Management of Offenders and Sentencing Bill [HL]

House of Lords

Session 2004 - 05
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Other Bills before Parliament

Management of Offenders and Sentencing Bill [HL]

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
12

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Reports on the outcome of a death investigation
(1)
The Commissioner must report in writing on the outcome of an investigation
under section 19 to—
(a)
the Secretary of State;
(b)
the controlling authority appearing to the Commissioner to have the
5
most direct responsibility over the matters covered by the investigation
(where that authority is not the Secretary of State);
(c)
a coroner who is holding or who is to hold an inquest into the death;
(d)
the personal representative of the deceased or such relative, friend or
partner of the deceased as the Commissioner thinks fit.
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(2)
The Commissioner may also report to such other persons as he thinks fit.
(3)
The Commissioner may make recommendations to a controlling authority
about any matter arising from the investigation.
(4)
Such recommendations may be made during, as well as after, the investigation.
21
Investigations requested by the Secretary of State
15
(1)
The Secretary of State may request the Commissioner to investigate any matter
mentioned in subsection (2) or (3) which is specified in the request.
(2)
A request may specify any matter relating to events which have (or may have)
occurred—
(a)
at applicable premises;
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(b)
while a person is in the custody of prison custody officers, or under
their control or escort, anywhere in the world;
(c)
in the course of the activities of a local probation board or an officer of
a local probation board in connection with responsibilities assumed by
the board or officer in relation to a person who has been charged with
25
or convicted of an offence;
(d)
in the course of exercising any function mentioned in section 1(1);
(e)
at immigration detention premises which are not excepted premises;
(f)
while a person is in the custody of immigration custody officers, or
under their control or escort, anywhere in the world (other than
30
immigration detention premises).
(3)
A request may also specify any matter the Secretary of State considers is (or
may be) linked to events falling within subsection (2).
(4)
A request under this section which—
(a)
is made by virtue of subsection (2)(e) and specifies a matter relating to
35
events which have (or may have) occurred at immigration detention
premises in Scotland which are not excepted premises, or
(b)
is made by virtue of subsection (3) and specifies a matter which the
Secretary of State considers is (or may be) linked to events which have
(or may have) occurred at immigration detention premises in Scotland
40
which are not excepted premises,

shall not be made unless the Secretary of State considers that those events are
(or may be) linked to a reserved matter within the meaning of the Scotland Act
1998 (c. 46).

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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(5)
The Secretary of State shall consult the Scottish Ministers before making a
request by virtue of subsection (3) which specifies a matter which appears to
him to involve the investigation of events which have (or may have) occurred
in Scotland.
(6)
The Commissioner shall investigate any matter which is the subject of a request
5
under this section.
(7)
The Commissioner shall consult the Lord Advocate before investigating a
matter relating to events which have (or may have) occurred in Scotland.
(8)
The Commissioner shall defer such an investigation if it appears to him that it
would be likely to adversely affect a criminal investigation, or an investigation
10
of a death, which is being or is to be conducted by the Lord Advocate or the
procurator fiscal.
(9)
Subject to any directions given to him by the Secretary of State, it is for the
Commissioner to determine the scope of, and the procedure to be applied to,
an investigation under this section.
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(10)
After conducting an investigation under this section the Commissioner shall
report in writing to the Secretary of State and to such other persons (if any) as
the Secretary of State may direct.
(11)
The reference in subsection (2) to a local probation board includes a reference
to a person acting in pursuance of arrangements of the kind mentioned in
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section 5(2) of the Criminal Justice and Court Services Act 2000 (c. 43).
22
Further provision relating to investigations
(1)
This section applies to investigations under section 19 or 21.
(2)
The Commissioner may show any person a draft of a report (or part of a report)
relating to an investigation.
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(3)
The Commissioner may publish a report relating to an investigation in whole
or part.
(4)
But the Commissioner must not in the case of a report about a death, publish
the name of the deceased without the consent of his personal representative.
(5)
The Commissioner may if he thinks fit reopen an investigation.
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(6)
In the case of an investigation under section 21 the powers conferred by
subsections (2), (3) and (5) must be exercised in accordance with any directions
given by the Secretary of State.
General powers and duties of the Commissioner
23
Powers of Commissioner to obtain information etc
35
(1)
This section confers powers on the Commissioner for the purposes of any
investigation under this Part.
(2)
The Commissioner may require a person he 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—
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Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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(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 he is given access
5
to any premises 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.
(6)
The Commissioner may require any person who is at the premises at those
10
times to provide him with such reasonable assistance as he may specify.
(7)
The Commissioner has no power under this section to require access to
premises used solely as a dwelling.
24
Exceptions to Commissioner’s powers under section 23
(1)
Subject to subsection (3), no person shall be compelled by virtue of this Part to
15
give any evidence or do any other thing which he could not be 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, shall apply
20
in relation to an investigation.
(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)
But no person shall be compelled or authorised by virtue of this Part—
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(a)
to provide any information relating to proceedings of the Cabinet or of
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
30
Minister, and
(b)
certifies that any information or document (or part of a document)
relates to any proceedings mentioned in subsection (4),

