After section 116 of the Police Act 1997 (enhanced criminal record certificates: judicial appointments and Crown employment) insert—
Up-dating certificates
116A (1) The Secretary of State must, on the request of a relevant person and subject to subsection (2), give up-date information to that person about—
(a) a criminal conviction certificate,
(b) a criminal record certificate, or
(c) an enhanced criminal record certificate,
which is subject to up-date arrangements.
(2) The Secretary of State may impose conditions about—
(a) the information to be supplied in connection with such a request for the purpose of enabling the Secretary of State to decide whether the person is a relevant person,
(b) any other information to be supplied in connection with such a request.
(3) For the purposes of subsection (1) a certificate is subject to up-date arrangements if condition A, B or C is met and the arrangements have not ceased to have effect in accordance with a notice given under section 118(3B).
(4) Condition A is that—
(a) the individual who applied for the certificate made an application at the same time to the Secretary of State for the certificate to be subject to up-date arrangements,
(b) the individual has paid in the prescribed manner any prescribed fee,
(c) the Secretary of State has granted the application for the certificate to be subject to up-date arrangements, and
(d) the period of 12 months beginning with the date on which the grant comes into force has not expired.
(5) Condition B is that—
(a) the individual whose certificate it is has made an application to the Secretary of State to renew or (as the case may be) further renew unexpired up-date arrangements in relation to the certificate,
(b) the individual has paid in the prescribed manner any prescribed fee,
(c) the Secretary of State has granted the application,
(d) the grant has come into force on the expiry of the previous up-date arrangements, and
(e) the period of 12 months beginning with the date on which the grant has come into force has not expired.
(6) Condition C is that—
(a) the certificate was issued under section 117(2) or 117A(5)(b), and
(b) the certificate which it superseded—
(i) was subject to up-date arrangements immediately before it was superseded, and
(ii) would still be subject to those arrangements had it not been superseded.
(7) The Secretary of State must not grant an application as mentioned in subsection (4)(c) or (5)(c) unless any fee prescribed under subsection (4)(b) or (as the case may be) (5)(b) has been paid in the manner so prescribed.
(8) In this section “up-date information” means—
(a) in relation to a criminal conviction certificate or a criminal record certificate—
(i) information that there is no information recorded in central records which would be included in a new certificate but is not included in the current certificate, or
(ii) advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate,
(b) in relation to an enhanced criminal record certificate which includes suitability information relating to children or vulnerable adults—
(i) information that there is no information recorded in central records, no information of the kind mentioned in section 113B(4), and no information of the kind mentioned in section 113BA(2) or (as the case may be) 113BB(2), which would be included in a new certificate but is not included in the current certificate, or
(ii) advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and
(c) in relation to any other enhanced criminal record certificate—
(i) information that there is no information recorded in central records, nor any information of the kind mentioned in section 113B(4), which would be included in a new certificate but is not included in the current certificate, or
(ii) advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate.
(9) If up-date information is given under subsection (8)(a)(i), (8)(b)(i) or (8)(c)(i) and the certificate to which that information relates is one to which subsection (10) applies, the up-date information must include that fact.
(10) This subsection applies to a certificate which—
(a) in the case of a criminal conviction certificate, states that there are no convictions or conditional cautions of the applicant recorded in central records,
(b) in the case of a criminal record certificate, is as described in section 120AC(3), and
(c) in the case of an enhanced criminal record certificate, is as described in section 120AC(4).
(11) In this section—
“central records” has the same meaning as in section 113A,
“criminal record certificate” includes a certificate under section 114,
“enhanced criminal record certificate” includes a certificate under section 116,
“exempted question” has the same meaning as in section 113A,
“relevant person” means—
in relation to a criminal conviction certificate—
the individual whose certificate it is, or
any person authorised by the individual,
in relation to a criminal record certificate—
the individual whose certificate it is, or
any person who is authorised by the individual and is seeking the information for the purposes of an exempted question, and
in relation to an enhanced criminal record certificate—
the individual whose certificate it is, or
any person who is authorised by the individual and is seeking the information for the purposes of an exempted question asked for a purpose prescribed under section 113B(2)(b).
In section 112(2) of the Police Act 1997 (contents of a criminal conviction certificate)—
(a) in paragraph (a) after “conviction” insert “ or conditional caution ”, and
(b) in paragraph (b) for “is no such conviction” substitute “ are no such convictions and conditional cautions ”.
85 Inclusion of cautions etc. in national police records
After subsection (4) of section 27 of the Police and Criminal Evidence Act 1984 (recordable offences) insert—
(4A) In subsection (4) “conviction” includes—
(a) a caution within the meaning of Part 5 of the Police Act 1997; and
(b) a reprimand or warning given under section 65 of the Crime and Disorder Act 1998.
86 Out of date references to certificates of criminal records
In section 75(4) of the Data Protection Act 1998 (commencement of section 56 of that Act not to be earlier than the first day on which certain sections of the Police Act 1997 relating to certificates of criminal records are all in force) for “sections 112, 113 and 115” substitute “ sections 112, 113A and 113B ”.
(1) There is to be a body corporate known as the Disclosure and Barring Service.
(2) In this Chapter “DBS” means the Disclosure and Barring Service.
(3) Schedule 8 (which makes further provision about DBS) has effect.
