Protection of Freedoms Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Protection of Freedoms Bill

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 3 — Disregarding certain convictions for buggery etc.
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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
relevant.
(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
condition.
(4)
The Secretary of State must—
(a)
record the decision in writing, and
15
(b)
give notice of it to the applicant.
Effect of disregard
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
conviction or caution.
(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
section is met.
(3)
Subject to that, the relevant data controller must delete the details as soon as
25
reasonably practicable.
(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
deleted.
(5)
In this section—
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—

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 3 — Disregarding certain convictions for buggery etc.
69

(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
be prescribed,
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
(2)
In particular—
(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
answering the question.
(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
a proper ground for—
45
(a)
dismissing or excluding a person from any office, profession,
occupation or employment, or

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 3 — Disregarding certain convictions for buggery etc.
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(b)
prejudicing the person in any way in any office, profession, occupation
or employment.
(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
any such question.
(2)
For the purposes of section 86, circumstances ancillary to a conviction are any
circumstances of—
(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
such sentence.
(3)
For the purposes of section 86, circumstances ancillary to a caution are any
circumstances of—
(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
caution);
(d)
any proceedings for the offence which take place before the caution is
40
given;
(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;

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 3 — Disregarding certain convictions for buggery etc.
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(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
Act.
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
84(3)(b), and
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.
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90
Advisers
(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
(1)
In this Chapter—
30
“caution” means—
(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
has admitted, or
(b)
a reprimand or warning given under section 65 of the Crime
35
and Disorder Act 1998 (reprimands and warnings for persons
aged under 18),
“conviction” includes—
(a)
a finding that a person is guilty of an offence in respect of
conduct which was the subject of service disciplinary
40
proceedings,

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 3 — Disregarding certain convictions for buggery etc.
72

(b)
a conviction in respect of which an order has been made
discharging the person concerned absolutely or conditionally,
and
(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),
“sentence” includes—
(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
offence), or
(b)
before a Standing Civilian Court established under the Armed
Forces Act 1976.
(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
enactment.
(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.

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Part 6 — Freedom of information and data protection
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(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
offence, and
(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
conduct occurred).
Part 6
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
“(1A)
Where—
(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
(1A)”.
(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
authority,
(b)
is factual information which—

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(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
obtained or recorded.”
(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
by the authority,
15
(b)
any of the dataset or part of a dataset so requested is a relevant
copyright work,
(c)
the public authority is the only owner of the relevant copyright
work, and
(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
licence.
25
(3)
In this section—
“copyright owner” has the meaning given by Part 1 of the
Copyright, Designs and Patents Act 1988 (see section 173 of that
Act);
“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
3032);
“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—
(a)
a copyright work,
(b)
a work in which Parliamentary copyright subsists, or