The International Criminal Court Act 2001 (Overseas Territories) Order 2009

Article 2(1)

ANNEX 1 EXTENSION OF THE PROVISIONS OF THE INTERNATIONAL CRIMINAL COURT ACT 2001, WITH EXCEPTIONS, ADAPTATIONS AND MODIFICATIONS, TO THE TERRITORIES LISTED IN ANNEX 2

PART 1 THE INTERNATIONAL CRIMINAL COURT

The ICC and the ICC Statute

5.—(1) In this Act–

“the ICC” means the International Criminal Court established by the Statute of the International Criminal Court, done at Rome on 17th July 1998;

“the ICC Statute” means that Statute; and

“ICC crime” means a crime (other than the crime of aggression) over which the ICC has jurisdiction in accordance with the ICC Statute.

(2) References in this Act to articles are, unless otherwise indicated, to articles of the ICC Statute.

(3) Schedule 1 to this Act contains supplementary provisions relating to the ICC.

PART 2 ARREST AND DELIVERY OF PERSONS

Proceedings on request

Request for arrest and surrender

6.—(1) Where the Governor receives a request from the ICC for the arrest and surrender of a person alleged to have committed an ICC crime, or to have been convicted by the ICC, he shall transmit the request and the documents accompanying it to an appropriate judicial officer.

(2) Omitted

(3) If the request is accompanied by a warrant of arrest and the appropriate judicial officer is satisfied that the warrant appears to have been issued by the ICC, he shall endorse the warrant for execution in the Territory.

(4) If in the case of a person convicted by the ICC the request is not accompanied by a warrant of arrest, but is accompanied by–

(a) a copy of the judgment of conviction,

(b) information to demonstrate that the person sought is the one referred to in the judgment of conviction, and

(c) where the person sought has been sentenced, a copy of the sentence imposed and a statement of any time already served and the time remaining to be served,

the officer shall issue a warrant for the arrest of the person to whom the request relates.

(5) In this Part a warrant endorsed or issued under this section is referred to as a “section 2 warrant”.

Request for provisional arrest

7.—(1) This section applies where the Governor receives from the ICC a request for the provisional arrest of a person alleged to have committed an ICC crime or to have been convicted by the ICC.

(2) If it appears to the Governor that application for a warrant should be made in the Territory–

(a) he shall transmit the request to a constable and direct the constable to apply for a warrant for the arrest of that person, and

(b) on an application by a constable stating on oath that he has reason to believe–

(i) that a request has been made on grounds of urgency by the ICC for the arrest of a person, and

(ii) that the person is in, or on his way to, the Territory,

an appropriate judicial officer shall issue a warrant for the arrest of that person.

(3) Omitted

(4) Where an appropriate judicial officer issues a warrant under this section, he shall notify the Governor that he has done so.

(5) In this Part a warrant issued under this section is referred to as a “provisional warrant”.

Dealing with a person arrested under provisional warrant

8.—(1) A person arrested under a provisional warrant shall be brought before a competent court as soon as is practicable.

(2) If there is produced to the court a section 2 warrant in respect of that person, the court shall proceed as if he had been arrested under that warrant.

(3) If no such warrant is produced, the court shall remand him pending the production of such a warrant.

(4) Any provision made by Order in Council under paragraph 3 of Schedule 1 to this Act as it applies in the United Kingdom (power to make provision to give effect to Rules of Evidence and Procedure) specifying–

(a) the period for which a person may be so remanded at any time, and

(b) the total period for which a person may be so remanded,

shall likewise apply in the Territory.

(5) If at any time when the person is so remanded there is produced to the court a section 2 warrant in respect of him–

(a) the court shall terminate the period of remand, and

(b) he shall be treated as if arrested under that warrant–

(i) if he was remanded in custody, at the time the warrant was produced to the court;

(ii) if he was remanded on bail, when he surrenders to his bail.

(6) If no such warrant is produced to the court before the end of the period of the remand (including any extension of that period), the court shall discharge him.

(7) The fact that a person has been discharged under this section does not prevent his subsequent arrest under a section 2 warrant.

Proceedings for delivery order

9.—(1) A person arrested under a section 2 warrant shall be brought before a competent court as soon as is practicable.

(2) The competent court shall make a delivery order if it is satisfied–

(a) that the warrant–

(i) is a warrant of the ICC and has been duly endorsed under section 2(3), or

(ii) has been duly issued under section 2(4), and

(b) that the person brought before the court is the person named or described in the warrant.

(3) A “delivery order” is an order that the person be delivered up–

(a) into the custody of the ICC, or

(b) if the ICC so directs in the case of a person convicted by the ICC, into the custody of the state of enforcement,

in accordance with arrangements made by the Governor.

(4) In the case of a person alleged to have committed an ICC crime, the competent court may adjourn the proceedings pending the outcome of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the ICC.

(5) In deciding whether to make a delivery order the competent court is not concerned to enquire–

(a) whether any warrant issued by the ICC was duly issued, or

(b) in the case of a person alleged to have committed an ICC crime, whether there is evidence to justify his trial for the offence he is alleged to have committed.