88 Transfer of functions to DBS and dissolution of ISA
(1) The Secretary of State may by order transfer any function of ISA to DBS.
(2) The Secretary of State may by order transfer to DBS any function of the Secretary of State under, or in connection with—
(a) Part 5 of the Police Act 1997 (criminal records),
(b) the Safeguarding Vulnerable Groups Act 2006, or
(c) the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (S.I. 2007/1351 (N.I. 11)).
(3) The Secretary of State may by order provide for the dissolution of ISA.
(4) In this section—
“function” does not include any power of the Secretary of State to make an order or regulations,
“ISA” means the Independent Safeguarding Authority.
(1) Any power to make an order under section 88—
(a) is exercisable by statutory instrument,
(b) includes power to make consequential, supplementary, incidental, transitional, transitory or saving provision,
(c) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made and including this Act).
(2) Subject to subsection (3), a statutory instrument containing an order under section 88 is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(3) A statutory instrument containing an order under section 88 which neither amends nor repeals any provision of primary legislation is subject to annulment in pursuance of a resolution of either House of Parliament.
(4) If a draft of an instrument containing an order under section 88 (alone or with other provision) would, apart from this subsection, be treated as a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.
(5) In this section—
“enactment” includes a Measure or Act of the National Assembly for Wales and Northern Ireland legislation,
“primary legislation” means—
a public general Act,
a Measure or Act of the National Assembly for Wales, and
Northern Ireland legislation.
90 Transfer schemes in connection with orders under section 88
(1) The Secretary of State may, in connection with an order under section 88, make a scheme for the transfer to DBS of property, rights or liabilities of ISA or the Secretary of State.
(2) The things that may be transferred under a transfer scheme include—
(a) property, rights and liabilities which could not otherwise be transferred,
(b) property acquired, and rights and liabilities arising, after the making of the scheme.
(3) A transfer scheme may make consequential, supplementary, incidental, transitional, transitory or saving provision and may, in particular—
(a) create rights, or impose liabilities, in relation to property or rights transferred,
(b) make provision about the continuing effect of things done by, on behalf of or in relation to the transferor in respect of anything transferred,
(c) make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred,
(d) make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee,
(e) make provision for the shared ownership or use of property,
(f) if the TUPE regulations do not apply in relation to the transfer, make provision which is the same or similar.
(4) A transfer scheme may provide—
(a) for modification by agreement,
(b) for modifications to have effect from the date when the original scheme came into effect.
(5) A transfer scheme may confer a discretion on the Secretary of State to pay compensation to any person whose interests are adversely affected by the scheme.
(6) A transfer scheme may be included in an order under section 88 but, if not so included, must be laid before Parliament after being made.
(7) For the purposes of this section—
(a) references to rights and liabilities of ISA include references to rights and liabilities of ISA relating to a contract of employment, and
(b) references to rights and liabilities of the Secretary of State include references to rights and liabilities of the Crown relating to the terms of employment of individuals in the civil service.
(8) Accordingly, a transfer scheme may, in particular, provide—
(a) for an employee of ISA or (as the case may be) an individual employed in the civil service to become an employee of DBS,
(b) for the individual's contract of employment with ISA or (as the case may be) terms of employment in the civil service to have effect (subject to any necessary modifications) as the terms of the individual's contract of employment with DBS,
(c) for the transfer to DBS of rights and liabilities of ISA or (as the case may be) the Crown under or in connection with the individual's terms of employment.
(9) In this section—
“civil service” means the civil service of the State,
“ISA” means the Independent Safeguarding Authority,
“TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246),
references to the transfer of property include the grant of a lease.
(1) The Treasury may by order make provision varying the way in which a relevant tax has effect in relation to—
(a) anything transferred under a transfer scheme, or
(b) anything done for the purposes of, or in relation to, a transfer under a transfer scheme.
(2) The provision which may be made under subsection (1)(a) includes, in particular, provision for—
(a) a tax provision not to apply, or to apply with modifications, in relation to anything transferred,
(b) anything transferred to be treated in a specified way for the purposes of a tax provision,
(c) the Secretary of State to be required or permitted to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything transferred.
(3) The provision which may be made under subsection (1)(b) includes, in particular, provision for—
(a) a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of, or in relation to, the transfer,
(b) anything done for the purposes of, or in relation to, the transfer to have or not have a specified consequence or be treated in a specified way,
(c) the Secretary of State to be required or permitted to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything done for the purposes of, or in relation to, the transfer.
(4) The power to make an order under this section—
(a) is exercisable by statutory instrument,
(b) includes power to make consequential, supplementary, incidental, transitional, transitory or saving provision,
(c) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made).
(5) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of the House of Commons.
(6) In this section—
“enactment” includes an Act of the Scottish Parliament, a Measure or Act of the National Assembly for Wales and Northern Ireland legislation,
“relevant tax” means income tax, corporation tax, capital gains tax, stamp duty, stamp duty reserve tax or stamp duty land tax,
“tax provision” means any provision—
about a relevant tax, and
made by or under an enactment,
“transfer scheme” means a transfer scheme under section 88,
and references to the transfer of property include the grant of a lease.
92 Power of Secretary of State to disregard convictions or cautions
(1) A person who has been convicted of, or cautioned for, an offence in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex may apply to the Secretary of State for the conviction or caution to become a disregarded conviction or caution.