is conclusive of the matters certified.
(6)
In this section “investigation” means any investigation under this Part.
35
25
Obstruction and contempt
(1)
If the Commissioner is satisfied that this section applies to a person he may
refer the matter to the High Court.
(2)
This section applies to a person if—
(a)
he has failed to comply with a requirement imposed on him by virtue
40
of section 23 or has otherwise, without lawful excuse, obstructed the
Commissioner in the performance of his functions; or

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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(b)
he has committed an act or omission in relation to an investigation
which, if the investigation were proceedings in the High Court, would
constitute contempt of court.
(3)
The High Court may inquire into the matter and after hearing—
(a)
any witnesses who may be produced against or on behalf of that
5
person, and
(b)
any statement that may be offered in his defence,

it may deal with him as if he were in contempt of court.
26
Working with other ombudsmen etc
(1)
This section applies where the Commissioner—
10
(a)
forms the opinion that a matter he is considering or dealing with relates
(in whole or in part) to a matter that has been or could be dealt with by
a listed person; and
(b)
consults that person about that matter.
(2)
This section also applies where a listed person—
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(a)
forms the opinion that a matter he is considering or dealing with relates
(in whole or in part) to a matter that has been or could be dealt with by
the Commissioner; and
(b)
consults the Commissioner about that matter.
(3)
The Commissioner and the listed person may co-operate with each other in
20
relation to the matter.
(4)
That co-operation may include (among other things)—
(a)
conducting a joint investigation;
(b)
preparing a joint report;
(c)
publishing such a report.
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(5)
But that co-operation may not include any of the things mentioned in
subsection (4) where the listed person is the Scottish Public Services
Ombudsman.
(6)
In this section “listed person” means—
The Parliamentary Commissioner for Administration
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A member of the Commission for Local Administration in England
The Health Service Commissioner for England
The Scottish Public Services Ombudsman
The Children’s Commissioner for Wales
The Public Services Ombudsman for Wales.
35
(7)
The Secretary of State may by order amend the list in subsection (6) by—
(a)
adding or omitting a person or body;
(b)
changing an entry for the time being specified there.
(8)
Such an order may make consequential provision (including provision
modifying an Act or subordinate legislation or an Act of the Scottish
40
Parliament).
(9)
Before the commencement of section 1 of the Public Services Ombudsman
(Wales) Act 2005, the reference in subsection (6) to the Public Services
Ombudsman for Wales shall be taken to refer to a member of the Commission

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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for Local Administration in Wales, the Welsh Administration Ombudsman
and the Health Service Commissioner for Wales.
27
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
5
connection with complaints or investigations under section 19 or 21.
Disclosure of information
28
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 his staff)—
10
(a)
in connection with a complaint or an investigation under section 19 or
21;
(b)
from the Information Commissioner by virtue of section 76 of the
Freedom of Information Act 2000 (c. 36); or
(c)
from a listed person (within the meaning of section 26) for the purposes
15
of—
(i)
any consultation of the kind mentioned in subsection (1) or (2)
of that section; or
(ii)
any co-operation under subsection (3) of that section.
(2)
Such information ceases to be protected information 100 years after it is
20
obtained by the Commissioner (or a member of his staff).
(3)
Protected information shall not be disclosed except—
(a)
for the purposes of the Commissioner’s consideration of a complaint or
of his taking of action in relation to an eligible complaint;
(b)
for the purposes of an investigation, report or recommendation under
25
this Part;
(c)
for the purposes of any consultation of the kind mentioned in
subsection (1) or (2) of section 26 or of any co-operation under
subsection (3) of that section;
(d)
for the purposes of a notification under section 15(7) or 30;
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(e)
for the purposes of proceedings for—
(i)
an offence under the Official Secrets Act 1989 (c. 6) alleged to
have been committed in relation to protected information; or
(ii)
an offence of perjury alleged to have been committed in relation
to anything being done in connection with the Commissioner’s
35
functions;

or for the purposes of an investigation with a view to the taking of such
proceedings;
(f)
for the purposes of proceedings under section 25;
(g)
to a coroner for the purposes of an inquest;
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(h)
to the Lord Advocate or the procurator fiscal for the purposes of an
investigation of his;
(i)
in the case of information to which subsection (4) applies, to the
Information Commissioner; or

