|
| |
|
(8) | No person mentioned in subsection (10) may be called upon in any |
| |
proceedings to give evidence of protected information within subsection (1)(a), |
| |
| |
(9) | Subsection (8) does not apply in relation to proceedings mentioned in |
| |
subsection (3)(d) to (g). |
| 5 |
| |
| |
(b) | a member of the Commissioner’s staff; |
| |
(c) | a person from whom advice is obtained by virtue of paragraph 11 of |
| |
| 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 |
| |
(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 |
| |
| 35 |
| |
| |
(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 |
|
| |
|
| |
|
(b) | a person who provides the Commissioner with information or other |
| |
assistance in relation to an eligible complaint or to an investigation |
| |
| |
(2) | The Treasury may issue guidelines in relation to— |
| |
(a) | the circumstances under which payments under this section may be |
| 5 |
| |
(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 |
| |
| |
(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) |
| |
| |
(a) | any complaint made before commencement (“an existing complaint”), |
| |
(b) | any death occurring before commencement (“an existing death |
| 20 |
| |
(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 |
| |
| |
(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 |
| |
(6) | In this section “commencement” means the commencement of this section. |
| |
|
| |
|
| |
|
55 | Interpretation of Part 4 |
| |
| |
“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 |
| |
| |
“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 |
| |
“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 |
| |
| |
“subordinate legislation” has the same meaning as in the Interpretation |
| |
| |
(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 |
| |
| |
(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, |
| |
|
| |
|
| |
|
the Court of Session or the High Court of Northern Ireland, as the case |
| |
| |
(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. |
| |
| |
“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 |
| |
| |
(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 |
| |
(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 |
| |
| 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 |
| |
| |
(5) | The Secretary of State may by order modify subsection (3) of section 42 so as |
| |
| 30 |
(a) | add a description of events; or |
| |
(b) | amend or repeal any description of events for the time being specified |
| |
| |
(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 |
| |
| |
(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 |
| |
(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. |
| |
|
| |
|
| |
|
(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. |
| |
| |
The Northern Ireland Commissioner for Prison Complaints |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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. |
| |
| 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; |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
(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 |
| |
(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 |
|
| |
|
| |
|
(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) | 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 |
| |
(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 |
| 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 |
| |
| 40 |
| 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 |
| |
| |
|
| |
|