(2) A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.
(3) Condition A is that the Secretary of State decides that it appears that—
(a) any other person involved in the sexual activity was aged 16 or over, ...
(b) the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it has been re-enacted or replaced), and
(c) the sexual activity would not, if occurring in the same circumstances at the point of decision, constitute an offence.
(4) Condition B is that—
(a) the Secretary of State has given notice of the decision to the applicant under section 94(4)(b), and
(b) the period of 14 days beginning with the day on which the notice was given has ended.
(5) Sections 95 to 98 explain the effect of a conviction or caution becoming a disregarded conviction or caution.
(6) Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.
(7) In this section “sexual activity” includes—
(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and
(b) conduct intended to lead to sexual activity.
(1) An application under section 92 must be in writing.
(2) It must state—
(a) the name, address and date of birth of the applicant,
(b) the name and address of the applicant at the time of the conviction or caution,
(c) so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and
(d) such other information as the Secretary of State may require.
(3) It may include representations by the applicant or written evidence about —
(a) whether a conviction or caution is of a kind mentioned in section 92(1);
(b) the matters mentioned in condition A in that section.
94 Procedure for decisions by the Secretary of State
(1) In considering whether a conviction or caution is of a kind mentioned in section 92(1) or whether to make a decision of the kind mentioned in condition A in that section, 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 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 a conviction or caution is of a kind mentioned in section 92(1) or whether to make a decision of the kind mentioned in condition A in that section.
(2A) If the Secretary of State refuses an application on the basis that the caution or conviction is not of a kind mentioned in section 92(1), the Secretary of State must—
(a) record the decision in writing, and
(b) give notice of it to the applicant.
(3) Subsection (4) applies if the Secretary of State—
(a) decides that it appears as mentioned in condition A in section 92, 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
(b) give notice of it to the applicant.
95 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 conviction or caution.
(2) A notice under subsection (1) may be given at any time after condition A in section 92 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 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—
“delete”, in relation to such relevant official records as may be prescribed, means record with the details of the conviction or caution concerned—
the fact that it is a disregarded conviction or caution, and
the effect of it being such a conviction or caution,
“the names database” means the names database held by the Secretary of State 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,
“prescribed” means prescribed by order of the Secretary of State,
“relevant data controller” means—
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,
in relation to other relevant official records, such person as may be prescribed,
“relevant official records” means—
the names database, and
such other official records as may be prescribed.
(6) An order under this section—
(a) may make different provision for different purposes,
(b) is to be made by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.
96 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—
(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.
(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
(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 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
(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 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—
(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 or employment.
(6) This section is subject to section 97 but otherwise applies despite any enactment or rule of law to the contrary.
(7) See also section 98 (meaning of “proceedings before a judicial authority” and “circumstances ancillary to a conviction or caution”).
Nothing in section 96 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.
(1) In section 96 “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,
(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 liabilities of any person, or to receive evidence affecting the determination of any such question.
(2) For the purposes of section 96, circumstances ancillary to a conviction are any circumstances of—
(a) the offence which was the subject of the conviction;
(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;
(f) anything done in pursuance of, or undergone in compliance with, any such sentence.
(3) For the purposes of section 96, circumstances ancillary to a caution are any circumstances of—
(a) the offence which was the subject of the caution;
(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 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;
(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.
99 Appeal against refusal to disregard convictions or cautions
(1) The applicant may appeal to the High Court if—
(a) the Secretary of State refuses an application on the basis mentioned in section 94(2A) or makes a decision of the kind mentioned in section 94(3)(b), and
(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 —
(a) that the conviction or caution is of a kind mentioned in section 92(1), it must make an order to that effect;
(b) that it appears as mentioned in condition A of that section, it must make an order to that effect.
(4) Otherwise it must dismiss the appeal.
(5) A conviction or caution to which an order under subsection (3) (b) 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.
(1) The Secretary of State may appoint persons to advise whether, in any case referred to them by the Secretary of State—
(a) the caution or conviction is of a kind mentioned in section 92(1), or
(b) the Secretary of State should decide as mentioned in condition A in that section.
(2) The Secretary of State may disclose to a person so appointed such information (including anything within section 94(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.
(1) In this Chapter—
“caution” means—
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
a reprimand or warning given under section 65 of the Crime and Disorder Act 1998 (reprimands and warnings for persons aged under 18),
“conviction” includes—
a finding that a person is guilty of an offence in respect of conduct which was the subject of service disciplinary proceedings (including anything that under section 376(1) and (2) of the Armed Forces Act 2006 is to be treated as a conviction for the purposes of that Act),
a conviction in respect of which an order has been made discharging the person concerned absolutely or conditionally, and
a finding in any criminal proceedings (including a finding linked with a finding of insanity) that a person has committed 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,
“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,
“enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),
“information” includes documents,
“notice” means notice in writing,
“official records” has the meaning given by section 95(5),
“sentence” includes—
any punishment awarded, and
any order made by virtue of Schedule 5A to the Army Act 1955, 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, (including anything that under section 376(1) and (3) of the Armed Forces Act 2006 is to be treated as a sentence for the purposes of that Act),
“service disciplinary proceedings” means any proceedings (whether in England and Wales or elsewhere)—
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 enactment concerned to award a punishment in respect of an offence), ...
before a Standing Civilian Court established under the Armed Forces Act 1976 , or
in respect of a service offence (whether or not before a court but excepting proceedings before a civilian court within the meaning of the Armed Forces Act 2006);
and for the purposes of paragraph (c) “service offence” means a service offence within the meaning of the Armed Forces Act 2006, or an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (SI 2009/1059).
