|
| |
|
84 | Procedure for decisions by the Secretary of State |
| |
(1) | In considering whether to make a decision of the kind mentioned in condition |
| |
A in section 82, the Secretary of State must, in particular, consider— |
| |
(a) | any representations or evidence included in the application, and |
| |
(b) | any available record of the investigation of the offence and of any |
| 5 |
proceedings relating to it that the Secretary of State considers to be |
| |
| |
(2) | The Secretary of State may not hold an oral hearing for the purpose of deciding |
| |
whether to make a decision of the kind mentioned in condition A in section 82. |
| |
(3) | Subsection (4) applies if the Secretary of State— |
| 10 |
(a) | decides that it appears as mentioned in condition A in section 82, or |
| |
(b) | makes a different decision in relation to the matters mentioned in that |
| |
| |
(4) | The Secretary of State must— |
| |
(a) | record the decision in writing, and |
| 15 |
(b) | give notice of it to the applicant. |
| |
| |
85 | Effect of disregard on police and other records |
| |
(1) | The Secretary of State must by notice direct the relevant data controller to |
| |
delete details, contained in relevant official records, of a disregarded |
| 20 |
| |
(2) | A notice under subsection (1) may be given at any time after condition A in |
| |
section 82 is met but no deletion may have effect before condition B in that |
| |
| |
(3) | Subject to that, the relevant data controller must delete the details as soon as |
| 25 |
| |
(4) | Having done so, the relevant data controller must give notice to the person |
| |
who has the disregarded conviction or caution that the details of it have been |
| |
| |
| 30 |
“delete”, in relation to such relevant official records as may be prescribed, |
| |
means record with the details of the conviction or caution concerned— |
| |
(a) | the fact that it is a disregarded conviction or caution, and |
| |
(b) | the effect of it being such a conviction or caution, |
| |
“the names database” means the names database held by the National |
| 35 |
Policing Improvement Agency for the use of constables, |
| |
“official records” means records containing information about persons |
| |
convicted of, or cautioned for, offences and kept by any court, police |
| |
force, government department or local or other public authority in |
| |
England and Wales for the purposes of its functions, |
| 40 |
“prescribed” means prescribed by order of the Secretary of State, |
| |
“relevant data controller” means— |
| |
|
| |
|
| |
|
(a) | in relation to the names database, any chief officer of police of a |
| |
police force in England and Wales who is a data controller in |
| |
relation to the details concerned, |
| |
(b) | in relation to other relevant official records, such person as may |
| |
| 5 |
“relevant official records” means— |
| |
(a) | the names database, and |
| |
(b) | such other official records as may be prescribed. |
| |
(6) | An order under this section— |
| |
(a) | may make different provision for different purposes, |
| 10 |
(b) | is to be made by statutory instrument which is subject to annulment in |
| |
pursuance of a resolution of either House of Parliament. |
| |
86 | Effect of disregard for disclosure and other purposes |
| |
(1) | A person who has a disregarded conviction or caution is to be treated for all |
| |
purposes in law as if the person has not— |
| 15 |
(a) | committed the offence, |
| |
(b) | been charged with, or prosecuted for, the offence, |
| |
(c) | been convicted of the offence, |
| |
(d) | been sentenced for the offence, or |
| |
(e) | been cautioned for the offence. |
| 20 |
| |
(a) | no evidence is to be admissible in any proceedings before a judicial |
| |
authority exercising its jurisdiction or functions in England and Wales |
| |
to prove that the person has done, or undergone, anything within |
| |
subsection (1)(a) to (e), and |
| 25 |
(b) | the person is not, in any such proceedings, to be asked (and, if asked, is |
| |
not to be required to answer) any question relating to the person’s past |
| |
which cannot be answered without acknowledging or referring to the |
| |
conviction or caution or any circumstances ancillary to it. |
| |
(3) | Where a question is put to a person, other than in such proceedings, seeking |
| 30 |
information with respect to the previous convictions, cautions, offences, |
| |
conduct or circumstances of any person— |
| |
(a) | the question is to be treated as not relating to any disregarded |