(6) Whether or not it makes a delivery order, the competent court may of its own motion, and shall on the application of the person arrested, determine–

(a) whether the person was lawfully arrested in pursuance of the warrant, and

(b) whether his rights have been respected.

(7) In making a determination under subsection (6) the competent court shall apply the principles which would be applied on an application for judicial review.

(8) If the competent court determines–

(a) that the person has not been lawfully arrested in pursuance of the warrant, or

(b) that the person’s rights have not been respected,

it shall make a declaration to that effect, but may not grant any other relief.

(9) The competent court shall notify the Governor of any declaration under subsection (8) and the Governor shall transmit that notification to the ICC.

Supplementary provisions as to proceedings before competent court

10.—(1) Omitted

(2) In relation to proceedings before a competent court under section 5–

(a) the court has the like powers, as nearly as may be, including power to adjourn the case and meanwhile to remand the person whose surrender is sought, as if the proceedings were the summary trial of an information against that person;

(b) if the court adjourns the proceedings, it shall on doing so remand the person whose surrender is sought;

(c) the proceedings are criminal proceedings for the purposes of any law of the Territory, or other arrangements in the Territory, for the provision of legal advice, assistance or representation in criminal proceedings;

(d) the provisions of the law of the Territory as to defence costs on dismissal of proceedings apply, reading references to the dismissal of the proceedings, however expressed, as a reference to the discharge of the person arrested.

(3) Omitted

Consent to surrender

11.—(1) A person arrested under this Part may consent to being delivered up into the custody of the ICC or, in the case of a person convicted by the ICC, of the state of enforcement.

This is referred to below as “consent to surrender”.

(2) Consent to surrender may be given—

(a) by the person himself, or

(b) in circumstances in which it is inappropriate for the person to act for himself, by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.

(3) Consent to surrender must—

(a) be given in writing in the prescribed form or a form to the like effect, and

(b) be signed in the presence of a magistrate or other judicial officer.

The “prescribed form” means that prescribed by rules made by the rule-making authority for the competent court.

(4) Where consent to surrender has been given—

(a) a competent court before which the person is brought shall forthwith make a delivery order, and

(b) he shall be taken to have waived his rights under section 12 (right to review of delivery order).

(5) Where consent to surrender has been given, notice of that fact shall be given—

(a) if the person is in custody, to the prison governor, constable or other person in whose custody he is;

(b) if the person is on bail in the Territory, to the officer in charge of the police station at which is required to surrender to custody.

(6) For the purposes of subsection (5)(b) notice shall be treated as given if it is sent by registered post, or recorded delivery, addressed to the officer mentioned.

Proceedings where court refuses delivery order

Procedure where court refuses order

12.—(1) If a competent court refuses to make a delivery order, it shall—

(a) make an order remanding the person arrested, and

(b) notify the Governor of its decision and of the grounds for it.

(2) If the court is informed without delay that an appeal is to be brought under section 9, the order remanding the person arrested shall continue to have effect.

(3) If the court is not so informed, it shall discharge the person arrested.

Appeal against refusal of delivery order

13.—(1) If a competent court in the Territory refuses to make a delivery order, the Governor may appeal against the decision to the Supreme Court.

No permission is required for such an appeal, which shall be by the way of re-hearing.

(2) If the Supreme Court allows the appeal it may—

(a) make a delivery order, or

(b) remit the case to the competent court to make a delivery order in accordance with the decision of the Supreme Court.

(3) If the Supreme Court dismisses the appeal, the Governor may follow the normal appellate process applicable in the Territory so as to appeal the decision of the Supreme Court.

(4) If the Governor’s appeal is ultimately unsuccessful, the Governor may, with the permission of the relevant appellate court or the Judicial Committee of the Privy Council, appeal to the Judicial Committee of the Privy Council.

The right to seek leave to appeal to the Judicial Committee of the Privy Council under this section shall exist even where the provisions of the applicable law in force in the Territory concerning an appeal to the Judicial Committee of the Privy Council do not include a right to appeal in the circumstances covered by this section. The provisions of the applicable law in force in the Territory shall apply in relation to an appeal to the Judicial Committee of the Privy Council under this section, with the omission of such provisions as may restrict the grant of leave to appeal.

(5) On any appeal from the Supreme Court, an appellate court and the Judicial Committee of the Privy Council may exercise any of the powers conferred on the Supreme Court by subsection (2) above.

(6) Where a delivery order is made by the Supreme Court, an appellate court or the Judicial Committee of the Privy Council, the provisions of section 11(1)(a) and (c), (2) and (3) (procedure where court makes delivery order) apply in relation to that court as they apply to a competent court in the Territory which makes a delivery order.

(7) An order for the remand of the arrested person which continues in force under section 8(2) shall cease to have effect if the Supreme Court or an appellate court dismisses the appeal and the Governor does not without delay—

(a) apply for permission to appeal to the Judicial Committee of the Privy Council, or

(b) inform the Supreme Court or the appellate court that he intends to apply for such permission.

Subject to that, any such order shall have effect so long as the case is pending. For this purpose a case is pending (unless proceedings are discontinued) until (disregarding any power of a court to allow a step to be taken out of time) there is no step that the Governor can take.

