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Protection of Freedoms Bill


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

68

 

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—

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“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.

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(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

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(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.

70

 

(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.

71

 

(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.

 
 

Protection of Freedoms Bill
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—

 
 

Protection of Freedoms Bill
Part 6 — Freedom of information and data protection

74

 

(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

 
 

 
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Revised 11 February 2011