(2) Paragraph (b) of the definition of “conviction” applies despite the following (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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In this Chapter a reference to an offence includes a reference to an inchoate or ancillary offence relating to the offence.
(6) In the case of an attempt, conspiracy , incitement, encouraging or assisting, the references in this Chapter to the conduct constituting the offence are references to the conduct to which the attempt, conspiracy , incitement, encouraging or assisting related (whether or not that conduct occurred).
(6A) For the purposes of section 92, an inchoate or ancillary offence is to be treated as repealed or abolished to the extent that the offence to which it relates is repealed or abolished.
(6B) A reference to an inchoate or ancillary offence in relation to an offence is a reference to an offence of—
(a) attempting, conspiracy or incitement to commit the offence,
(b) encouraging or assisting the commission of the offence, or
(c) aiding, abetting, counselling or procuring the commission of the offence.
(6C) For the purposes of section 92, an offence under an enactment mentioned in subsection (6D) is to be treated as repealed to the extent that the conduct constituting the offence under the enactment—
(a) was punishable by reference to an offence under the law of England and Wales which has been repealed or abolished, or
(b) if the conduct was not punishable by the law of England and Wales, was punishable by reference to equivalent conduct constituting an offence under the law of England and Wales which has been repealed or abolished.
(6D) The enactments are—
(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,
(e) section 70 of the Air Force Act 1955,
(f) section 42 of the Naval Discipline Act 1957, and
(g) section 42 of the Armed Forces Act 2006.
(7) For the purposes of subsections (5), (6) and (6B) an attempt to commit an offence includes conduct which—
(a) consisted of frequenting with intent to commit the offence any river, canal, street, highway, place of public resort or other location mentioned in section 4 of the Vagrancy Act 1824 (as it then had effect) in connection with frequenting by suspected persons or reputed thiefs, and
(b) was itself an offence under that section.
101A Power of Department of Justice to disregard certain convictions or cautions
(1) A person who has in Northern Ireland been convicted of, or cautioned for, an offence under—
(a) Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery),
(b) Article 7 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (procuring others to commit homosexual acts),
(c) section 61 of the Offences against the Person Act 1861 (buggery), or
(d) section 11 of the Criminal Law Amendment Act 1885 (indecent acts between men),
may apply to the Department of Justice in Northern Ireland for the conviction or caution to become a disregarded conviction or caution.
(2) A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.
(3) In relation to an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982, Condition A is that the Department of Justice in Northern Ireland decides that it appears that—
(a) the conduct procured was conduct involving persons who consented to it and were aged 17 or over (whether or not that conduct occurred), and
(b) the conduct procured would not now be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (sexual activity in a public lavatory).
(4) In relation to any other offence mentioned in subsection (1), Condition A is that the Department of Justice in Northern Ireland decides that it appears that—
(a) the other person involved in the conduct constituting the offence consented to it and was aged 17 or over, and
(b) any such conduct now would not be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)).
(5) Condition B is that—
(a) the Department of Justice in Northern Ireland has given notice of the decision to the applicant under section 101C(4)(b), and
(b) the period of 14 days beginning with the day on which the notice was given has ended.
(6) Sections 101D to 101G explain the effect of a conviction or caution becoming a disregarded conviction or caution.
(1) An application under section 101A must be in writing.
(2) It must state—
(a) the name, address and date of birth of the applicant,
(b) the name and address of the applicant at the time of the conviction or caution,
(c) so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and
(d) such other information as the Department of Justice in Northern Ireland may require.
(3) It may include representations by the applicant or written evidence about the matters mentioned in condition A in section 101A.
101C Procedure for decisions by the Department of Justice
(1) In considering whether to make a decision of the kind mentioned in condition A in section 101A, the Department of Justice in Northern Ireland 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 proceedings relating to it that the Department of Justice in Northern Ireland considers to be relevant.
(2) The Department of Justice in Northern Ireland 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 101A.
(3) Subsection (4) applies if the Department of Justice in Northern Ireland—
(a) decides that it appears as mentioned in condition A in section 101A, or
(b) makes a different decision in relation to the matters mentioned in that condition.
(4) The Department of Justice in Northern Ireland must—
(a) record the decision in writing, and
(b) give notice of it to the applicant.
101D Effect of disregard on police and other records
(1) The Department of Justice in Northern Ireland must by notice direct the relevant data controller to delete details, contained in relevant official records, of a disregarded conviction or caution.
(2) A notice under subsection (1) may be given at any time after condition A in section 101A 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 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—
“delete”, in relation to such relevant official records as may be prescribed, means record with the details of the conviction or caution concerned—
the fact that it is a disregarded conviction or caution, and
the effect of it being such a conviction or caution,
“the general names database” means the names database held by the Secretary of State for the use of constables,
“the Northern Ireland names database” means the names database maintained by the Department of Justice in Northern Ireland for the purpose of recording convictions and cautions,
“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 Northern Ireland for the purposes of its functions,
“prescribed” means prescribed by order of the Department of Justice in Northern Ireland,
“relevant data controller” means—
in relation to the general names database or the Northern Ireland names database, the Chief Constable of the Police Service of Northern Ireland,
in relation to other relevant official records, such persons as may be prescribed,
“relevant official records” means—
the general names database,
the Northern Ireland names database, and
such other official records as may be prescribed.