14.  Omitted

Proceedings where the court makes delivery order

Procedure where court makes order

15.—(1) Where a competent court makes a delivery order in respect of a person, the court shall—

(a) commit the person to custody or on bail to await the Governor’s directions as to the execution of the order,

(b) inform the person of his rights under section 12 (right to review of delivery order) in ordinary terms and in a language which appears to the court to be one which he fully understands and speaks, and

(c) notify the Governor of its decision.

(2) A person committed to custody under subsection (1)(a) shall be committed to prison or to the custody of a constable.

(3) A court which commits a person to custody under subsection (1)(a) may subsequently grant bail.

Right to review of delivery order

16.—(1) The Governor shall not give directions for the execution of a delivery order until after the end of the period of 15 days beginning with the date on which the order is made.

This does not apply if the person in respect of whom the order is made—

(a) waives his rights under this section (see section 13), or

(b) is taken to have done so (see section 7(4)(b)).

(2) If before the end of that period an application for habeas corpus is made by the person in respect of whom the delivery order is made, or on his behalf, directions for the execution of the order shall not be given while proceedings on the application are still pending.

(3) Proceedings on any such application shall be treated as pending until they are discontinued or there is no further possibility of an appeal.

For this purpose any power of a court to allow an appeal out of time shall be disregarded.

(4) On an application for habeas corpus to which this section applies—

(a) the court shall set aside the delivery order and order the person’s discharge if it is not satisfied of the matters mentioned in section 5(2), and

(b) the provisions of section 5(4) to (9) apply in relation to the court to which the application is made as they apply to the court that made the delivery order (but with the substitution in section 5(6) for “makes a delivery order” of “sets aside the delivery order”).

(5) Omitted

Waiver of right to review

17.—(1) A person in respect of whom a delivery order has been made may waive his right to review of the order.

(2) Waiver of the right to review may be made—

(a) by the person himself, or

(b) in circumstances in which it is appropriate for a person to act for himself, by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.

(3) Waiver of the right to review must—

(a) be made in writing in the prescribed form or a form to the like effect, and

(b) be signed in the presence of a magistrate or other judicial officer.

The “prescribed form” means that prescribed by rules made by the rule-making authority for the competent court.

(4) Where a person has waived his right to review of the delivery order—

(a) no such application as is mentioned in section 12 may be made, and

(b) the order shall be taken for all purposes to be validly made.

(5) Where a person has waived his right to review, notice of that fact shall be given—

(a) if the person is in custody, to the prison governor, constable or other person in whose custody he is;

(b) if the person is on bail in the Territory, to the officer in charge of the police station at which he is required to surrender to custody.

(6) For the purposes of subsection (5)(b) notice shall be treated as given if it is sent by registered post, or recorded delivery, addressed to the officer mentioned.

Warrants, custody, bail and related matters

Effect of warrant of arrest

18.—(1) For the purpose of any enactment or rule of law relating to warrants of arrest—

(a) a section 2 warrant endorsed or issued in the Territory, or

(b) a provisional warrant issued in the Territory,

shall be treated as if it were a warrant for the arrest of a person for an offence committed in the Territory.

(2) Any such warrant may be executed by any person to whom it is directed or by any constable.

(3) A person arrested under any such warrant shall be deemed to continue in legal custody until, in accordance with this Part, he is brought before a competent court.

Effect of delivery order

19.—(1) A delivery order is sufficient authority for any person acting in accordance with the directions of the Governor to receive the person to whom the order relates, keep him in custody and convey him to the place where he is to be delivered up into the custody of the ICC (or, as the case may be, of the state of enforcement) in accordance with arrangements made by the Governor.

(2) A person in respect of whom a delivery order is in force is deemed to be in legal custody at any time when, being—

(a) in the Territory, or

(b) on board a British ship, a British aircraft or a British hovercraft, or a ship, aircraft or hovercraft registered in the Territory,

he is being taken under the order to or from any place or is being kept in custody pending his delivery up under the order.

(3) A person authorised for the purposes of a delivery order to take the person to whom the order relates to or from any place or, to keep him in custody, has (whether in or outside the Territory) all the powers, authority, protection and privileges of a constable in the Territory.

(4) If a person in respect of whom a delivery order is in force escapes or is unlawfully at large, he may be arrested without warrant by a constable and taken to any place where or to which, by virtue of this Part, he is required to be or to be taken.

(5) Omitted

Bail and custody: general

20.—(1) Where under this Part a court has power to remand a person, the court may—

(a) remand him in custody, that is, commit him for the period of the remand to prison or to the custody of a constable, or

(b) if an application for bail is made to the court, remand him on bail, that is, direct him to surrender himself into the custody of the officer in charge of a specified police station at the time appointed for him to do so.

(2) The law of the Territory as to bail applies to proceedings under this Part in the Territory as it applies to proceedings against a fugitive offender.

(3) The time appointed under subsection (1)(b) for a person to surrender to custody—

(a) shall be a time appointed by the officer in charge of the specified police station and notified in writing to the person remanded, and

(b) shall not be more than 24 hours before the time at which it appears to that officer that the period of remand is likely to end.

