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
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in subsection (1)(b) for “board of visitors” there is substituted “independent
monitoring board”.
(7)
In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (c. 36) (public
authorities: other public bodies and offices) there is inserted, in the appropriate
place, the following entry—
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“Any Independent Monitoring Board established under section 6(2) of the
Prison Act 1952.”
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Amendment of section 8A of the Prison Act 1952
(1)
Section 8A of the Prison Act 1952 (c. 52) (powers of search by authorised
employees) is amended as follows.
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(2)
In the side note, for “employees” there is substituted “persons”.
(3)
In subsections (1) and (2), for “employee” there is substituted “person”.
(4)
In subsection (3)—
(a)
for “authorised employee” there is substituted “authorised person”;
and
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(b)
for “an employee” there is substituted “a person working at the
prison,”.
Part 3
Her Majesty’s Commissioner for Offender Management and Prisons
The Commissioner
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Appointment etc of Commissioner
(1)
There is to be a Commissioner, to be known as Her Majesty’s Commissioner
for Offender Management and Prisons (in this Part referred to as “the
Commissioner”).
(2)
The main functions of the Commissioner are—
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(a)
dealing with eligible complaints (see sections 14 to 18);
(b)
investigating deaths within his deaths remit (see sections 19, 20 and 22);
(c)
carrying out other investigations at the request of the Secretary of State
(see sections 21 and 22).
(3)
The functions of the Commissioner are performed on behalf of the Crown.
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(4)
Schedule 1 (which makes further provision about the Commissioner) has
effect.
Investigation of complaints
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Eligible complaints
(1)
A complaint is eligible for the purposes of this Part if—
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(a)
it is about a matter within the Commissioner’s complaints remit; and
(b)
it is made to the Commissioner by a person entitled to make it;

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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and it is immaterial for this purpose when the matter in question arose.
(2)
A matter is within the Commissioner’s complaints remit if it is of a description
specified in Schedule 2 and is not an excluded matter.
(3)
The Secretary of State may by order specify matters which are excluded
matters for the purposes of the Commissioner’s complaints remit.
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(4)
An order under subsection (3) may make—
(a)
different provision for different purposes; and
(b)
consequential provision (including provision modifying any Act or
subordinate legislation).
(5)
It is for the Commissioner to determine procedures for the making of
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complaints to him (but they must not preclude the making of oral complaints).
(6)
A person is entitled to make a complaint if—
(a)
he is the relevant person in relation to the complaint; or
(b)
where the relevant person is dead or unable to act for himself, it
appears to the Commissioner to be appropriate for him to make the
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complaint.
(7)
In this Part “the relevant person”, in relation to a complaint about a matter
within the complaints remit, is the person mentioned in the relevant paragraph
of Schedule 2 as having been affected by that matter.
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Treatment by Commissioner of complaints
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(1)
This section applies where a complaint is made to the Commissioner.
(2)
The Commissioner shall consider whether the complaint is eligible and, if it is,
take such action as he considers appropriate for the purpose of dealing with it.
(3)
The action which may be taken by the Commissioner under subsection (2) is
either or both of the following—
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(a)
investigating the complaint to any extent; 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.
(4)
But the Commissioner shall not take any such action if or to the extent that the
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complaint is excluded from such action by section 16.
(5)
The Commissioner may decline to take, or defer or stop taking, any such action
in relation to the whole or any part of the complaint.
(6)
The Commissioner may reopen an eligible complaint which he has previously
considered (whether or not he took any such action in relation to it).
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(7)
If the Commissioner—
(a)
rejects a complaint as being ineligible,
(b)
determines that a complaint is to any extent excluded by section 16, or
(c)
does anything else mentioned in subsection (5) or (6),

he shall notify the person mentioned in subsection (8) and may notify such
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other persons as he thinks fit.
(8)
The person who must be notified is—

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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(a)
the complainant; or
(b)
if the complainant has died or is unable to act for himself, the person
who appears to the Commissioner to be the most appropriate person to
receive the notification.
(9)
Notification under subsection (7) may be given orally.
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(10)
It is for the Commissioner to determine the procedures applicable to any action
to be taken in relation to a complaint.
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Complaints excluded from investigation etc
(1)
The Commissioner must not take any action in relation to an eligible complaint
if he is satisfied that any of the requirements in subsection (2) has not been met.
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(2)
Those requirements are—
(a)
that a period of no more than one year has passed since the relevant
person first became aware of the matters giving rise to the substance of
the complaint;
(b)
that the substance of the complaint has been communicated to the
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responsible authority and it has had a reasonable opportunity to deal
with it; and
(c)
where the responsible authority has responded to the substance of the
complaint following such a communication (whether by rejecting it or
by addressing it in some other way), that a period of no more than three
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months has passed since it did so.
(3)
But if the Commissioner is satisfied that there is good reason why—
(a)
any of those requirements should be waived, or
(b)
a period mentioned in subsection (2) should be extended,

he may waive that requirement or extend that period.
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(4)
The Commissioner must not take any action in relation to an eligible complaint
so far as it relates to a matter which has been determined—
(a)
at a trial or otherwise by a court;
(b)
by a tribunal specified in Schedule 1 to the Tribunals and Inquiries Act
1992 (c. 53); or
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(c)
by the Parole Board.
(5)
Subsection (4) does not prevent the Commissioner from taking action in
relation to a complaint about the conduct of a person in connection with the
provision of a report for a court or tribunal or for the Parole Board.
(6)
In this section—
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“action” means action falling within section 15(3);
“the responsible authority”, in relation to a complaint, means the
controlling authority thought by the Commissioner to have the most
direct responsibility for the matters covered by the complaint.
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Report on the outcome of an investigation
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(1)
Once the Commissioner has investigated a complaint, he—
(a)
shall make a report on the outcome of the investigation to the
complainant; and
(b)
may make a report on that outcome to any other person.

Management of Offenders and Sentencing Bill [HL]
Part 3 — Her Majesty’s Commissioner for Offender Management and Prisons
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(2)
The Commissioner may—
(a)
make a report orally;
(b)
make different reports to different persons;
(c)
show any person a draft of (or of part of) a report;
(d)
publish the whole or any part of a report.
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(3)
But the Commissioner must not—
(a)
publish the complainant’s name without his consent; and
(b)
if the complainant is not the relevant person in relation to the
complaint, publish the relevant person’s name without the consent of
the complainant.
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(4)
If the complainant has died or is unable to act for himself, the report under
subsection (1)(a) must be made to the person who appears to the
Commissioner to be the most appropriate person to receive the report.
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Recommendations by Commissioner
(1)
The Commissioner may make recommendations to a controlling authority
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about any matter arising from a complaint which is or has been the subject of
investigation by him.
(2)
The authority must, within the period of 28 days commencing with the day on
which it receives the recommendations, respond in writing to the
Commissioner setting out (with reasons) what it proposes to do about them.
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(3)
The Commissioner may report on that response to such persons as he thinks fit.
(4)
Section 17(2) and (3) apply in relation to reports under subsection (3) as they
apply to reports on the outcome of an investigation.
Other investigations
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Investigation of deaths
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(1)
The Commissioner shall investigate any death falling within his deaths remit.
(2)
A death falls within the Commissioner’s deaths remit if it is of a description
specified in Schedule 3.
(3)
In carrying out an investigation of a death, the Commissioner must aim—
(a)
to establish the circumstances surrounding the death; and
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(b)
if he considers it would be helpful to do so, to identify steps that should
be taken for the purpose of eliminating or reducing 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.
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(5)
The Commissioner may defer the investigation if requested to do so by a
person conducting a criminal investigation which relates to the death in
question.