| |
conviction or caution, or any circumstances ancillary to it (and the |
| |
answer to the question may be framed accordingly), and |
| 35 |
(b) | the person questioned is not to be subjected to any liability or otherwise |
| |
prejudiced in law by reason of any failure to acknowledge or disclose |
| |
that conviction or caution or any circumstances ancillary to it in |
| |
| |
(4) | Any obligation imposed on any person by any enactment or rule of law or by |
| 40 |
the provisions of any agreement or arrangement to disclose any matters to any |
| |
other person is not to extend to requiring the disclosure of a disregarded |
| |
conviction or caution or any circumstances ancillary to it. |
| |
(5) | A disregarded conviction or caution, or any circumstances ancillary to it, is not |
| |
| 45 |
(a) | dismissing or excluding a person from any office, profession, |
| |
occupation or employment, or |
| |
|
| |
|
| |
|
(b) | prejudicing the person in any way in any office, profession, occupation |
| |
| |
(6) | This section is subject to section 87 but otherwise applies despite any |
| |
enactment or rule of law to the contrary. |
| |
(7) | See also section 88 (meaning of “proceedings before a judicial authority” and |
| 5 |
“circumstances ancillary to a conviction or caution”). |
| |
87 | Saving for Royal pardons etc. |
| |
Nothing in section 86 affects any right of Her Majesty, by virtue of Her Royal |
| |
prerogative or otherwise, to grant a free pardon, to quash any conviction or |
| |
sentence, or to commute any sentence. |
| 10 |
88 | Section 86: supplementary |
| |
(1) | In section 86 “proceedings before a judicial authority” includes (in addition to |
| |
proceedings before any of the ordinary courts of law) proceedings before any |
| |
tribunal, body or person having power— |
| |
(a) | by virtue of any enactment, law, custom or practice, |
| 15 |
(b) | under the rules governing any association, institution, profession, |
| |
occupation or employment, or |
| |
(c) | under any provision of an agreement providing for arbitration with |
| |
respect to questions arising under that agreement, |
| |
| to determine any question affecting the rights, privileges, obligations or |
| 20 |
liabilities of any person, or to receive evidence affecting the determination of |
| |
| |
(2) | For the purposes of section 86, circumstances ancillary to a conviction are any |
| |
| |
(a) | the offence which was the subject of the conviction; |
| 25 |
(b) | the conduct constituting the offence; |
| |
(c) | any process or proceedings preliminary to the conviction; |
| |
(d) | any sentence imposed in respect of the conviction; |
| |
(e) | any proceedings (whether by way of appeal or otherwise) for |
| |
reviewing the conviction or any such sentence; |
| 30 |
(f) | anything done in pursuance of, or undergone in compliance with, any |
| |
| |
(3) | For the purposes of section 86, circumstances ancillary to a caution are any |
| |
| |
(a) | the offence which was the subject of the caution; |
| 35 |
(b) | the conduct constituting the offence; |
| |
(c) | any process preliminary to the caution (including consideration by any |
| |
person of how to deal with the offence and the procedure for giving the |
| |
| |
(d) | any proceedings for the offence which take place before the caution is |
| 40 |
| |
(e) | anything which happens after the caution is given for the purpose of |
| |
bringing any such proceedings to an end; |
| |
(f) | any judicial review proceedings relating to the caution; |
| |
|
| |
|
| |
|
(g) | in the case of a warning under section 65 of the Crime and Disorder Act |
| |
1998 (reprimands and warnings for persons aged under 18), anything |
| |
done in pursuance of, or undergone in compliance with, a requirement |
| |
to participate in a rehabilitation programme under section 66(2) of that |
| |
| 5 |
Appeals and other supplementary provision |
| |
89 | Appeal against refusal to disregard convictions or cautions |
| |
(1) | The applicant may appeal to the High Court if— |
| |
(a) | the Secretary of State makes a decision of the kind mentioned in section |
| |
| 10 |
(b) | the High Court gives permission for an appeal against the decision. |
| |
(2) | On such an appeal, the High Court must make its decision only on the basis of |
| |
the evidence that was available to the Secretary of State. |
| |
(3) | If the High Court decides that it appears as mentioned in condition A in section |
| |
82, it must make an order to that effect. |
| 15 |
(4) | Otherwise it must dismiss the appeal. |