(4) Omitted

(5) Nothing in this Part shall be taken as authorising a court to grant bail to a person who is serving a sentence of imprisonment or detention to which he has been sentenced by a national court, or who is in custody awaiting trial or sentence by a national court.

Bail and custody: supplementary

21.—(1) The following provisions apply where a person is granted bail under this Part by a competent court in the Territory.

(2) Where a court—

(a) grants bail but is unable to release the person because no surety or suitable surety is available, and

(b) fixes the amount in which the surety is to be bound with a view to the recognizance of the surety being entered into subsequently,

the court shall in the meantime commit the person to the custody of a constable.

(3) During the period between the surrender of a person to custody and the end of the period of remand he shall be treated as committed to the custody of the constable to whom he surrenders.

(4) Where it appears to that officer that the end of the period of remand will be unexpectedly delayed, he shall grant the person bail subject to a duty to surrender himself into the custody of the officer in charge of the specified police station at the time appointed for him to do so. The time appointed under this subsection for the person to surrender to custody—

(a) shall be a time to be appointed by the officer in charge of the specified police station and notified in writing to the person remanded, and

(b) shall not be more than 24 hours before the time at which it appears to that officer that the period of remand is likely to end.

(5) If a person required to surrender to custody in accordance with subsection (4) fails to do so—

(a) the court by which he was remanded may issue a warrant for his arrest,

(b) provisions of section 14 (effect of warrant of arrest) apply in relation to the warrant, and

(c) on his arrest the person shall be brought before the court which shall reconsider the question of bail.

(6) In this section “the specified police station” means the police station specified by the competent court under section 16(1)(b).

Bail and custody: consultation with the ICC, &c

22.—(1) Where an application for bail is made in proceedings under this Part in the Territory—

(a) the court shall notify the Governor of the application,

(b) bail shall not be granted without full consideration of any recommendations made by the ICC.

(2) Omitted

(3) In considering any such application as is mentioned in subsection (1) the court shall consider—

(a) whether, given the gravity of the offence or offences he is alleged to have committed or, as the case may be, of which he has been convicted by the ICC, there are urgent and exceptional circumstances justifying release on bail, and

(b) whether any necessary measures have been or will be taken to secure that the person will surrender to custody in accordance with the terms of his bail.

Discharge of person not delivered up

23.—(1) If the person in respect of whom a delivery order has been made is not delivered up under the order within 40 days after it was made, an application may be made, by him or on his behalf, for his discharge.

(2) The application shall be made to the Supreme Court.

(3) On an application under this section the court shall order the person’s discharge unless reasonable cause is shown for the delay.

Discharge of the person no longer required to be surrendered

24.—(1) Where the ICC informs the Governor that a person arrested under this Part is no longer required to be surrendered—

(a) the Governor shall notify an appropriate judicial authority of that fact, and

(b) the authority shall, on receipt of the notification, make an order for his discharge.

(2) Omitted

Request for transit and unscheduled landing

Request for transit

25.—(1) This section applies where the Governor receives a request from the ICC for transit of a person being surrendered by another state.

(2) If the Governor accedes to the request—

(a) the request shall be treated for the purposes of this Part as if it were a request for that person’s arrest and surrender,

(b) the warrant accompanying the request shall be deemed to have been endorsed under section 2(3), and

(c) the person to whom the request relates shall be treated on arrival in the Territory as if he had been arrested under that warrant.

(3) In relation to a case where this section applies—

(a) the reference in section 5(2)(a)(i) to the warrant having been duly endorsed under section 2(3) shall be read as a reference to the Governor having acceded to the request for transit; and

(b) section 12(1) (right to review of delivery order: period for making application) shall have effect as if the reference to 15 days (the period during which directions to execute delivery order are not to be given) were a reference to two days.

(4) A person in transit under this section shall not be granted bail.

Unscheduled landing

26.—(1) If a person being surrendered by another state makes an unscheduled landing in the Territory, he may be arrested by any constable and shall be brought before a competent court as soon as is practicable.

(2) The court shall remand him in custody pending—

(a) receipt by the Governor of a request from the ICC for his transit, and

(b) the Governor’s decision whether to accede to the request.

(3) If no such request is received by the Governor before the end of the period of 96 hours beginning with the time of the arrested person’s unscheduled landing—

(a) the Governor shall forthwith notify the court of that fact, and

(b) the court shall, on receipt of the notification, discharge the arrested person.

(4) If the Governor receives such a request before the end of that period, he shall notify the court without delay of his decision whether to accede to the request.

(5) If the Governor notifies the court that he has decided to accede to the request—

(a) the court shall, on receipt of the notification, terminate the period of remand, and

(b) the provisions of section 21 (request for transit) apply with the substitution for the reference in subsection (2)(c) to the time of arrival in the Territory of a reference to the time of notification to the court.

(6) If the Governor notifies the court that he has decided not to accede to the request, the court shall, on receipt of the notification, discharge the arrested person.

(7) Omitted.

