Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
29

(5)
The Commissioner may defer the whole or any part of the investigation at the
request of a person who—
(a)
is conducting a criminal investigation, and
(b)
considers that that investigation might be adversely affected by the
Commissioner’s investigation.
5
(6)
In subsection (5) “criminal investigation” means an investigation conducted by
police officers or other persons with a view to ascertaining whether an offence
has been committed or whether a person should be charged with an offence.
(7)
The Commissioner may at any time reopen the investigation of—
(a)
a death previously investigated under this section; or
10
(b)
a death previously investigated by the Prisons and Probation
Ombudsman that would, if it occurred after the commencement of this
section, fall within the deaths remit;

and a re-opened investigation shall be treated for the purposes of this Part as a
separate investigation under this section.
15
(8)
The Commissioner may make recommendations to a controlling authority
about any matter arising from an investigation.
(9)
Such recommendations may be made during the investigation or after its
conclusion.
41
Reports on the outcome of a death investigation
20
(1)
This section applies where the Commissioner has carried out an investigation
of a death under section 40.
(2)
The Commissioner shall make a report to—
(a)
the Secretary of State;
(b)
the controlling authority appearing to the Commissioner to have the
25
most direct responsibility over the matters covered by the investigation
(where that authority is not the Secretary of State); and
(c)
a coroner who is holding or who is to hold an inquest into the death.
(3)
The Commissioner may also make a report to any other person the
Commissioner considers should receive a report.
30
(4)
The Commissioner shall exercise the power under subsection (3) to ensure that
a report is made to at least one person who—
(a)
is a personal representative of the deceased,
(b)
was the partner, or other relative, of the deceased at the time of the
death, or
35
(c)
appears to the Commissioner to have been a friend of the deceased at
the time of the death.
(5)
The duty under subsection (4) does not apply if, after taking all reasonable
steps to ascertain the identity of, and a means of contacting, a person falling
within that subsection, the Commissioner is unable to comply with it.
40
(6)
In subsections (2) to (4) “report” means a report in writing on the outcome of
the investigation.
(7)
The Commissioner may—
(a)
make different reports under this section to different persons;

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
30

(b)
show any person a draft of the whole or any part of a report to be made
under this section;
(c)
publish the whole or any part of a report made under this section;

but the name of the deceased person must not be published under paragraph
(c) without the consent of a personal representative of that person.
5
Investigations requested by the Secretary of State
42
Investigations requested by the Secretary of State
(1)
The Secretary of State may request the Commissioner to investigate any matter
mentioned in subsection (3) or (4) which is specified in the request.
(2)
The Secretary of State shall consult the Commissioner before making a request
10
under this section.
(3)
A request may specify any matter relating to events which have (or may have)
occurred—
(a)
at applicable premises;
(b)
while a person is in the custody of prison officers or prisoner custody
15
officers, or under their control or escort, anywhere in the world;
(c)
in the course of exercising any functions of the Secretary of State
relating to prisons or persons detained in prison;
(d)
in the course of exercising any functions of a prison officer or prisoner
custody officer;
20
(e)
in the course of the activities of a relevant contractor;
(f)
in the course of the activities of—
(i)
a local probation board or a provider of probation services, or
(ii)
an officer of a local probation board or an officer of a provider
of probation services,
25

in connection with responsibilities assumed by the board, provider or
officer in relation to a person who has been charged with or convicted
of an offence;
(g)
at immigration detention premises which are not excepted premises;
(h)
while a person is in the custody of immigration custody officers, or
30
under their control or escort, anywhere in the world (other than at
immigration detention premises).
(4)
A request may also specify any matter the Secretary of State considers is (or
may be) linked to events falling within subsection (3).
(5)
A request under this section which—
35
(a)
is made by virtue of subsection (3)(g) and specifies a matter relating to
events which have (or may have) occurred at immigration detention
premises in Scotland which are not excepted premises, or
(b)
is made by virtue of subsection (4) and specifies a matter which the
Secretary of State considers is (or may be) linked to events which have
40
(or may have) occurred at immigration detention premises in Scotland
which are not excepted premises,

shall not be made unless the Secretary of State considers that those events are
(or may be) linked to a reserved matter within the meaning of the Scotland Act
1998 (c. 46).
45