| |
(5) | A conviction or caution to which an order under subsection (3) relates becomes |
| |
a disregarded conviction or caution when the period of 14 days beginning with |
| |
the day on which the order was made has ended. |
| |
(6) | There is no appeal from a decision of the High Court under this section. |
| 20 |
| |
(1) | The Secretary of State may appoint persons to advise whether, in any case |
| |
referred to them by the Secretary of State, the Secretary of State should decide |
| |
as mentioned in condition A in section 82. |
| |
(2) | The Secretary of State may disclose to a person so appointed such information |
| 25 |
(including anything within section 84(1)(a) or (b)) as the Secretary of State |
| |
considers relevant to the provision of such advice. |
| |
(3) | The Secretary of State may pay expenses and allowances to a person so appointed. |
| |
91 | Interpretation: Chapter 3 |
| |
| 30 |
| |
(a) | a caution given to a person in England and Wales in respect of |
| |
an offence which, at the time the caution is given, that person |
| |
| |
(b) | a reprimand or warning given under section 65 of the Crime |
| 35 |
and Disorder Act 1998 (reprimands and warnings for persons |
| |
| |
| |
(a) | a finding that a person is guilty of an offence in respect of |
| |
conduct which was the subject of service disciplinary |
| 40 |
| |
|
| |
|
| |
|
(b) | a conviction in respect of which an order has been made |
| |
discharging the person concerned absolutely or conditionally, |
| |
| |
(c) | a finding in any criminal proceedings (including a finding |
| |
linked with a finding of insanity) that a person has committed |
| 5 |
an offence or done the act or made the omission charged, |
| |
“disregarded caution” is a caution which has become a disregarded |
| |
caution by virtue of this Chapter, |
| |
“disregarded conviction” is a conviction which has become a disregarded |
| |
conviction by virtue of this Chapter, |
| 10 |
“document” includes information recorded in any form and, in relation to |
| |
information recorded otherwise than in legible form, references to its |
| |
provision or production include providing or producing a copy of the |
| |
information in legible form, |
| |
“information” includes documents, |
| 15 |
“notice” means notice in writing, |
| |
“official records” has the meaning given by section 85(5), |
| |
| |
(a) | any punishment awarded, and |
| |
(b) | any order made by virtue of Schedule 5A to the Army Act 1955, |
| 20 |
Schedule 5A to the Air Force Act 1955 or Schedule 4A to the |
| |
Naval Discipline Act 1957, |
| |
in respect of a finding that a person is guilty of an offence in respect of |
| |
conduct which was the subject of service disciplinary proceedings, |
| |
“service disciplinary proceedings” means any proceedings (whether in |
| 25 |
England and Wales or elsewhere)— |
| |
(a) | under the Naval Discipline Act 1866, the Army Act 1881, the Air |
| |
Force Act 1917, the Army Act 1955, the Air Force Act 1955 or the |
| |
Naval Discipline Act 1957 (whether before a court-martial or |
| |
before any other court or person authorised under the |
| 30 |
enactment concerned to award a punishment in respect of an |
| |
| |
(b) | before a Standing Civilian Court established under the Armed |
| |
| |
(2) | Paragraph (b) of the definition of “conviction” applies despite the following |
| 35 |
(which deem a conviction of a person discharged not to be a conviction)— |
| |
(a) | section 14 of the Powers of Criminal Courts (Sentencing) Act 2000, and |
| |
(b) | section 187 of the Armed Forces Act 2006 or any corresponding earlier |
| |
| |
(3) | The references in section 82(1) to offences under particular provisions are to be |
| 40 |
read as including references to offences under— |
| |
(a) | section 45 of the Naval Discipline Act 1866, |
| |
(b) | section 41 of the Army Act 1881, |
| |
(c) | section 41 of the Air Force Act 1917, |
| |
(d) | section 70 of the Army Act 1955, |
| 45 |
(e) | section 70 of the Air Force Act 1955, or |
| |
(f) | section 42 of the Naval Discipline Act 1957, |
| |
| which are such offences by virtue of those provisions. |
| |
|
| |
|
| |
|
(4) | The reference in section 82(3)(b) to an offence under section 71 of the Sexual |
| |
Offences Act 2003 is to be read as including a reference to an offence under |
| |
section 42 of the Armed Forces Act 2006 which is such an offence by virtue of |
| |
section 71 of the Act of 2003. |
| |
(5) | In this Chapter a reference to an offence includes— |
| 5 |
