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 5 — The Northern Ireland Commissioner for Prison Complaints
43

(a)
investigating the complaint, or
(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 paragraph (a) and (b).
5
(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
10
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
15
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,
20

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 (7)(b) has been exercised,
25

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
30
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
35
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
40
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.

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Part 5 — The Northern Ireland Commissioner for Prison Complaints
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62
Report on the outcome of an investigation
(1)
If a complaint has been investigated or otherwise dealt with, the
Commissioner—
(a)
shall make a report on the outcome of the investigation to the
complainant; and
5
(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;
10
(d)
publish the whole or any part of a report.
(3)
But the Commissioner shall not under subsection (2)(d)—
(a)
identify the complainant without the complainant’s consent;
(b)
if the complainant is not the relevant person in relation to the
complaint, identify the relevant person without the consent of the
15
complainant;
(c)
identify any individual from whom any information in the report was
received; or
(d)
except where the Commissioner thinks it necessary in the public
interest, identify any individual to whom any information in the report
20
relates.
(4)
Subsection (3)(c) and (d) do not apply in relation to the complainant or (if
different) the relevant person.
(5)
If the complainant has died or is unable to act—
(a)
the report required under subsection (1)(a) shall be made to the person
25
who appears to the Commissioner to be the most appropriate person to
receive it; and
(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.
30
63
Recommendations by Commissioner
(1)
The Commissioner may make recommendations to a controlling authority
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
35
which it receives the recommendations, respond in writing to the
Commissioner setting out (with reasons) what it proposes to do about them.
(3)
The Commissioner may report on that response to such persons as the
Commissioner may think fit.
(4)
Subsections (2) to (5) of section 62 apply in relation to reports under subsection
40
(3) above as they apply in relation to reports required by that section.

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Part 5 — The Northern Ireland Commissioner for Prison Complaints
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Investigations into deaths
64
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
5
Schedule 14.
(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
10
the risk of deaths occurring under the same or similar circumstances.
(4)
Subject to that, it is for the Commissioner to determine the scope of, and the
procedure to be applied to, the investigation.
(5)
The Commissioner may defer the whole or any part of the investigation at the
request of a person who —
15
(a)
is conducting a criminal investigation, and
(b)
considers that that investigation might be adversely affected by the
Commissioner’s investigation.
(6)
In subsection (5) “criminal investigation” means an investigation conducted by
police officers or other persons with a view to ascertaining whether an offence
20
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
(b)
a death previously investigated by the Prisoner Ombudsman for
Northern Ireland that would, if it occurred after the commencement of
25
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.
(8)
The Commissioner may make recommendations to a controlling authority
about any matter arising from an investigation.
30
(9)
Such recommendations may be made during the investigation or after its
conclusion.
65
Reports on the outcome of a death investigation
(1)
This section applies where the Commissioner has carried out an investigation
of a death under section 64.
35
(2)
The Commissioner shall make a report to—
(a)
the Secretary of State;
(b)
the controlling authority appearing to the Commissioner to have the
most direct responsibility over the matters covered by the investigation
(where that authority is not the Secretary of State); and
40
(c)
a coroner who is holding or who is to hold an inquest into the death.

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Part 5 — The Northern Ireland Commissioner for Prison Complaints
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(3)
The Commissioner may also make a report to any other person the
Commissioner considers should receive a report.
(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,
5
(b)
was the partner, or other close relative, of the deceased at the time of the
death, or
(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
10
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.
(6)
In subsections (2) to (4) “report” means a report in writing on the outcome of
the investigation.
(7)
The Commissioner may—
15
(a)
make different reports under this section to different persons;
(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.
(8)
The Commissioner must not under subsection (7)(c)—
20
(a)
identify the deceased person without the consent of a personal
representative of that person,
(b)
identify any individual from whom any information in the report was
received, or
(c)
except where the Commissioner thinks it necessary in the public
25
interest, identify any individual to whom any information in the report
relates.
(9)
Subsection (8)(c) does not apply in relation to the deceased person.
Investigations requested by the Secretary of State
66
Investigations requested by the Secretary of State
30
(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
under this section.
(3)
A request may specify any matter relating to events which have (or may have)
35
occurred—
(a)
at applicable premises;
(b)
while a person is in the custody of prison officers or prisoner custody
officers, or under their control or escort, anywhere in the world;
(c)
in the course of exercising any functions of the Secretary of State
40
relating to prisons or persons detained in prison;
(d)
in the course of exercising any functions of a prison officer or prisoner
custody officer.