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(6)
The Secretary of State shall consult the Scottish Ministers before making a
request by virtue of subsection (4) which specifies a matter which appears to
involve the investigation of events which have (or may have) occurred in
Scotland.
(7)
It is the duty of the Commissioner to investigate any matter which is the subject
5
of a request under this section.
(8)
The Commissioner shall consult the Lord Advocate before investigating a
matter relating to events which have (or may have) occurred in Scotland.
(9)
The Commissioner shall defer such an investigation if it appears to the
Commissioner that it might adversely affect a criminal investigation, or an
10
investigation of a death, which is being or is to be conducted by the Lord
Advocate or the procurator fiscal.
(10)
Subject to any directions given to the Commissioner by the Secretary of State,
it is for the Commissioner to determine the scope of, and the procedure to be
applied to, an investigation under this section.
15
(11)
Subject to any such directions, the Commissioner may at any time reopen—
(a)
an investigation previously carried out under this section; or
(b)
an investigation carried out by the Prisons and Probation Ombudsman
of matters referred to the Ombudsman by the Secretary of State (so far
as relating to matters that could be the subject of a request under this
20
section);

and a re-opened investigation shall be treated for the purposes of this Part as a
separate investigation under this section.
(12)
In subsection (3)—
(a)
the reference in paragraph (c) to the Secretary of State is to the Secretary
25
of State having responsibility for prisons;
(b)
the references to functions are to functions conferred by or under any
Act (including, in the case of prison officers, functions exercisable by
virtue of section 8 of the Prison Act 1952 (c. 52) (constabulary powers
etc.));
30
(c)
the reference to a local probation board includes a reference to a person
acting in pursuance of arrangements of the kind mentioned in section
5(2) of the Criminal Justice and Court Services Act 2000 (c. 43); and
(d)
the reference to a provider of probation services includes a reference to
a person acting in pursuance of arrangements of the kind mentioned in
35
section 3(3)(c)(i) of the Offender Management Act 2007 (c. 21).
43
Reports on the outcome of an investigation under section 42
(1)
This section applies where the Commissioner has carried out an investigation
following a request by the Secretary of State under section 42.
(2)
The Commissioner shall report in writing on the outcome of the investigation
40
to—
(a)
the Secretary of State; and
(b)
such other persons (if any) as the Secretary of State may direct.
(3)
Subject to any directions given by the Secretary of State, the Commissioner
may—
45
(a)
make different reports under this section to different persons;

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(b)
show any person a draft of the whole or any part of a report to be made
under this section;
(c)
publish the whole or any part of a report made under this section.
(4)
Where the investigation relates to a death or matters connected with a death,
the name of the deceased person must not be published under subsection (3)(c)
5
without the consent of a personal representative of that person.
General powers and duties
44
Powers of Commissioner to obtain information etc.
(1)
This section confers powers on the Commissioner for the purposes of any
investigation under this Part.
10
(2)
The Commissioner may require a person the Commissioner thinks is able to
provide information or produce a document relevant to the investigation to do
so.
(3)
The Commissioner has the same powers as the High Court in relation to—
(a)
the attendance and examination of witnesses (including the
15
administration of oaths and affirmations and the examination of
witnesses abroad); and
(b)
the production of documents.
(4)
The Commissioner may also require a person to secure that access to any
premises (other than premises used solely as a dwelling) is given to the
20
Commissioner or members of the Commissioner’s staff for the purpose of
inspecting the premises or any documents or other things situated on them.
(5)
Such access must be given at such reasonable times as the Commissioner may
specify.
(6)
The Commissioner may require any person who is at the premises at those
25
times to provide such reasonable assistance as the Commissioner may specify.
45
Exceptions etc. to Commissioner’s powers under section 44
(1)
Subject to subsection (3), no person shall be compelled by virtue of this Part to
give any evidence or do any other thing which that person could not be
compelled to do in civil proceedings before the High Court.
30
(2)
No obligation to maintain secrecy or other restriction on the disclosure of
information obtained by or provided to persons in Her Majesty’s service,
whether imposed by or under any enactment or by any rule of law, applies in
relation to an investigation.
(3)
The Crown is not entitled in relation to an investigation to any privilege in
35
respect of the production of documents or of the giving of evidence as would
otherwise be allowed in legal proceedings.
(4)
No person shall be compelled or authorised by virtue of this Part—
(a)
to provide any information relating to proceedings of the Cabinet or of
any Committee of the Cabinet; or
40
(b)
to produce any document relating to such proceedings.
(5)
For this purpose a certificate which—

