Part 1: Criminal Proceedings
133.Article 89.4 of the Statute states that:
If a person sought is being proceeded against or is serving a sentence in the requested state for a crime different from that for which surrender to the [ICC] is sought, the requested State, after making its decision to grant the request, shall consult the [ICC].
The purpose of the consultations would be determine when and how the surrender will take place. There may be circumstances in which the ICC agrees to allow the domestic proceedings to be completed before the person’s surrender. An example might be if a lengthy domestic trial is close to completion or involves sensitive evidence which might not be available if the trial is postponed.
Paragraphs 2 to 4: Criminal proceedings
134.Paragraph 2 is intended to implement Article 89.4 where criminal proceedings are taking place in England and Wales or Northern Ireland; paragraphs 3 and 4 make equivalent provision where the criminal proceedings are before a Scottish or a Service court respectively. Paragraph 2 sets out what is to happen if, when the Secretary of State receives a request from the ICC for arrest and surrender, the person concerned is already undergoing criminal proceedings. The Secretary of State will inform the relevant court which will, if necessary, adjourn its proceedings so that proceedings under Part 2 can take place to determine whether the person should be delivered up. If a delivery order is made and the criminal proceedings are still pending or in progress, the Secretary of State is required to consult the ICC. If the ICC wishes to go ahead immediately with the person’s surrender, the Secretary of State will direct that the domestic proceedings be discontinued and the delivery order be executed. The discontinuance of the domestic proceedings is without prejudice to the possible institution of fresh proceedings at a later date.
Paragraph 5: Effect on custodial sentences
135.This paragraph provides that terms of imprisonment or detention imposed by a domestic court must still be served even if a person is delivered up to the ICC (sub-paragraph 5(1)) or discharged after delivery proceedings (sub-paragraph 5(2)). The time spent by that person in the custody of the ICC or another State of enforcement will count towards the completion of his domestic sentence. If that domestic sentence is not completed by the time the person is either acquitted by the ICC or completes any term of imprisonment imposed by the ICC, he shall be returned to serve out that sentence. Sub-paragraph (4) requires the Secretary of State to consult the Scottish Ministers in the case of prisoners serving sentences in Scotland.
Paragraph 6: Power to suspend or revoke other orders
136.This paragraph gives the competent court which has made a delivery order power to make sure that its order is executed, including by suspending or revoking any other warrant, order or sentence (other than imprisonment, which is dealt with in paragraph 5) made by any domestic court. Paragraphs 10 and 14 make similar provision with particular regard to cases where the person to be delivered up at the request of the ICC is also subject to an order for extradition or for delivery to another International Tribunal; again the competent court has the power to suspend or revoke any such order to enable the delivery order under this Act to be executed.