(6) An order under this section may make different provision for different purposes.
(7) Any power to make an order under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
(8) A statutory rule containing an order under this section is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I))).
101E 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—
(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.
(2) In particular—
(a) no evidence is to be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Northern Ireland to prove that the person has done, or undergone, anything within subsection (1)(a) to (e), and
(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 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
(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 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—
(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 or employment.
(6) This section is subject to section 101F but otherwise applies despite any enactment or rule of law to the contrary.
(7) See also section 101G (meaning of “proceedings before a judicial authority” and “circumstances ancillary to a conviction or caution”).
Nothing in section 101E 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.
(1) In section 101E, “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,
(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 liabilities of any person, or to receive evidence affecting the determination of any such question.
(2) For the purposes of section 101E, circumstances ancillary to a conviction are any circumstances of—
(a) the offence which was the subject of the conviction;
(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 appeal or otherwise) for reviewing the conviction or any such sentence;
(f) anything done in pursuance of, or undergone in compliance with, any such sentence.
(3) For the purposes of section 101E, circumstances ancillary to a caution are any circumstances of—
(a) the offence which was the subject of the caution;
(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 given;
(e) anything which happens after the caution is given for the purposes of bringing any such proceedings to an end;
(f) any judicial review proceedings relating to the caution.
101H Appeal against refusal to disregard convictions or caution
(1) The applicant may appeal to the High Court in Northern Ireland if—
(a) the Department of Justice in Northern Ireland makes a decision of the kind mentioned in section 101C(3)(b), and
(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 Department of Justice in Northern Ireland.
(3) If the High Court decides that it appears as mentioned in condition A in section 101A, it must make an order to that effect.
(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.
(1) The Department of Justice in Northern Ireland may appoint persons to advise whether, in any case referred to them by the Department of Justice in Northern Ireland, the Department of Justice in Northern Ireland should decide as mentioned in condition A in section 101A.
(2) The Department of Justice in Northern Ireland may disclose to a person so appointed such information (including anything within section 101C(1)(a) or (b)) as the Department of Justice considers relevant to the provision of such advice.
(3) The Department of Justice in Northern Ireland may pay expenses and allowances to a person so appointed.
(1) In this Chapter—
“caution” means a caution or a warning given to a person in Northern Ireland in respect of an offence which, at the time the caution or warning is given, that person has admitted,
“conviction” includes—
a conviction in respect of which an order has been made discharging the person concerned absolutely or conditionally, and
a finding in any criminal proceedings (including a finding linked with a finding of insanity) that a person has committed 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,
“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,
“notice” means notice in writing,
“official records” has the meaning given by section 101D(5).
(2) Paragraph (a) of the definition of “conviction” applies despite Article 6 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (which deems a conviction of a person discharged not to be a conviction).
(3) In this Chapter, a reference to an offence includes—
(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.
(4) In the case of an attempt, conspiracy or incitement, the references in this 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).
(5) For the purposes of subsections (3) and (4) an attempt to commit an offence includes conduct which—
(a) consisted of frequenting with intent to commit the offence any river, canal, street, highway, place of public resort or other location mentioned in section 4 of the Vagrancy Act 1824 (as it then had effect) in connection with frequenting by suspected persons or reputed thiefs, and
(b) was itself an offence under that section.
102 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—
(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 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 which is capable of re-use.
,
(b) in subsection (4), for “subsection (1)” substitute “ subsections (1) and (1A) ”, and
(c) after subsection (4) insert—
(5) In this Act “dataset” means information comprising a collection 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 authority or the carrying out of any other function of the authority,
(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
(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—
Release of datasets for re-use
11A (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,
(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 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.
(3) The public authority may exercise any power that it has by virtue of regulations under section 11B to charge a fee in connection with making the relevant copyright work available for re-use in accordance with subsection (2).
(4) Nothing in this section or section 11B prevents a public authority which is subject to a duty under subsection (2) from exercising any power that it has by or under an enactment other than this Act to charge a fee in connection with making the relevant copyright work available for re-use.
(5) Where a public authority intends to charge a fee (whether in accordance with regulations under section 11B or as mentioned in subsection (4)) in connection with making a relevant copyright work available for re-use by an applicant, the authority must give the applicant a notice in writing (in this section referred to as a “re-use fee notice”) stating that a fee of an amount specified in, or determined in accordance with, the notice is to be charged by the authority in connection with complying with subsection (2).
(6) Where a re-use fee notice has been given to the applicant, the public authority is not obliged to comply with subsection (2) while any part of the fee which is required to be paid is unpaid.
(7) Where a public authority intends to charge a fee as mentioned in subsection (4), the re-use fee notice may be combined with any other notice which is to be given under the power which enables the fee to be charged.
