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Criminal Justice and Immigration Bill


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

36

 

(8)   

No person mentioned in subsection (10) may be called upon in any

proceedings to give evidence of protected information within subsection (1)(a),

(b) or (d).

(9)   

Subsection (8) does not apply in relation to proceedings mentioned in

subsection (3)(d) to (g).

5

(10)   

Those persons are—

(a)   

the Commissioner;

(b)   

a member of the Commissioner’s staff;

(c)   

a person from whom advice is obtained by virtue of paragraph 11 of

Schedule 7.

10

(11)   

For the purposes of the law of defamation the publication of any matter by the

Commissioner for purposes connected with his functions (including functions

under this section) shall be absolutely privileged.

50      

Disclosure prejudicial to national security or contrary to public interest

(1)   

The Secretary of State may give a notice to the Commissioner stating that the

15

disclosure of—

(a)   

any document or information specified in the notice, or

(b)   

any description of document or information so specified,

   

would, in the opinion of the Secretary of State, prejudice national security or

would otherwise be contrary to the public interest.

20

(2)   

Nothing in this Part authorises or requires the Commissioner (or any member

of the Commissioner’s staff) to disclose to any person or for any purpose any

document or information covered by a current notice under subsection (1).

51      

Notification of matters of potential concern to the police or other authorities

(1)   

If while performing any functions the Commissioner forms the opinion—

25

(a)   

that there should be a criminal investigation into any matter, or

(b)   

that a controlling authority should, as a matter of urgency, take action

in relation to any matter,

   

the Commissioner may notify the police or that authority (as the case may be)

of the matter as soon as is practicable.

30

(2)   

A notification under subsection (1) may include such information relating to

the matter in question as the Commissioner thinks fit.

(3)   

Information obtained from a listed person (within the meaning of section 47)

must not be notified under this section unless the Commissioner has consulted

the listed person.

35

General

52      

Power to pay expenses

(1)   

Subject to subsection (3), the Commissioner may make payments (of such

amounts as the Commissioner thinks fit) towards the expenses of—

(a)   

a person who has made an eligible complaint; or

40

 
 

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

37

 

(b)   

a person who provides the Commissioner with information or other

assistance in relation to an eligible complaint or to an investigation

under section 40 or 42.

(2)   

The Treasury may issue guidelines in relation to—

(a)   

the circumstances under which payments under this section may be

5

made; and

(b)   

the amounts of such payments.

(3)   

The Commissioner must comply with any guidelines so issued.

53      

 Consequential amendments relating to Part 4

Schedule 10 makes consequential amendments relating to this Part.

10

54      

The Prisons and Probation Ombudsman

(1)   

The Prisons and Probation Ombudsman (“the Ombudsman”) has no power to

act in relation to—

(a)   

any complaint made after commencement;

(b)   

any death or other matter occurring after commencement;

15

(c)   

any matter referred by the Secretary of State after commencement.

(2)   

The Ombudsman shall continue to act (under the applicable terms of reference)

in relation to—

(a)   

any complaint made before commencement (“an existing complaint”),

(b)   

any death occurring before commencement (“an existing death

20

investigation”), and

(c)   

any other matter referred to the Commissioner by the Secretary of State

before commencement (“an existing referral investigation”),

   

unless the complaint, death or matter is treated by the Commissioner as one to

be dealt with under this Part by virtue of subsection (4).

25

(3)   

The Ombudsman may re-open a completed investigation into any death or

other matter referred by the Secretary of State (unless it has previously been re-

opened under section 40 or 42 by the Commissioner).

(4)   

The Commissioner may treat—

(a)   

an existing complaint (so far as relating to matters within the

30

complaints remit) as an eligible complaint;

(b)   

an existing death investigation (if it relates to a death that would fall

within the deaths remit if it occurred after commencement) as an

investigation under section 40;

(c)   

an existing referral investigation (so far as relating to matters that could

35

be the subject of a request under section 42) as an investigation under

section 42.

(5)   

For the purposes of any complaint, death or matter which is to any extent dealt

with under this Part by virtue of subsection (4), things done by or in relation to

the Ombudsman shall be treated as having been done by or in relation to the

40

Commissioner.

(6)   

In this section “commencement” means the commencement of this section.