Supplementary provisions

Provisions as to state or diplomatic immunity

27.—(1) Any state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings under this Part in relation to that person.

(2) Where—

(a) state or diplomatic immunity attaches to a person by reason of a connection with a state other than a state party to the ICC Statute, and

(b) waiver of that immunity is obtained by the ICC in relation to a request for that person’s surrender,

the waiver shall be treated as extending to proceedings under this Part in connection with that request.

(3) A certificate by the Governor—

(a) that a state is or is not a party to the ICC Statute, or

(b) that there has been such a waiver as is mentioned in subsection (2),

is conclusive evidence of that fact for the purposes of this Part.

(4) The Governor may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings (or further proceedings) under this Part which, but for subsection (1) or (2), would be prevented by state or diplomatic immunity attaching to a person shall not be taken against that person.

(5) Any Order in Council made under section 1 of the United Nations Act 1946 (c.45), as extended by section 23(5) of this Act as it applies in the United Kingdom, shall likewise apply in the Territory.

(6) In this section “state or diplomatic immunity” means any privilege or immunity attaching to a person, by reason of the status of that person or another as head of state, or as representative, official or agent of a state, under—

(a) the Diplomatic Privileges Act 1964 (c.81), the Consular Relations Act 1968 (c.18), the International Organisations Act 1968 (c.48) or the State Immunity Act 1978 (c.33) as applying in the Territory,

(b) any other law applying in the Territory made for the purpose of implementing an international obligation, or

(c) any rule of law derived from customary international law.

Delivery up of persons subject to criminal proceedings, &c

28.—(1) Schedule 2 makes provision for cases where the Governor receives a request from the ICC for the arrest and surrender, or provisional arrest, of a person—

(a) against whom criminal proceedings are pending or in progress before a court in the Territory, or who has been dealt with in such proceedings,

(b) against whom extradition proceedings are pending or in progress in the Territory, or in respect of whom a warrant or order has been made in such proceedings, or

(c) against whom proceedings are pending or in progress in the Territory for a delivery order in connection with proceedings in any other international tribunal.

Documents having effect as warrants, &c

29.—(1) For the purposes of this Part the copy of a warrant issued by the ICC that is transmitted to the Governor shall be treated as if it were the original warrant.

(2) Where facsimile transmission is used—

(a) for the making of a request by the ICC or the transmission of any supporting documents, or

(b) for the transmission of any document in consequence of such a request,

this Part applies as if the documents so sent were the originals of the documents so transmitted. Any such documents shall be receivable in evidence accordingly.

(3) Where the ICC amends a warrant of arrest, the provisions of this Part apply to the amended warrant as if it were a new warrant.

This does not affect the validity of anything done in reliance on the old warrant.

Meaning of “appropriate judicial authority” and “competent court”

30.  For the purposes of this Part—

“appropriate judicial authority” means a magistrate or other judicial authority of the Territory, and

“competent court” means a court consisting of an appropriate judicial officer.

PART 3 OTHER FORMS OF ASSISTANCE

Introduction

Provision of assistance

31.—(1) The powers conferred by this Part on the Governor are exercisable for the purpose of providing assistance to the ICC in relation to investigations or prosecutions where—

(a) an investigation has been initiated by the ICC, and

(b) the investigation and any proceedings arising out of it have not been concluded.

(2) Where facsimile transmission is used—

(a) for the making of a request by the ICC or the transmission of any supporting documents, or

(b) for the transmission of any document in consequence of such a request,

this Part applies as if the documents so sent were the originals of the documents so transmitted.

Any such document shall be receivable in evidence accordingly.

(3) Nothing in this Part shall be read as preventing the provision of assistance to the ICC otherwise than under this Part.

Forms of assistance

Questioning

32.—(1) This section applies where the Governor receives a request from the ICC for assistance in questioning a person being investigated or prosecuted.

(2) The person concerned shall not be questioned in pursuance of the request unless—

(a) he has been informed of his rights under article 55, and

(b) he consents to be interviewed.

(3) The provisions of article 55 are set out in Schedule 3 to this Act.

(4) Consent for the purposes of subsection (2)(b) may be given—

(a) by the person himself, or

(b) in circumstances in which it is inappropriate for the person to act for himself, by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.

(5) Such consent may be given orally or in writing, but if given orally it shall be recorded in writing as soon as its reasonably practicable.

Taking or production of evidence

33.—(1) This section applies where the Governor receives a request from the ICC for assistance in the taking or production of evidence.

For this purpose “evidence” includes documents and other articles.

(2) The Governor may nominate a court in the Territory to receive the evidence to which the request relates.

(3) For this purpose the nominated court—

(a) has the same powers with respect to securing the attendance of witnesses and the production of documents or other articles as it has for the purpose of other proceedings before the court; and

(b) may take evidence on oath.

(4) A person shall not be compelled to give evidence or produce anything in proceedings under this section that he could not be compelled to give or produce in criminal proceedings in the Territory.

(5) If in order to comply with the request it is necessary for the evidence by the court to be verified in any manner, the notice nominating the court shall specify the nature of the verification required.

(6) No order for costs shall be made in proceedings under this section.