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Part 5 — The Northern Ireland Commissioner for Prison Complaints
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(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)
It is the duty of the Commissioner to investigate any matter which is the subject
of a request under this section.
(6)
Subject to any directions given to the Commissioner by the Secretary of State,
5
it is for the Commissioner to determine the scope of, and the procedure to be
applied to, an investigation under this section.
(7)
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 Prisoner Ombudsman for Northern
10
Ireland 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 section);

and a re-opened investigation shall be treated for the purposes of this Part as a
separate investigation under this section.
15
(8)
In subsection (3)—
(a)
the reference in paragraph (c) to the Secretary of State is to the Secretary
of State having responsibility for prisons in Northern Ireland;
(b)
the references to functions are to functions conferred by or under any
Act or Northern Ireland legislation (including, in the case of prison
20
officers, functions exercisable by virtue of section 8 of the Prison Act
(Northern Ireland) 1953 (N.I. 18) (constabulary powers etc.).
67
Reports on the outcome of an investigation under section 66
(1)
This section applies where the Commissioner has carried out an investigation
under section 66.
25
(2)
The Commissioner shall report in writing on the outcome of the investigation
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
30
may—
(a)
make different reports under this section to different persons;
(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.
35
(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)
without the consent of a personal representative of that person.
(5)
In the case of any investigation, a report published under subsection (3)(c)
must not—
40
(a)
identify any individual from whom any information in the report was
received, or
(b)
except where the Commissioner thinks it necessary in the public
interest, identify any individual to whom any information in the report
relates.
45

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Part 5 — The Northern Ireland Commissioner for Prison Complaints
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(6)
Where the investigation relates to a death or matters connected with a death,
subsection (5)(b) does not apply in relation to the deceased person.
General powers and duties
68
Powers of Commissioner to obtain information etc.
(1)
This section confers powers on the Commissioner for the purposes of any
5
investigation under this Part.
(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—
10
(a)
the attendance and examination of witnesses (including the
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
15
premises (other than premises used solely as a dwelling) is given to the
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.
20
(6)
The Commissioner may require any person who is at the premises at those
times to provide such reasonable assistance as the Commissioner may specify.
69
Exceptions etc. to Commissioner’s powers under section 68
(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
25
compelled to do in civil proceedings before the High Court.
(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.
30
(3)
The Crown is not entitled in relation to an investigation to any privilege in
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
35
any Committee of the Cabinet; or
(b)
to produce any document relating to such proceedings.
(5)
For this purpose a certificate which—
(a)
is issued by the Secretary of the Cabinet with the approval of the Prime
Minister, and
40
(b)
certifies that any information or document (or part of a document)
relates to any proceedings mentioned in subsection (4),

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Part 5 — The Northern Ireland Commissioner for Prison Complaints
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is conclusive of the matters certified.
(6)
In this section “investigation” means any investigation under this Part.
70
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.
5
(2)
The condition is that the person—
(a)
has failed to comply with a requirement imposed by virtue of section
68 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,
10
if the investigation were proceedings in the High Court, would
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.
15
71
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 64 or 66.
Disclosure of information
20
72
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,
a complaint;
25
(b)
in carrying out or otherwise in connection with an investigation under
section 64 or 66; or
(c)
from the Information Commissioner by virtue of section 76 of the
Freedom of Information Act 2000 (c. 36).
(2)
Such information ceases to be protected information 70 years after it is first
30
obtained as mentioned in subsection (1).
(3)
Protected information shall not be disclosed except—
(a)
for the purposes of any of the Commissioner’s functions in relation to
a complaint or to matters arising in connection with it;
(b)
in the case of information obtained in connection with an investigation,
35
for the purposes of—
(i)
an investigation under section 64 or 66; or
(ii)
any of the Commissioner’s functions in relation to such an
investigation or to matters arising in connection with it;
(c)
for the purposes of proceedings for—
40
(i)
an offence under the Official Secrets Act 1989 (c. 6) alleged to
have been committed in relation to protected information; or