregard any development in the law since |
| |
the date of the finding.” |
| |
| |
30 | Determination of prosecution appeals: England and Wales |
| 25 |
In section 61 of the Criminal Justice Act 2003 (c. 44) (determination of |
| |
prosecution appeal by Court of Appeal) for subsection (5) substitute— |
| |
“(5) | But the Court of Appeal may not make an order under subsection (4)(c) |
| |
in respect of an offence unless it considers that the defendant could not |
| |
receive a fair trial if an order were made under subsection (4)(a) or (b).” |
| 30 |
31 | Determination of prosecution appeals: Northern Ireland |
| |
In Article 20 of the Criminal Justice (Northern Ireland) Order 2004 (S.I. 2004/ |
| |
1500 (N.I.9)) (determination of prosecution appeal by Court of Appeal) for |
| |
paragraph (5) substitute— |
| |
“(5) | But the Court of Appeal may not make an order under paragraph (4)(c) |
| 35 |
in respect of an offence unless it considers that the defendant could not |
| |
receive a fair trial if an order were made under paragraph (4)(a) or (b).” |
| |
|
| |
|
| |
|
| |
32 | Review of sentence on reference by Attorney General |
| |
(1) | Section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) is |
| |
| |
(2) | For subsection (3A) substitute— |
| 5 |
“(3A) | Where a reference under this section relates to a case in which the judge |
| |
made an order specified in subsection (3B), the Court of Appeal shall |
| |
not, in deciding what sentence is appropriate for the case, make any |
| |
allowance for the fact that the person to whom it relates is being |
| |
sentenced for a second time. |
| 10 |
(3B) | The orders specified in this subsection are— |
| |
(a) | an order under section 269(2) of the Criminal Justice Act 2003 |
| |
(determination of minimum term in relation to mandatory life |
| |
| |
(b) | an order under section 82A(2) of the Powers of Criminal Courts |
| 15 |
(Sentencing) Act 2000 (determination of minimum term in |
| |
relation to discretionary life sentences and certain other |
| |
| |
(3) | In subsection (9) after paragraph (b) insert ‘‘, and |
| |
(c) | the reference in subsection (3A) to an order specified in |
| 20 |
subsection (3B) shall be construed as a reference to an order |
| |
under Article 5(1) of the Life Sentences (Northern Ireland) |
| |
| |
33 | Further amendments relating to appeals in criminal cases |
| |
Schedule 6 amends the Criminal Appeal Act 1968 (c. 19), the Criminal Appeal |
| 25 |
(Northern Ireland) Act 1980 (c. 47) and other Acts relating to appeals in |
| |
| |
| |
Her Majesty’s Commissioner for Offender Management and Prisons |
| |
| 30 |
34 | Appointment etc. of Commissioner |
| |
(1) | There shall be a Commissioner, to be known as Her Majesty’s Commissioner |
| |
for Offender Management and Prisons (referred to in this Part as “the |
| |
| |
(2) | The main functions of the Commissioner are— |
| 35 |
(a) | dealing with eligible complaints (see sections 35 to 39); |
| |
(b) | investigating deaths within the deaths remit (see sections 40 and 41); |
| |
(c) | carrying out other investigations at the request of the Secretary of State |
| |
(see sections 42 and 43). |
| |
(3) | The functions of the Commissioner are performed on behalf of the Crown. |
| 40 |
|
| |
|
| |
|
(4) | The Secretary of State shall pay such sums towards the expenses of the |
| |
Commissioner as the Secretary of State may determine. |
| |
(5) | Schedule 7 makes further provision about the Commissioner. |
| |
| |
35 | Eligible complaints: general |
| 5 |
(1) | A complaint is eligible for the purposes of this Part if— |
| |
(a) | it is about a matter within the complaints remit; |
| |
(b) | it is not ineligible by virtue of section 36; and |
| |
(c) | it is made to the Commissioner by a person entitled to make it; |
| |
| but subject to section 36 it is immaterial when the matter in question arose. |
| 10 |
(2) | A matter is within the complaints remit if it is of a description specified in Part |
| |
1 of Schedule 8 and is not an excluded matter. |
| |
(3) | In subsection (2) “excluded matter” means— |
| |
(a) | a matter specified under subsection (4); or |
| |
(b) | a matter to which subsection (5) applies; or |
| 15 |
(c) | a matter related to the provision of health care. |
| |
(4) | The Secretary of State may by order specify matters that are to be excluded |
| |
matters for the purposes of subsection (2). |
| |
| The matters so specified may (without prejudice to the generality of the power) |
| |
include complaints relating to events occurring at any description of applicable |
| 20 |
premises specified in the order. |
| |
(5) | This subsection applies to any matter which has been determined— |
| |
(a) | by a court (whether at a trial or otherwise); |
| |
(b) | by a tribunal specified in Schedule 1 to the Tribunals and Inquiries Act |
| |
| 25 |
| |
(6) | Nothing in subsection (5) affects the eligibility of a complaint about the |
| |
conduct of a person in connection with the provision of a report for a court or |
| |
tribunal or for the Parole Board. |
| |
(7) | The Secretary of State may by order provide that matters of a particular |
| 30 |
description are, or are not, to be regarded for the purposes of subsection (3)(c) |
| |
as matters related to the provision of health care. |
| |
(8) | It is for the Commissioner to determine procedures for the making of |
| |
complaints (but they must not preclude the making of oral complaints). |
| |
(9) | A person is entitled to make a complaint if that person— |
| 35 |
(a) | is the relevant person in relation to the complaint; or |
| |
(b) | where the relevant person is dead or unable to act, appears to the |
| |
Commissioner to be an appropriate person to make the complaint. |
| |
(10) | In this Part “the relevant person”, in relation to a complaint about a matter |
| |
within the complaints remit, is the person mentioned in the relevant paragraph |
| 40 |
of Schedule 8 as having been affected by that matter. |
| |
|
| |
|
| |
|
(11) | For the purpose of determining whether a part of a complaint is eligible for the |