Taking or production of evidence: further provisions

34.—(1) The following provisions apply in relation to proceedings before a nominated court under section 29 and the evidence received in the proceedings.

(2) The court may, if it thinks it necessary in order to protect—

(a) victims and witnesses, or a person alleged to have committed an ICC crime, or

(b) confidential or sensitive information,

direct that the public be excluded from the court.

(3) The court shall ensure that a register is kept of the proceedings that indicates, in particular—

(a) which persons with an interest in the proceedings were present,

(b) which of those persons were represented and by whom, and

(c) whether any of those persons was denied the opportunity of cross-examining a witness as to any part of his testimony.

(4) The register shall not be open to inspection except as authorised by the Governor or with the leave of the court.

(5) A copy of the register of the proceedings shall be sent to the Governor for transmission to the ICC.

Service of process

35.—(1) This section applies where the Governor receives from the ICC a summons or other document together with a request for it to be served on a person in the Territory.

(2) The Governor may direct the chief officer of police for the Territory to cause the document to be personally served on that person.

(3) If the document is so served, the chief officer of police shall forthwith inform the Governor when and how it was served.

(4) If it does not prove possible to serve the document, the chief officer of police shall forthwith inform the Governor of that fact and of the reason.

(5) Omitted.

Transfer of prisoner to give evidence or assist in investigation

36.—(1) This section applies where the Governor receives a request from the ICC for the temporary transfer of a prisoner to the ICC for the purposes of identification or for obtaining testimony or other assistance.

(2) Omitted

(3) The Governor may issue a warrant (a “transfer warrant”) requiring the prisoner to be delivered up, in accordance with the arrangements made by the Governor with the ICC, into the custody of the ICC.

(4) A transfer warrant shall not be issued unless a prisoner consents to the transfer, but consent may not be withdrawn after the issue of the warrant.

(5) The following provisions of Part 2 of this Act apply in relation to a transfer warrant under this section as they apply in relation to a delivery order under that Part—

(a) section 15 (effect of delivery order), and

(b) section 24 and Schedule 2 (delivery up of persons subject to criminal proceedings, &c).

(6) In this section “prisoner” means—

(a) a person serving a sentence of detention or imprisonment (including a sentence imposed by a service court),

(b) a person detained in custody otherwise than in pursuance of a sentence, including in particular—

(i) a person in custody awaiting trial or sentence,

(ii) a person committed to prison for contempt or for failure to pay a fine,

(iii) a person in custody in connection with proceedings to which Part 2 or 3 of Schedule 2 applies (extradition or other delivery proceedings),

(iv) a person detained under any law of the Territory relating to the control of entry to the Territory.

(7) For the purposes of any law relating to the control of entry to the Territory a person detained under any provision of that law is not to be regarded as having left the Territory at any time when a transfer warrant is in force in respect of him (including any time when he is in the custody of the ICC).

(8) Omitted.

Entry, search and seizure

37.—(1) This section applies where the Governor receives from the ICC a request for assistance which appears to him to require the exercise of any of the powers of entry, search and seizure available to a constable under the law of the Territory in the investigation of a serious arrestable offence.

(2) The Governor may direct a constable to apply for a warrant or order under the law of the Territory authorising the exercise by him of any of those powers, which shall apply in relation to an ICC crime as it applies to a serious arrestable offence under the law of the Territory.

Taking of fingerprints or non-intimate sample

38.—(1) The provisions of Schedule 4 have effect with respect to the taking of fingerprints or a non-intimate sample in response to a request from the ICC for assistance in obtaining evidence as to the identity of a person.

(2) In subsection (1) and that Schedule, “fingerprints” includes palm prints, and a non-intimate sample is—

(a) a sample of hair other than pubic hair,

(b) a sample taken from a nail or from under a nail,

(c) a swab taken from any part of a person’s body including the mouth but not any other body orifice,

(d) saliva,

(e) a footprint or a similar impression of any part of a person’s body other than a part of his hand.

Orders for exhumation

39.  Proceedings before the ICC in respect of an ICC crime are criminal proceedings for the purposes of any power of a coroner under the law of the Territory to order exhumation.

Provision of records and documents

40.—(1) This section applies where the Governor receives a request from the ICC for the provision of records and documents relating to—

(a) the evidence given in any proceedings in the Territory in respect of conduct that would constitute an ICC crime, or

(b) the results of any investigation of such conduct with a view to such proceedings.

(2) The Governor shall take such steps as appear to him to be appropriate to obtain the records and documents requested, and on their being produced to him he shall transmit them to the ICC.

Investigation of proceeds of ICC crime

41.—(1) Where the Governor receives a request from the ICC for assistance—

(a) in ascertaining whether a person has benefited from an ICC crime, or

(b) in identifying the extent or whereabouts of property derived directly or indirectly from an ICC crime,

the Governor may direct a constable to apply for an order or warrant under Schedule 5.

(2) In that Schedule—

(a) Part 1 makes provision for production or access orders,

(b) Part 2 makes provisions for the issuing of search warrants, and

(c) Part 3 contains supplementary provisions.