(a) | a reference to an attempt, conspiracy or incitement to commit that |
| |
| |
(b) | a reference to aiding, abetting, counselling or procuring the |
| |
commission of that offence. |
| |
(6) | In the case of an attempt, conspiracy or incitement, the references in this |
| 10 |
Chapter to the conduct constituting the offence are references to the conduct to |
| |
which the attempt, conspiracy or incitement related (whether or not that |
| |
| |
| |
Freedom of information and data protection |
| 15 |
Publication of certain datasets |
| |
92 | Release and publication of datasets held by public authorities |
| |
(1) | The Freedom of Information Act 2000 is amended as follows. |
| |
(2) | In section 11 (means by which communication to be made)— |
| |
(a) | after subsection (1) insert— |
| 20 |
| |
(a) | an applicant makes a request for information to a public |
| |
authority in respect of information that is, or forms part |
| |
of, a dataset held by the public authority, and |
| |
(b) | on making the request for information, the applicant |
| 25 |
expresses a preference for communication by means of |
| |
the provision to the applicant of a copy of the |
| |
information in electronic form, |
| |
| the public authority must, so far as reasonably practicable, |
| |
provide the information to the applicant in an electronic form |
| 30 |
which is capable of re-use.” |
| |
(b) | In subsection (4), for “subsection (1)” substitute “subsections (1) and |
| |
| |
(c) | After subsection (4) insert— |
| |
“(5) | In this Act “dataset” means information comprising a collection |
| 35 |
of information held in electronic form where all or most of the |
| |
information in the collection— |
| |
(a) | has been obtained or recorded for the purpose of |
| |
providing a public authority with information in |
| |
connection with the provision of a service by the |
| 40 |
authority or the carrying out of any other function of the |
| |
| |
(b) | is factual information which— |
| |
|
| |
|
| |
|
(i) | is not the product of analysis or interpretation |
| |
other than calculation, and |
| |
(ii) | is not an official statistic (within the meaning |
| |
given by section 6(1) of the Statistics and |
| |
Registration Service Act 2007), and |
| 5 |
(c) | remains presented in a way that (except for the purpose |
| |
of forming part of the collection) has not been organised, |
| |
adapted or otherwise materially altered since it was |
| |
| |
(3) | After section 11 (means by which communication to be made) insert— |
| 10 |
“11A | Release of datasets for re-use |
| |
(1) | This section applies where— |
| |
(a) | a person makes a request for information to a public authority |
| |
in respect of information that is, or forms part of, a dataset held |
| |
| 15 |
(b) | any of the dataset or part of a dataset so requested is a relevant |
| |
| |
(c) | the public authority is the only owner of the relevant copyright |
| |
| |
(d) | the public authority is communicating the relevant copyright |
| 20 |
work to the applicant in accordance with this Act. |
| |
(2) | When communicating the relevant copyright work to the applicant, the |
| |
public authority must make the relevant copyright work available for |
| |
re-use by the applicant in accordance with the terms of the specified |
| |
| 25 |
| |
“copyright owner” has the meaning given by Part 1 of the |
| |
Copyright, Designs and Patents Act 1988 (see section 173 of that |
| |
| |
“copyright work” has the meaning given by Part 1 of the Act of |
| 30 |
1988 (see section 1(2) of that Act); |
| |
“Crown copyright” has the meaning given by Part 1 of the Act of |
| |
1988 (see section 163 of that Act); |
| |
“Crown database right” means a database right which subsists in |
| |
a database of which Her Majesty is the maker (within the |
| 35 |
meaning given by regulation 14 of the Copyright and Rights in |
| |
Databases Regulations 1997 (S.I. 1997/3032); |
| |
“database” has the meaning given by section 3A of the Act of 1988; |
| |
“database right” has the same meaning as in Part 3 of the |
| |
Copyright and Rights in Databases Regulations 1997 (S.I. 1997/ |
| 40 |
| |
“owner”, in relation to a relevant copyright work, means— |
| |
(a) | the copyright owner, or |
| |
(b) | the owner of the database right in a database; |
| |
“Parliamentary copyright” has the meaning given by Part 1 of the |
| 45 |
Act of 1988 (see sections 165 to 167 of that Act); |
| |
“relevant copyright work” means— |
| |
| |
(b) | a work in which Parliamentary copyright subsists, or |
| |
|
| |
|