(8) 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 1988 (see section 1(2) of that Act);
“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. 1997/3032);
“owner”, in relation to a relevant copyright work, means—
the copyright owner, or
the owner of the database right in the database;
“relevant copyright work” means—
a copyright work, or
a database subject to a database right,
but excludes a relevant Crown work or a relevant Parliamentary work;
“relevant Crown work” means—
a copyright work in relation to which the Crown is the copyright owner, or
a database in relation to which the Crown is the owner of the database right;
“relevant Parliamentary work” means—
a copyright work in relation to which the House of Commons or the House of Lords is the copyright owner, or
a database in relation to which the House of Commons or the House of Lords is the owner of the database right;
“the specified licence” is the licence specified by the Secretary of State in a code of practice issued under section 45, and the Secretary of State may specify different licences for different purposes.
Power to charge fees in relation to release of datasets for re-use
11B (1) The Secretary of State may, with the consent of the Treasury, make provision by regulations about the charging of fees by public authorities in connection with making relevant copyright works available for re-use under section 11A(2) or by virtue of section 19(2A)(c).
(2) Regulations under this section may, in particular—
(a) prescribe cases in which fees may, or may not, be charged,
(b) prescribe the amount of any fee payable or provide for any such amount to be determined in such manner as may be prescribed,
(c) prescribe, or otherwise provide for, times at which fees, or parts of fees, are payable,
(d) require the provision of information about the manner in which amounts of fees are determined,
(e) make different provision for different purposes.
(3) Regulations under this section may, in prescribing the amount of any fee payable or providing for any such amount to be determined in such manner as may be prescribed, provide for a reasonable return on investment.
(4) In this section “relevant copyright work” has the meaning given by section 11A(8).
(4) In section 19 (publication schemes)—
(a) after subsection (2) insert—
(2A) A publication scheme must, in particular, include a requirement for the public authority concerned—
(a) to publish—
(i) any dataset held by the authority in relation to which a person makes a request for information to the authority, and
(ii) any up-dated version held by the authority of such a dataset,
unless the authority is satisfied that it is not appropriate for the dataset to be published,
(b) where reasonably practicable, to publish any dataset the authority publishes by virtue of paragraph (a) in an electronic form which is capable of re-use,
(c) where any information in a dataset published by virtue of paragraph (a) is a relevant copyright work in relation to which the authority is the only owner, to make the information available for re-use in accordance with the terms of the specified licence.
(2B) The public authority may exercise any power that it has by virtue of regulations under section 11B to charge a fee in connection with making the relevant copyright work available for re-use in accordance with a requirement imposed by virtue of subsection (2A)(c).
(2C) Nothing in this section or section 11B prevents a public authority which is subject to such a requirement from exercising any power that it has by or under an enactment other than this Act to charge a fee in connection with making the relevant copyright work available for re-use.
(2D) Where a public authority intends to charge a fee (whether in accordance with regulations under section 11B or as mentioned in subsection (2C)) in connection with making a relevant copyright work available for re-use by an applicant, the authority must give the applicant a notice in writing (in this section referred to as a “re-use fee notice”) stating that a fee of an amount specified in, or determined in accordance with, the notice is to be charged by the authority in connection with complying with the requirement imposed by virtue of subsection (2A)(c).
(2E) Where a re-use fee notice has been given to the applicant, the public authority is not obliged to comply with the requirement imposed by virtue of subsection (2A)(c) while any part of the fee which is required to be paid is unpaid.
(2F) Where a public authority intends to charge a fee as mentioned in subsection (2C), the re-use fee notice may be combined with any other notice which is to be given under the power which enables the fee to be charged.
, and
(b) after subsection (7) insert—
(8) 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 1988 (see section 1(2) of that Act);
“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. 1997/3032);
“owner”, in relation to a relevant copyright work, means—
the copyright owner, or
the owner of the database right in the database;
“relevant copyright work” means—
a copyright work, or
a database subject to a database right,
but excludes a relevant Crown work or a relevant Parliamentary work;
“relevant Crown work” means—
a copyright work in relation to which the Crown is the copyright owner, or
a database in relation to which the Crown is the owner of the database right;
“relevant Parliamentary work” means—
a copyright work in relation to which the House of Commons or the House of Lords is the copyright owner, or
a database in relation to which the House of Commons or the House of Lords is the owner of the database right;
“the specified licence” has the meaning given by section 11A(8).
(5) In section 45 (issue of code of practice)—
(a) in subsection (2), after paragraph (d) (and before the word “and” at the end of the paragraph), insert—
(da) the disclosure by public authorities of datasets held by them,
,
(b) after subsection (2) insert—
(2A) Provision of the kind mentioned in subsection (2)(da) may, in particular, include provision relating to—
(a) the giving of permission for datasets to be re-used,
(b) the disclosure of datasets in an electronic form which is capable of re-use,
(c) the making of datasets available for re-use in accordance with the terms of a licence,
(d) other matters relating to the making of datasets available for re-use,
(e) standards applicable to public authorities in connection with the disclosure of datasets.
, and
(c) in subsection (3) for “The code” substitute “ Any code under this section ”.
(6) In section 84 (interpretation), after the definition of “the Commissioner”, insert—
“dataset” has the meaning given by section 11(5);
.
(1) Section 6 of the Freedom of Information Act 2000 (publicly-owned companies) is amended as follows.
(2) In subsection (1)—
(a) omit “or” at the end of paragraph (a),
(b) in paragraph (b) for the words from “any public authority” to “particular information” substitute “ the wider public sector ”, and
(c) after paragraph (b) insert
, or
(c) it is wholly owned by the Crown and the wider public sector.