Freezing order in respect of property liable to forfeiture

42.  Where the Governor receives a request from the ICC for assistance in the freezing or seizure of proceeds, property and assets or instrumentalities of crime for the purpose of eventual forfeiture, he may—

(a) authorise a person to act on behalf of the ICC for the purpose of applying for a freezing order, and

(b) direct that person to apply for such an order under Schedule 6.

National Security

Production or disclosure prejudicial to national security

43.—(1) Nothing in any of the provisions of this Part requires or authorises the production of documents, or the disclosure of information, which would be prejudicial to the security of the United Kingdom or of any overseas territory.

(2) For the purposes of any such provision a certificate signed by or on behalf of the Secretary of State to the effect that it would be prejudicial to the security of the United Kingdom, or of a specified overseas territory, for specified documents to be produced, or for specified information to be disclosed, is conclusive evidence of that fact.

Supplementary provisions

Verification of material

44.  If in order to comply with a request of the ICC it is necessary for any evidence or other material obtained under this Part to be verified in any manner, the Governor may give directions as to the nature of the verification required.

Transmission of material to the ICC

45.—(1) Any evidence or other material obtained under this Part by a person other than the Governor, together with any requisite verification, shall be sent to the Governor for transmission to the ICC.

(2) Where any evidence or other material is to be transmitted to the ICC, there shall be transmitted—

(a) where the material consists of a document, the original or a copy, and

(b) where the material consists of any other article, the article itself or a photograph or other description of it,

as may be necessary to comply with the request of the ICC.

PART 4 ENFORCEMENT OF SENTENCES AND ORDERS

Sentences of imprisonment

46.  Omitted

47.  Omitted

48.  Omitted

49.  Omitted

50.  Omitted

51.  Omitted

52.  Omitted

Power to make provision for enforcement of other orders

53.—(1) The Governor may make provision by regulations for the enforcement in the Territory of—

(a) fines or forfeitures ordered by the ICC, and

(b) orders by the ICC against convicted persons specifying reparations to, or in respect of, victims.

(2) The regulations may authorise the Governor—

(a) to appoint a person to act on behalf of the ICC for the purposes of enforcing the order, and

(b) to give such directions to the appointed person as appear to him necessary.

(3) The regulations made under this section shall provide for the registration of the order of the ICC by a court in the Territory as a precondition of enforcement.

An order shall not be so registered unless the court is satisfied that the order is in force and not subject to appeal.

If the order has been partly complied with, the court shall register the order for enforcement only so far as it has not been complied with.

(4) The regulations made under this section may provide that—

(a) for the purposes of enforcement an order so registered has the same force and effect,

(b) the same powers are exercisable in relation to its enforcement, and

(c) proceedings for its enforcement may be taken in the same way,

as if the order were an order of a court in the Territory.

The regulations under this section may for that purpose apply all or any of the provisions (including provisions of subordinate legislation) relating to the enforcement in the Territory of orders of a court of a country or territory outside the Territory.

(5) A court shall not exercise its powers of enforcement under the regulations in relation to any property unless it is satisfied—

(a) that a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court and

(b) that the exercise of the powers will not prejudice the rights of bona fide third parties.

(6) The regulations under this section may provide that the reasonable costs of and incidental to the registration and enforcement of an order are recoverable as if they were sums recoverable under the order.

(7) Regulations made under this section may make different provision for different kinds of order

PART 5 OFFENCES UNDER DOMESTIC LAW

Introduction

Meaning of “genocide”, “crime against humanity” and “war crime”

54.—(1) In this Part—

“genocide” means an act of genocide as defined in article 6,

“crime against humanity” means a crime against humanity as defined in article 7, and

“war crime” means a war crime as defined in article 8.2.

(2) In interpreting and applying the provisions of those articles the court shall take into account any relevant Elements of Crimes adopted in accordance with article 9.

(3) The Elements of Crimes referred to in subsection (2), are set out in regulations made under section 50(3) of this Act as it applies in the United Kingdom.

(4) The articles referred to in subsection (1) shall for the purposes of this Part be construed subject to and in accordance with any relevant reservation or declaration made by the United Kingdom when ratifying any treaty or agreement relevant to the interpretation of those articles.

Whether such a reservation or declaration has been made and the terms in which it was made, and whether such a reservation or declaration has been withdrawn (in whole or in part), shall be certified by Her Majesty by Order in Council made under section 50(4) of this Act as it applies in the United Kingdom.

(5) In interpreting and applying the provisions of the articles referred to in subsection (1) the court shall take into account any relevant judgment or decision of the ICC.

Account may also be taken of any other relevant international jurisprudence.

(6) The relevant provisions of the articles of the ICC Statute referred to this section are set out in Schedule 8 to this Act.

No account shall be taken for the purposes of this Part of any provision of those articles omitted from the text set out in that Schedule.

Genocide, crimes against humanity and war crimes

55.—(1) It is an offence against the law of the Territory for a person to commit genocide, a crime against humanity or a war crime.

(2) This section applies to acts committed—

(a) in the Territory, or

(b) outside the Territory by a United Kingdom national, a Territory resident or a person subject to Territory service jurisdiction.

