Section 30 of the Freedom of Information Act provides that:
Information held by a public authority is exempt information if
it has at any time been held by the authority for the purposes of
-
(a) any investigation which the public authority has a duty to conduct
with a view to it being ascertained: -
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it,
(b) any investigation which is conducted by the authority and in
the circumstances may lead to a decision by the authority to institute
criminal proceedings which the authority has power to conduct,
or
(c) any criminal proceedings which the authority has power to conduct.
Information held by a public authority is exempt information if
-
(a) it was obtained or recorded by the authority for the purposes
of its functions relating to -
(i) investigations falling within subsection (1)(a) or (b),
(ii) criminal proceedings which the authority has power to conduct,
(iii) investigations (other than investigations falling within
subsection (1)(a)) which are conducted by the authority for
any of the purposes specified in section 31(2) and either
by virtue of Her Majesty's prerogative or by virtue of powers
conferred by or under any enactment, or
(iv) civil proceedings which are brought by or on behalf of the
authority and arise out of such investigations, and,
(b) it relates to the obtaining of information from confidential
sources.
The duty to confirm or deny does not arise in relation to information
which is (or if it were held by the public authority would be) exempt
information by virtue of subsection (1) or (2).
In relation to the institution or conduct of criminal proceedings
or the power to conduct them, references in subsection (1)(b) or (c)
and subsection (2)(a) to the public authority include references -
(a) to any officer of the authority;
(b) in the case of a government department other than a Northern
Ireland department, to the Minister of the Crown in charge of
the department, and
(c) in the case of a Northern Ireland department, to the Northern
Ireland Minister in charge of the department.
(5) In this section -
"criminal proceedings" includes -
(a) proceedings before a court-martial constituted under the Army
Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957
or a disciplinary court constituted under section 52G of the Act
of 1957;
(b) proceedings on dealing summarily with a charge under the Army
Act 1955 or the air Force Act 1955 or on summary trial under the
Naval Discipline Act 1957;
(c) proceedings before a court established by section 83ZA of the
Army Act 1955, section 83ZA of the Air Force Act or section 52FF
of the Naval Discipline Act 1957 (summary appeal courts);
(d) proceedings before the Court-Martial Appeal Court, and proceedings
before a Standing Civilian Court;
" offence" includes any offence under the Army Act 1955, the Air Force
Act 1955 or the Naval Discipline Act 1957.
(6) In the application of this section to Scotland -
(a) in subsection (1)(b), for the words from a "decision" to
the end there is substituted "a decision by the authority
to make a report to the procurator fiscal for the purpose of enabling
him to determine whether criminal proceedings should be instituted";
(b) in subsections (1)(c) and (2)(a)(ii) for "which the authority
has power to conduct" there is substituted "which have
been instituted in consequence of a report made by the authority
to the procurator fiscal", and
(c) for any reference to a person being charged with an offence
there is substituted a reference to the person being prosecuted
for the offence.
1.1 General Points: explanation of key terms
1.1.1 The term charged:
This would include:
the issue of a summons;
the situation where criminal proceedings are initiated by way of
a bill of indictment ("a voluntary bill of indictment")
under the Indictments (Procedure) Rules 1971 (SI 1971 No.2084, as
amended);
where proceedings are instituted by way of a written charge and
requisition under section 29 of and Schedule 2 to the Criminal Justice
Act 2003; and
where a "conditional caution" is given under section 22
of the Criminal Justice Act 2003.
(These provisions of the Criminal Justice Act 2003 have not yet been brought
into force.)
1.1.2 Powers of public authorities
Subsection (4) explains that the references in this section to public authorities'
powers to conduct criminal proceedings, needs to be taken to include both
individual officers of the authority and, in the case of government departments,
ministers. This is necessary because, as is often the case, the power to
prosecute is sometimes specifically vested in a particular office-holder
within the authority rather than in the authority generally. For example,
certain powers to prosecute are given to inspectors appointed under section
19 of the Health and Safety at work etc. Act 1974, rather than, say, to
the HSE as the relevant public authority.
1.1.3 The term criminal proceedings
Section 30(5) defines criminal proceedings to include proceedings before
courts-martial and Courts Martial Appeals Courts, and proceedings involving
charges brought under various pieces of armed forces legislation as defined
in the section, as well as criminal proceedings before civilian criminal
courts in the United Kingdom.