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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(j)
in the case of information to which subsection (7) applies, to any person
to whom the Commissioner thinks it should be disclosed in the public
interest.
(4)
This subsection applies to information if it appears to the Commissioner to
relate to—
5
(a)
a matter in respect of which the Information Commissioner could
exercise a power conferred by an enactment mentioned in subsection
(5); or
(b)
the commission of an offence mentioned in subsection (6).
(5)
Those enactments are—
10
(a)
Part 5 of the Data Protection Act 1998 (c. 29);
(b)
section 48 of the Freedom of Information Act 2000 (c. 36);
(c)
Part 4 of that Act.
(6)
Those offences are offences under—
(a)
any provision of the Data Protection Act 1998 other than paragraph 12
15
of Schedule 9;
(b)
section 77 of the Freedom of Information Act 2000.
(7)
This subsection applies to information if—
(a)
in the opinion of the Commissioner it reveals or otherwise relates to a
serious threat to the health or safety of a person; or
20
(b)
it does not fall within paragraph (a) but the Commissioner is
nevertheless of the opinion that it should be disclosed for the purpose
of enabling such a threat to be dealt with.
(8)
Protected information within subsection (1)(c) may not be disclosed for the
purposes of a notification under section 30 unless the Commissioner has
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consulted the listed person in question about the making of the disclosure.
(9)
No person mentioned in subsection (11) may be called upon in any
proceedings to give evidence of protected information within subsection (1)(a)
or (c).
(10)
Subsection (9) does not apply in relation to any proceedings mentioned in
30
subsection (3)(e) to (h).
(11)
Those persons are—
(a)
the Commissioner;
(b)
a member of his staff;
(c)
a person from whom advice is obtained by virtue of paragraph 11 of
35
Schedule 1.
(12)
For the purposes of the law of defamation the publication of any matter by the
Commissioner for purposes connected with his functions shall be absolutely
privileged.
29
Disclosure of information where contrary to public interest
40
(1)
The Secretary of State may give a notice to the Commissioner stating that the
disclosure of—
(a)
any document or information specified in the notice, or
(b)
any description of document or information so specified,

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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would, in the opinion of the Secretary of State, prejudice national security or
would otherwise be contrary to the public interest.
(2)
Nothing in this Part authorises or requires the Commissioner (or any member
of his staff) to disclose to any person or for any purpose any document or
information covered by a current notice under subsection (1).
5
30
Notification of matters of potential concern to the police or other authorities
(1)
If while performing his functions the Commissioner forms the opinion—
(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,
10

he may notify the police or the authority (as the case may be).
(2)
A notification under this section may include such details relating to the matter
in question as the Commissioner thinks fit.
Supplemental
31
Power to pay expenses
15
(1)
The Commissioner may pay such expenses as he thinks fit—
(a)
to a person who has made an eligible complaint; or
(b)
to a person who provides him with information or other assistance in
relation to an eligible complaint or to an investigation under section 19
or 21.
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(2)
The Treasury may issue guidelines in relation to—
(a)
the circumstances under which such payments may be made; and
(b)
the amounts of such payments.
(3)
The Commissioner must comply with any guidelines so issued.
32
Consequential amendments relating to Part 3
25
Schedule 4 (which contains consequential amendments relating to this Part)
has effect.
33
Transitional provisions
(1)
The Prisons and Probation Ombudsman (“the Ombudsman”) shall not
investigate any complaint made, or death occurring, after the commencement
30
of this section.
(2)
The Ombudsman may continue to act under his terms of reference in relation
to—
(a)
any complaint made to him before that commencement (“an existing
complaint”),
35
(b)
any death occurring before that commencement (“an existing death
investigation”), and
(c)
any other matter referred to him by the Secretary of State before that
commencement (“an existing referral investigation”),