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(a)
is issued by the Secretary of the Cabinet with the approval of the Prime
Minister, and
(b)
certifies that any information or document (or part of a document)
relates to any proceedings mentioned in subsection (4),

is conclusive of the matters certified.
5
(6)
In this section “investigation” means any investigation under this Part.
46
Obstruction and contempt
(1)
The Commissioner may, if satisfied that the condition in subsection (2) is met
in relation to a person, refer the matter to the High Court.
(2)
The condition is that the person—
10
(a)
has failed to comply with a requirement imposed by virtue of section
44 or has otherwise, without lawful excuse, obstructed the performance
of any of the Commissioner’s functions; or
(b)
has committed an act or omission in relation to an investigation which,
if the investigation were proceedings in the High Court, would
15
constitute contempt of court.
(3)
The High Court may inquire into the matter referred by the Commissioner and,
if satisfied that the condition in subsection (2) is met, may deal with the person
concerned as if that person were in contempt of court.
47
Working with other ombudsmen etc.
20
(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
(b)
consults that person about that matter.
25
(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
(b)
consults the Commissioner about that matter.
30
(3)
The Commissioner and the listed person may co-operate with each other in
relation to the matter.
(4)
That co-operation may include (among other things)—
(a)
carrying out a joint investigation;
(b)
preparing a joint report;
35
(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
Ombudsman.
(6)
In this section “listed person” means—
40
The Parliamentary Commissioner for Administration
A Local Commissioner under Part 3 of the Local Government Act 1974
(c. 7))

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Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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The Health Service Commissioner for England
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
5
in accordance with section 48) must be obtained before the Commissioner
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
10
(c. 7)
The Health Service Commissioner for England.
(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
15
there.
(9)
The power under section 170(2)(c) to make consequential provision in an order
under subsection (8) includes power to modify this Act, any other Act or
subordinate legislation, Northern Ireland legislation or an Act of the Scottish
Parliament, whenever passed or made.
20
48
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 40 or 42.
.
25
Disclosure of information
49
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,
30
a complaint;
(b)
in carrying out or otherwise in connection with an investigation under
section 40 or 42;
(c)
from the Information Commissioner by virtue of section 76 of the
Freedom of Information Act 2000 (c. 36); or
35
(d)
from a listed person (within the meaning of section 47) 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—
40
(a)
for the purposes of any of the Commissioner’s functions in relation to
a complaint or to matters arising in connection with it;

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Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(b)
in the case of information obtained in connection with an investigation,
for the purposes of—
(i)
an investigation under section 40 or 42, or
(ii)
any of the Commissioner’s functions in relation to such an
investigation or to matters arising in connection with it;
5
(c)
for the purposes of any provision of section 47;
(d)
for the purposes of proceedings for—
(i)
an offence under the Official Secrets Act 1989 (c. 6) alleged to
have been committed in relation to protected information; or
(ii)
an offence of perjury alleged to have been committed in relation
10
to anything being done in connection with the Commissioner’s
functions;

or for the purposes of an investigation with a view to the taking of such
proceedings;
(e)
for the purposes of proceedings under section 46;
15
(f)
to a coroner (or a person acting on behalf of a coroner) for the purposes
of an inquest;
(g)
for the purposes of an investigation of the Lord Advocate or a
procurator fiscal;
(h)
to Her Majesty’s Chief Inspector of Prisons for England and Wales or
20
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
Information Commissioner;
(j)
in the case of information to which subsection (7) applies, to any person
25
to whom the Commissioner thinks it should be disclosed in the public
interest.
(4)
This subsection applies to information if it appears to the Commissioner to
relate to—
(a)
a matter in respect of which the Information Commissioner could
30
exercise a power conferred by an enactment mentioned in subsection
(5); or
(b)
the commission of an offence mentioned in subsection (6).
(5)
Those enactments are—
(a)
Part 5 of the Data Protection Act 1998 (c. 29);
35
(b)
section 48 of the Freedom of Information Act 2000 (c. 36);
(c)
Part 4 of that Act.
(6)
Those offences are offences under—
(a)
any provision of the Data Protection Act 1998 other than paragraph 12
of Schedule 9;
40
(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
(b)
it does not fall within paragraph (a) but the Commissioner is
45
nevertheless of the opinion that it should be disclosed for the purpose
of enabling such a threat to be dealt with.