 
 

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

38

 

55      

Interpretation of Part 4

(1)   

In this Part—

“applicable premises” means any prison, young offender institution,

secure training centre or approved premises in England and Wales;

“the complaints remit” is to be construed in accordance with section 35(2);

5

“controlling authority” means—

(a)   

a person listed in Schedule 11; or

(b)   

any person of a description specified in an order made by the

Secretary of State;

“the deaths remit” is to be construed in accordance with section 40(2);

10

“document” includes information recorded in any form;

“eligible”, in relation to a complaint or part of a complaint, means eligible

for the purposes of this Part in accordance with section 35 (and cognate

expressions are to be construed accordingly);

“excepted premises” means any premises of a description specified in an

15

order under subsection (2);

“events” includes any conduct or omission;

“immigration custody officer” means—

(a)   

a detainee custody officer;

(b)   

an officer who is performing functions conferred under section

20

154(5) of the Immigration and Asylum Act 1999 (c. 33); or

(c)   

an officer who is performing functions as a result of a contract

entered into under section 156(4)(b) of that Act;

“immigration detention premises” means premises which are the subject

of a direction under paragraph 18 of Schedule 2 to the Immigration Act

25

1971 (c. 77);

“prison officer” means an individual appointed to a post under section 7

of the Prison Act 1952 (c. 52);

“prisoner custody officer” means a person who is—

(a)   

a prisoner custody officer within the meaning of Part 4 of the

30

Criminal Justice Act 1991 (c. 53); or

(b)   

a custody officer within the meaning of Part 1 of the Criminal

Justice and Public Order Act 1994 (c. 33);

“relevant contractor” has the same meaning as in section 13(9) of the

Offender Management Act 2007 (c. 21);

35

“the relevant person”, in relation to a complaint, has the meaning given by

section 35(10);

“subordinate legislation” has the same meaning as in the Interpretation

Act 1978 (c. 30).

(2)   

The Secretary of State may by order specify descriptions of immigration

40

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).

(3)   

A reference in any provision of this Part to the High Court is—

(a)   

in so far as the provision extends to England and Wales only, a

45

reference to the High Court of England and Wales; and

(b)   

in so far as the provision extends to England and Wales, Scotland and

Northern Ireland, a reference to the High Court of England and Wales,

 
 

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

39

 

the Court of Session or the High Court of Northern Ireland, as the case

may require.

(4)   

References in this Part to a person being held at applicable premises mean, in

the case of approved premises, a person accommodated there in pursuance of

section 9(1) of the Criminal Justice and Court Services Act 2000 (c. 43).

5

(5)   

Any power under this Part to make an order modifying a provision of any

legislation includes power to amend, repeal or revoke that provision.

(6)   

In this section—

“approved premises” has the same meaning as in Part 1 of the Criminal

Justice and Court Services Act 2000;

10

“detainee custody officer” has the same meaning as in Part 8 of the

Immigration and Asylum Act 1999 (c. 33);

“prison” has the same meaning as in the Prison Act 1952 (c. 52).

56      

Power to modify certain provisions of Part 4

(1)   

The Secretary of State may by order modify Schedule 8 so as to—

15

(a)   

add a description of matter to that Schedule; or

(b)   

amend or repeal any description of matter for the time being specified

there.

(2)   

The power in subsection (1) may not be exercised so as to have the effect of

excluding any matters that fall within a description specified in Schedule 8

20

when this Act is passed.

(3)   

The Secretary of State may by order modify Schedule 9 so as to—

(a)   

add a description of death; or

(b)   

amend or repeal any description of death for the time being specified

there.

25

(4)   

The power in subsection (3) may not be exercised so as to have the effect of

excluding any deaths that fall within a description specified in Schedule 9

when this Act is passed.

(5)   

The Secretary of State may by order modify subsection (3) of section 42 so as

to—

30

(a)   

add a description of events; or

(b)   

amend or repeal any description of events for the time being specified

in that subsection.

(6)   

The Secretary of State may by order modify section 49 so as to—

(a)   

add an exception to subsection (3);

35

(b)   

amend or repeal an exception for the time being specified in that

subsection; or

(c)   

specify further circumstances in which subsection (8) does not apply.

(7)   

The power in subsection (6) may not be exercised so as to have the effect of

removing or limiting an exception contained in section 49(3)(a), (b) or (c) when

40

this Act is passed.

(8)   

Nothing in this section authorises an order under this section to make

provision that would be within the legislative competence of the Scottish

Parliament if it were contained in an Act of that Parliament.

 
 

Criminal Justice and Immigration Bill
Part 5 — The Northern Ireland Commissioner for Prison Complaints

40

 

(9)   

The power under section 170(2)(c) to make consequential provision in an order

under this section includes power to modify this or any other Act or any

subordinate legislation, whenever passed or made.

(10)   

Nothing in subsection (2), (4) or (7) prevents a power under this section being

used to remove any provision that is spent.