(3) For subsection (2) substitute—
(2) For the purposes of this section—
(a) a company is wholly owned by the Crown if, and only if, every member is a person falling within sub-paragraph (i) or (ii)—
(i) a Minister of the Crown, government department or company wholly owned by the Crown, or
(ii) a person acting on behalf of a Minister of the Crown, government department or company wholly owned by the Crown,
(b) a company is wholly owned by the wider public sector if, and only if, every member is a person falling within sub-paragraph (i) or (ii)—
(i) a relevant public authority or a company wholly owned by the wider public sector, or
(ii) a person acting on behalf of a relevant public authority or of a company wholly owned by the wider public sector, and
(c) a company is wholly owned by the Crown and the wider public sector if, and only if, condition A, B or C is met.
(2A) In subsection (2)(c)—
(a) condition A is met if—
(i) at least one member is a person falling within subsection (2)(a)(i) or (ii),
(ii) at least one member is a person falling within subsection (2)(b)(i) or (ii), and
(iii) every member is a person falling within subsection (2)(a)(i) or (ii) or (b)(i) or (ii),
(b) condition B is met if—
(i) at least one member is a person falling within subsection (2)(a)(i) or (ii) or (b)(i) or (ii),
(ii) at least one member is a company wholly owned by the Crown and the wider public sector, and
(iii) every member is a person falling within subsection (2)(a)(i) or (ii) or (b)(i) or (ii) or a company wholly owned by the Crown and the wider public sector, and
(c) condition C is met if every member is a company wholly owned by the Crown and the wider public sector.
(4) In subsection (3), at the end, insert—
“relevant public authority” means any public authority listed in Schedule 1 other than—
(a) a government department, or
(b) any authority which is listed only in relation to particular information
.
104 Extension of certain provisions to Northern Ireland bodies
(1) Omit—
(a) section 80A of the Freedom of Information Act 2000 (which modifies, in relation to information held by Northern Ireland bodies, certain provisions of the Act relating to historical records etc.), and
(b) paragraph 6 of Schedule 7 to the Constitutional Reform and Governance Act 2010 (which inserts section 80A into the Act of 2000).
(2) The power of the Secretary of State under section 46(2) to (5) of the Act of 2010 to make transitional, transitory or saving provision in connection with the coming into force of paragraph 4 of Schedule 7 to that Act includes power to make such provision in connection with the coming into force of that paragraph of that Schedule as it has effect by virtue of this section.
105 Appointment and tenure of Information Commissioner
(1) In paragraph 2(1) of Schedule 5 to the Data Protection Act 1998 (maximum term of appointment for the Information Commissioner) for “five years” substitute “ seven years ”.
(2) After paragraph 2(3) of that Schedule to that Act (removal of the Information Commissioner from office) insert—
(3A) No motion is to be made in either House of Parliament for such an Address unless a Minister of the Crown has presented a report to that House stating that the Minister is satisfied that one or more of the following grounds is made out—
(a) the Commissioner has failed to discharge the functions of the office for a continuous period of at least 3 months,
(b) the Commissioner has failed to comply with the terms of appointment,
(c) the Commissioner has been convicted of a criminal offence,
(d) the Commissioner is an undischarged bankrupt or the Commissioner's estate has been sequestrated in Scotland and the Commissioner has not been discharged,
(e) the Commissioner has made an arrangement or composition contract with, or has granted a trust deed for, the Commissioner's creditors,
(f) the Commissioner is otherwise unfit to hold the office or unable to carry out its functions.
(3B) No recommendation may be made to Her Majesty for the appointment of a person as the Commissioner unless the person concerned has been selected on merit on the basis of fair and open competition.
(3C) A person appointed as the Commissioner may not be appointed again for a further term of office.
(3) Omit paragraph 2(4) and (5) of that Schedule to that Act (termination of term of office on attaining 65 years of age etc. and eligibility for re-appointment).
(4) In the italic heading to paragraph 2 of that Schedule to that Act, after “office” insert “ and appointment ”.
(5) Omit section 18(5) to (7) of the Freedom of Information Act 2000 (spent provisions about period of office of Data Protection Commissioner as first Information Commissioner and application of paragraph 2(4)(b) and (5) of Schedule 5 to the Act of 1998 to that person).
106 Alteration of role of Secretary of State in relation to guidance powers
(1) For section 41C(7) of the Data Protection Act 1998 (code of practice about assessment notices: requirement for approval of Secretary of State) substitute—
(7) The Commissioner must consult the Secretary of State before issuing the code (or an altered or replacement code).
(2) In section 52B of that Act (data-sharing code: approval by the Secretary of State)—
(a) for subsections (1) to (3) substitute—
(1) When a code is prepared under section 52A, the Commissioner must—
(a) consult the Secretary of State, and
(b) submit the final version of the code to the Secretary of State.
(2) The Secretary of State must lay the code before Parliament.”, and
(b) in subsection (6) for the words from the beginning to “the Commissioner” substitute “ Where such a resolution is passed, the Commissioner ”.
(3) For section 55C(5) of that Act (guidance about monetary penalty notices: requirement for approval of Secretary of State) substitute—
(5) The Commissioner must consult the Secretary of State before issuing any guidance under this section.
