Commentary on Sections
Schedule 5: Persons specified for the purposes of section 82
195.Schedule 5 is an exhaustive list of those categories of people who may be protected under these provisions. It includes witnesses, jurors and other people involved in the legal system (paragraphs 1-12), law enforcement and other officers (paragraphs 13-26), informants (paragraph 27), and persons who have or have had a significant connection with a person falling within any of those categories, such as family members (paragraph 28).
Section 83: Joint arrangements
196.This section allows for two or more protection providers to make joint arrangements under these provisions. Subsection (2) provides that the powers conferred are exercisable jointly or by one of the providers with the agreement of the others.
Section 84: Transfer of responsibility to other protection provider
197.This section enables responsibility for the protection of a witness to pass from one protection provider to another in cases such as those where the protected person has relocated. It aims to improve current practice in such cases, where a police force would require its officers to travel long distances in order to continue protection arrangements. This provision would facilitate an agreement, whereby responsibility for such arrangements could be transferred to police officers in the new force area.
198.An agreement could include provision for the reimbursement of costs incurred (see subsection (2)). Subsection (3) confers powers on the second protection provider to vary or cancel the arrangements or to transfer the arrangements to a third protection provider. The transfer agreement must be recorded (subsection (4)).
Section 85: Duty to assist protection providers
199.This section places a duty on all public authorities to take reasonable steps to provide assistance to protection providers when requested so to do. This will assist where the public authority is involved in the provision of services directly to citizens, such as education or health authorities, and these services are requested without any historic documentation – or with anonymised documentation – being available for the protected person and other members of his family.
Section 86: Offence of disclosing information about protection arrangements
200.This section creates an offence which can be committed either by protected persons, those protecting them or third parties if they reveal information about protection arrangements.
Section 87: Defences to liability under section 86
201.This section sets out defences to the offence in section 86. Examples are where the disclosure is made by the protected person about himself, and does not endanger the safety of any person; or where the disclosure is made for the purposes of the prevention, detection or investigation of crime. If sufficient evidence of such a defence is raised, it will be for the prosecution to prove that the defence is not satisfied (subsection (7)). Subsection (5) provides that the Secretary of State can by order make provision prescribing circumstances in which disclosure of information under section 86(1) does not constitute an offence in England, Wales and Northern Ireland. Subsection (6) provides that Scottish Ministers can by order make provision prescribing circumstances in which disclosure of information under section 86(1) does not constitute an offence in Scotland.
Section 88: Offences of disclosing information relating to persons assuming new identity
202.This section creates an offence which can be committed either by protected persons, those protecting them or third parties if they reveal information about a protected person’s new identity.
Section 89: Defences to liability under section 88
203.This section sets out defences to an offence in section 88. Examples are where the disclosure is made by the protected person about himself, and does not endanger the safety of any person; or where the disclosure is made for the purposes of the prevention, detection or investigation of crime. If sufficient evidence of such a defence is raised, it will be for the prosecution to prove that the defence is not satisfied (subsection (7)). Subsection (5) provides that the Secretary of State can by order make provision prescribing circumstances in which disclosure of information under section 88(1) or (2) does not constitute an offence in England, Wales and Northern Ireland. Subsection (6) provides that Scottish Ministers can by order make provision prescribing circumstances in which disclosure of information under section 88(1) or (2) does not constitute an offence in Scotland.
Section 90: Protection from liability
204.This section exempts a protected person from civil or criminal proceedings if he makes false or misleading statements about his identity in order to ensure that his new identity is not disclosed. Without this section, protected persons (and their family members) with new identities may be committing offences when they claim, for example, social security benefits if they state that they have never been known by any other name.
Section 91: Transitional provision
205.This section allows for arrangements for protection which are already in place on the commencement of section 82 to be treated as having been made under the new statutory provisions. For example, it will be possible for arrangements made for a witness in 2001 to be treated as having been made under the new provisions. One effect of this is that it may be an offence to disclose information about the arrangements under section 86.
206.In order for any pre-commencement protection arrangements to be brought within the statutory scheme, certain conditions must be satisfied (see subsections (3) to (5)). In particular, the protection provider must determine that it is appropriate to treat the arrangements as having been made under the new statutory provisions. A record of this determination must be made (see subsections (6) and (7)). Subsections (8) to (11) ensure that arrangements which were made by the National Criminal Intelligence Service, the National Crime Squad or Her Majesty’s Customs and Excise, and which become the responsibility of a protection provider, can also be treated as having been made under the new statutory provisions.
Section 92: Transitional provision: supplemental
207.This section clarifies how sections 86, 88 and 90 apply in cases which are covered by the transitional arrangements. Section 86(1) and (2) and section 88(1) and (2) would only apply where information is disclosed on or after the date of the record of determination specified in section 91(7). Section 90 would only apply where a false or misleading representation is made on or after the date of the record of determination specified in section 91(7).
Section 93: Provision of information
208.This section requires the protection provider to ensure that the protected person is informed of the implications of arrangements being provided for him/her under these provisions. Subsection (3) allows for an explanation to be provided to an appropriate person in cases where the protected person would be unable to understand such an explanation himself. Subsection (4) provides that in cases where joint arrangements are made under section 82(1) one protection provider should be nominated to perform this duty.
Section 94: Interpretation of Chapter 4
209.This section provides definitions of expressions used in this Chapter, such as “protected persons” and “persons associated with protected persons”. By virtue of subsection (6) a witness includes a person who has provided information which might be used in legal proceedings, whether or not the person is actually called to give evidence. By virtue of subsection (7) a witness does not include the accused, unless he is a witness for the prosecution.