5

57      

Power to confer new functions on Commissioner

(1)   

The Secretary of State may by order make provision (whether by amending

this Part or otherwise) for or in connection with—

(a)   

the conferring of additional functions on the Commissioner;

(b)   

the conferring of functions on the Secretary of State in relation to any

10

additional function conferred on the Commissioner.

(2)   

Nothing in this section authorises an order under this section to make

provision that would be within the legislative competence of the Scottish

Parliament if it were contained in an Act of that Parliament.

(3)   

The power under section 170(2)(c) to make consequential provision in an order

15

under this section includes power to modify this or any other Act or any

subordinate legislation, whenever passed or made.

Part 5

The Northern Ireland Commissioner for Prison Complaints

The Commissioner

20

58      

Appointment etc. of Northern Ireland Commissioner for Prison Complaints

(1)   

There shall be a Commissioner, to be known as the Northern Ireland

Commissioner for Prison Complaints (referred to in this Part as “the

Commissioner”).

(2)   

The main functions of the Commissioner are—

25

(a)   

dealing with eligible complaints (see sections 59 to 63);

(b)   

investigating deaths falling within the deaths remit (see sections 64 and

65);

(c)   

carrying out other investigations at the request of the Secretary of State

(see sections 66 and 67).

30

(3)   

The functions of the Commissioner are performed on behalf of the Crown.

(4)   

The Secretary of State shall pay such sums towards the expenses of the

Commissioner as the Secretary of State may determine.

(5)   

Schedule 12 makes further provision about the Commissioner.

Complaints

35

59      

Eligible complaints: general

(1)   

A complaint is eligible for the purposes of this Part if—

(a)   

it is about a matter within the complaints remit;

 
 

Criminal Justice and Immigration Bill
Part 5 — The Northern Ireland Commissioner for Prison Complaints

41

 

(b)   

the matter relates to events which occurred on or after 2 May 2005;

(c)   

it is not ineligible by virtue of section 60; and

(d)   

it is made to the Commissioner by a person entitled to make it.

(2)   

A matter is within the complaints remit if it is of a description specified in Part

1 of Schedule 13 and is not an excluded matter.

5

(3)   

In subsection (2) “excluded matter” means—

(a)   

a matter specified under subsection (4);

(b)   

a matter to which subsection (5) applies; or

(c)   

a health care matter (see subsection (7)).

(4)   

The Secretary of State may by order specify matters that are to be excluded

10

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

premises specified in the order.

(5)   

This subsection applies to any matter which has been determined—

15

(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);

(c)   

by the Secretary of State or the Life Sentence Review Commissioners

under the Life Sentences (Northern Ireland) Order 2001 (S.I. 2001/2564

20

(N.I.2));

(d)   

by the Secretary of State or the Sentence Review Commissioners under

the Northern Ireland (Sentences) Act 1998 (c. 35);

(e)   

by the Secretary of State under the Northern Ireland (Remission of

Sentences) Act 1995 (c. 47).

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)   

a court or tribunal, or

(b)   

the Secretary of State, the Life Sentence Review Commissioners or the

Sentence Review Commissioners in connection with their functions

30

under any enactment mentioned in subsection (5)(c) to (e).

(7)   

A health care matter is a matter relating to—

(a)   

action taken in relation to general health services by a person

mentioned in Article 8(3)(a) to (d) of the Commissioner for Complaints

(Northern Ireland) Order 1996 (S.I. 1996/1297 (N.I.7)), or

35

(b)   

action taken in relation to a service provided under arrangements with

a health and social services body or a general health services provider

by a person mentioned in Article 8A(3)(a) to (d) of that Order.

(8)   

In subsection (7), “action”, “general health services”, “general health services

provider” and “health and social services body” have the same meaning as in

40

that Order.

(9)   

It is for the Commissioner to determine procedures for the making of

complaints (but they must not preclude the making of oral complaints).

(10)   

A person is entitled to make a complaint if that person—

(a)   

is the relevant person in relation to the complaint; or

45

 
 

Criminal Justice and Immigration Bill
Part 5 — The Northern Ireland Commissioner for Prison Complaints

42

 

(b)   

where the relevant person is dead or unable to act, appears to the

Commissioner to be an appropriate person to make the complaint.

(11)   

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

of Schedule 13 as having been affected by that matter.

5

(12)   

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 (9))

to a complaint may be read as including a reference to a part of a complaint.

60      

Eligible complaints: specific requirements applicable to all complaints

(1)   

Subject to subsection (3), a complaint is ineligible by virtue of this section if the

10

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

15

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

20

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

25

(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

30

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.

61      

Treatment by Commissioner of complaints

35

(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.

40

   

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—

 
 

 
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