107 Removal of Secretary of State consent for fee-charging powers etc.
(1) In section 51 of the Data Protection Act 1998 (general duties of the Information Commissioner)—
(a) in subsection (8) (power to charge fees, with the consent of the Secretary of State, in relation to any Part 6 services)—
(i) omit “with the consent of the Secretary of State”, and
(ii) before “services” insert “ relevant ”, and
(b) after subsection (8) insert—
(8A) In subsection (8) “relevant services” means—
(a) the provision to the same person of more than one copy of any published material where each of the copies of the material is either provided on paper, a portable disk which stores the material electronically or a similar medium,
(b) the provision of training, or
(c) the provision of conferences.
(8B) The Secretary of State may by order amend subsection (8A).
(2) In section 67(5)(a) of that Act (orders under the Act subject to negative procedure) after “51(3)” insert “ or (8B) ”.
(3) In section 47 of the Freedom of Information Act 2000 (general functions of the Information Commissioner)—
(a) in subsection (4) (power to charge fees, with the consent of the Secretary of State, in relation to services provided under that section)—
(i) omit “with the consent of the Secretary of State”, and
(ii) before “services” insert “ relevant ”, and
(b) after subsection (4) insert—
(4A) In subsection (4) “relevant services” means—
(a) the provision to the same person of more than one copy of any published material where each of the copies of the material is either provided on paper, a portable disk which stores the material electronically or a similar medium,
(b) the provision of training, or
(c) the provision of conferences.
(4B) The Secretary of State may by order amend subsection (4A).
(4C) An order under subsection (4B) may include such transitional or saving provision as the Secretary of State considers appropriate.
(4D) The Secretary of State must consult the Commissioner before making an order under subsection (4B).
(4) In section 82(3)(a) of that Act (orders under the Act subject to negative procedure) after “4(1)” insert “ or 47(4B) ”.
108 Removal of Secretary of State approval for staff numbers, terms etc.
(1) Paragraph 4 of Schedule 5 to the Data Protection Act 1998 (appointment of officers and staff of the Information Commissioner) is amended as follows.
(2) After sub-paragraph (4) insert—
(4A) In making appointments under this paragraph, the Commissioner must have regard to the principle of selection on merit on the basis of fair and open competition.
(3) Omit sub-paragraph (5) (approval of Secretary of State required for number, and terms and conditions, of persons to be appointed).
(1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert—
Offence of stalking
2A (1) A person is guilty of an offence if—
(a) the person pursues a course of conduct in breach of section 1(1), and
(b) the course of conduct amounts to stalking.
(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person's course of conduct amounts to stalking of another person if—
(a) it amounts to harassment of that person,
(b) the acts or omissions involved are ones associated with stalking, and
(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.
(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—
(a) following a person,
(b) contacting, or attempting to contact, a person by any means,
(c) publishing any statement or other material—
(i) relating or purporting to relate to a person, or
(ii) purporting to originate from a person,
(d) monitoring the use by a person of the internet, email or any other form of electronic communication,
(e) loitering in any place (whether public or private),
(f) interfering with any property in the possession of a person,
(g) watching or spying on a person.
(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both.
(5) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to six months.
(6) This section is without prejudice to the generality of section 2.
(2) After section 4 of that Act (putting people in fear of violence) insert—
Stalking involving fear of violence or serious alarm or distress
4A (1) A person (“A”) whose course of conduct—
(a) amounts to stalking, and
(b) either—
(i) causes another (“B”) to fear, on at least two occasions, that violence will be used against B, or
(ii) causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities,
is guilty of an offence if A knows or ought to know that A's course of conduct will cause B so to fear on each of those occasions or (as the case may be) will cause such alarm or distress.
(2) For the purposes of this section A ought to know that A's course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.
(3) For the purposes of this section A ought to know that A's course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress.
(4) It is a defence for A to show that—
(a) A's course of conduct was pursued for the purpose of preventing or detecting crime,
(b) A's course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) the pursuit of A's course of conduct was reasonable for the protection of A or another or for the protection of A's or another's property.
(5) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or
(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding the statutory maximum, or both.
(6) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (5)(b) to twelve months is to be read as a reference to six months.
(7) If on the trial on indictment of a person charged with an offence under this section the jury find the person not guilty of the offence charged, they may find the person guilty of an offence under section 2 or 2A.
(8) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (7) convicted before it of an offence under section 2 or 2A as a magistrates' court would have on convicting the person of the offence.
(9) This section is without prejudice to the generality of section 4.
After section 2A of the Protection from Harassment Act 1997 (for which see section 111) insert—
Power of entry in relation to offence of stalking
2B (1) A justice of the peace may, on an application by a constable, issue a warrant authorising a constable to enter and search premises if the justice of the peace is satisfied that there are reasonable grounds for believing that—
(a) an offence under section 2A has been, or is being, committed,
(b) there is material on the premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence,
(c) the material—
(i) is likely to be admissible in evidence at a trial for the offence, and
(ii) does not consist of, or include, items subject to legal privilege, excluded material or special procedure material (within the meanings given by sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984), and
(d) either—
(i) entry to the premises will not be granted unless a warrant is produced, or
(ii) the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
(2) A constable may seize and retain anything for which a search has been authorised under subsection (1).
(3) A constable may use reasonable force, if necessary, in the exercise of any power conferred by virtue of this section.
(4) In this section “premises” has the same meaning as in section 23 of the Police and Criminal Evidence Act 1984.