| |
purposes of this Part, any reference in this section (apart from subsection (8)) |
| |
to a complaint may be read as including a reference to a part of a complaint. |
| |
36 | Eligible complaints: specific requirements applicable to all complaints |
| |
(1) | Subject to subsection (3), a complaint is ineligible by virtue of this section if the |
| 5 |
Commissioner is satisfied that any of the requirements specified in subsection |
| |
| |
(2) | Those requirements are— |
| |
(a) | that a period of no more than one year has passed since the complainant |
| |
first became aware of the matters giving rise to the substance of the |
| 10 |
| |
(b) | that the substance of the complaint has been communicated to the |
| |
responsible authority and it has had a reasonable opportunity to deal |
| |
| |
(c) | where the responsible authority has responded to the substance of the |
| 15 |
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. |
| |
(3) | But the Commissioner may— |
| |
(a) | waive any requirement specified in subsection (2), or |
| 20 |
(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. |
| |
(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 |
| 25 |
responsibility for the matters covered by the complaint. |
| |
(5) | For the purpose of determining whether a part of a complaint is ineligible by |
| |
virtue of this section, any reference in this section to a complaint may be read |
| |
as including a reference to a part of a complaint. |
| |
37 | Treatment by Commissioner of complaints |
| 30 |
(1) | This section applies where a complaint is made to the Commissioner. |
| |
(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 |
| |
| 35 |
| The duty under paragraph (b) is subject to the following provisions of this |
| |
| |
(3) | The action which may be taken by the Commissioner to deal with the |
| |
| |
(a) | investigating the complaint, or |
| 40 |
(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, |
| |
| or any combination of the actions mentioned in paragraphs (a) and (b). |
| |
|
| |
|
| |
|
(4) | The Commissioner shall reject the whole or any part of the complaint if— |
| |
(a) | when considering the eligibility of the complaint under subsection (2), |
| |
| |
(b) | at any time before the complaint has been fully dealt with, |
| |
| the Commissioner decides that the complaint or part of the complaint is |
| 5 |
| |
(5) | The Commissioner need not decide that the whole or any part of the complaint |
| |
is ineligible so long as the Commissioner considers that it is or might be |
| |
| |
(6) | The Commissioner may (for any reason not relating to eligibility) decline to |
| 10 |
take, defer or stop taking action to deal with the whole or any part of the |
| |
| |
(7) | Where the Commissioner— |
| |
(a) | rejects part of a complaint, or |
| |
(b) | declines to take or stops taking action to deal with part of a complaint, |
| 15 |
| the rest of the complaint shall be dealt with subsequently as if it were the |
| |
complaint made by the complainant. |
| |
| |
(a) | the whole or any part of a complaint has been rejected, or |
| |
(b) | a power under subsection (6) has been exercised, |
| 20 |
| the Commissioner may decide to re-open (and take action or further action |
| |
under subsection (3) to deal with) the whole or any part of the complaint. |
| |
(9) | But a complaint or part of a complaint may not be re-opened unless the |
| |
Commissioner considers that it is or might be eligible. |
| |
(10) | Where part of a complaint is re-opened it may be dealt with subsequently as if |
| 25 |
it were a separate complaint made by the complainant. |
| |
(11) | If the Commissioner decides— |
| |
(a) | to reject the whole or any part of the complaint, |
| |
(b) | to take any step mentioned in subsection (6) or (8), |
| |
| the Commissioner shall notify the complainant (with a brief statement of the |
| 30 |
reasons for the decision) and may notify such other persons as the |
| |
| |
(12) | Notification under subsection (11) may be given orally. |
| |
(13) | If the complainant has died or is unable to act, the reference in subsection (11) |
| |
to the complainant is to be read as a reference to the person who appears to the |
| 35 |
Commissioner to be the most appropriate person to receive the notification. |
| |
(14) | 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 |
| |
| |
38 | Report on the outcome of an investigation |
| 40 |
(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. |
| |
|
| |
|
| |
|
(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. |
| 5 |
(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 |
| 10 |
| |
(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 |
| |
| 15 |
(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 |
| |
| |
39 | Recommendations by Commissioner |
| |
(1) | The Commissioner may make recommendations to a controlling authority |
| 20 |
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 |
| |
which it receives the recommendations, respond in writing to the |
| |
Commissioner setting out (with reasons) what it proposes to do about them. |
| 25 |
(3) | The Commissioner may report on that response to such persons as the |
| |
Commissioner may think fit. |
| |
(4) | Subsections (2) to (4) of section 38 apply in relation to reports under subsection |
| |
(3) above as they apply to reports required by that section. |
| |
Investigations into deaths |
| 30 |
40 | Investigation of deaths |
| |
(1) | The Commissioner shall carry out an investigation of every death falling |
| |
| |
(2) | A death falls within the deaths remit if it is of a description specified in |
| |
| 35 |
(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 |
| |
steps that should be taken for the purpose of eliminating or reducing |
| |
the risk of deaths occurring under the same or similar circumstances. |
| 40 |
(4) | Subject to that, it is for the Commissioner to determine the scope of, and the |
| |
procedure to be applied to, the investigation. |
| |
|
| |
|