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
Part 3 — Appeals
22

(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
(3) insert—
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—
“Supplementary
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
Wales
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
section 26(2)) insert—
“(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

Criminal Justice and Immigration Bill
Part 3 — Appeals
23

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
Ireland
(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
section 27(2)) insert—
“(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.”
Appeals by prosecution
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).”

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
24

Miscellaneous
32
Review of sentence on reference by Attorney General
(1)
Section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) is
amended as follows.
(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
sentence);
(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
sentences).”
(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)
Order 2001.”.
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
criminal cases.
Part 4
Her Majesty’s Commissioner for Offender Management and Prisons
The Commissioner
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
Commissioner”).
(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

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(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.
Complaints
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
1992 (c. 53); or
25
(c)
by the Parole Board.
(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.

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(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) has not been met.
(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
complaint;
(b)
that the substance of the complaint has been communicated to the
responsible authority and it has had a reasonable opportunity to deal
with it; and
(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
with the complaint.
35

The duty under paragraph (b) is subject to the following provisions of this
section.
(3)
The action which may be taken by the Commissioner to deal with the
complaint is—
(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).

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(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),
or
(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
ineligible.
(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
eligible.
(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
complaint.
(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.
(8)
Where—
(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
Commissioner thinks fit.
(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
complaint.
38
Report on the outcome of an investigation
40
(1)
If a complaint has been investigated or otherwise dealt with, the
Commissioner—
(a)
shall make a report on the outcome to the complainant; and
(b)
may make a report on that outcome to any other person.

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(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
consent; or
(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
the complainant.
(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
receive it; and
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
consent.
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
within the deaths remit.
(2)
A death falls within the deaths remit if it is of a description specified in
Schedule 9.
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.