Conduct ancillary to genocide, etc. committed outside jurisdiction

56.—(1) It is an offence against the law of the Territory for a person to engage in conduct ancillary to an act to which this section applies.

(2) This section applies to an act that if committed in the Territory would constitute—

(a) an offence under section 51 (genocide, crime against humanity or war crime), or

(b) an offence under this section,

but which, being committed (or intended to be committed) outside the Territory, does not constitute such an offence.

(3) The reference in subsection (1) to conduct ancillary to such an act is to conduct that would constitute an ancillary offence in relation to that act if the act were committed in the Territory.

(4) This section applies where the conduct in question consists of or includes an act committed—

(a) in the Territory, or

(b) outside the Territory by a United Kingdom national, a Territory resident or a person subject to Territory service jurisdiction.

Trial and punishment of main offences

57.—(1) The following provisions apply in relation to—

(a) offences under section 51 (genocide, crimes against humanity and war crimes),

(b) offences under section 52 (conduct ancillary to genocide, etc. committed outside jurisdiction), and

(c) offences ancillary to an offence within paragraph (a) or (b) above.

(2) The offence is triable only on indictment.

(3) Proceedings for an offence shall not be instituted except by or with the consent of the Attorney General.

(4) If the Offence is not committed in the Territory—

(a) proceedings may be taken, and

(b) the offence may for incidental purposes be treated as having been committed,

in any place in the Territory.

(5) A person convicted of—

(a) an offence involving murder, or

(b) an offence ancillary to an offence involving murder,

shall be dealt with as for an offence of murder or, as the case may be, the corresponding ancillary offence in relation to murder.

In this subsection “murder” means the killing of a person in such circumstances as would, if committed in the Territory, constitute murder.

(6) In any case a person convicted of an offence is liable to imprisonment for a term not exceeding 30 years.

Offences in relation to the ICC

58.—(1) A person intentionally committing any of the acts mentioned in article 70.1 (offences against the administration of justice in relation to the ICC) may be dealt with as for the corresponding domestic offence committed in relation to a superior court in the Territory.

(2) In interpreting and applying the provisions of article 70.1 the court shall take into account any relevant judgment or decision of the ICC.

Account may also be taken of any other relevant international jurisprudence.

(3) The corresponding domestic offences are—

(a) in relation to article 70.1(a) (giving false testimony when under an obligation to tell the truth), an offence of perjury, however described, under the law of the Territory;

(b) in relation to article 70.1(c) (interference with witness or evidence), an offence under the law of the Territory of interfering with a witness or evidence;

(c) in relation to article 70.1(b) or (d) to (f) (other offences), an offence at common law, or under any provision of the law of the Territory, in respect of any of those matters.

(4) This section and, so far as may be necessary for the purposes of this section, the enactments and rules of law relating to the corresponding domestic offences apply to acts committed—

(a) in the Territory, or

(b) outside the Territory by a United Kingdom national, a Territory resident or a person subject to Territory service jurisdiction.

(5) Proceedings for an offence under this section, or for an offence ancillary to such an offence, shall not be instituted except by or with the consent of the Attorney General.

(6) If an offence under this section, or an offence ancillary to such an offence, is not committed in the Territory—

(a) proceedings may be taken, and

(b) the offence may for incidental purposes be treated as having been committed,

in any place in the Territory.

(7) The relevant provisions of article 70.1 are set out in Schedule 9 to this Act.

Meaning of “ancillary offence”

59.—(1) References in this Part to an ancillary offence under the law of the Territory are to—

(a) aiding, abetting, counselling or procuring the commission of an offence,

(b) inciting a person to commit an offence,

(c) attempting or conspiring to commit an offence, or

(d) assisting an offender or concealing the commission of an offence.

(2) In subsection (1)(a) the reference to aiding, abetting, counselling or procuring is to such conduct, however expressed, that in relation to an indictable offence would be punishable under the law of the Territory, whether under any provision of that law or at common law.

(3) In subsection (1)(b) the reference to incitement is to conduct amounting to an offence of incitement, however expressed, under the law of the Territory, whether under any provision of that law or at common law.

(4) In subsection (1)(c)—

(a) the reference to an attempt is to conduct amounting to an offence of attempt, however expressed, under the law of the Territory, whether under any provision of that law or at common law; and

(b) the reference to conspiracy is to conduct amounting to an offence of conspiracy, however expressed, under the law of the Territory, whether under any provision of that law or at common law.

(5) In subsection (1)(d)—

(a) the reference to assisting an offender is to such conduct that would amount to an offence under the law of the Territory, whether under any provision of that law or at common law; and

(b) the reference to concealing an offence is to such conduct that would amount to an offence under the law of the Territory, whether under any provision of that law or at common law.

Saving for general principles of liability, etc

60.—(1) In determining whether an offence under this Part has been committed the court shall apply the principles of the law of the Territory.

(2) Nothing in this Part shall be read as restricting the operation of any enactment or rule of law relating to—

(a) the extra-territorial application of offences (including offences under this Part), or

(b) offences ancillary to offences under this Part (wherever committed).

Protection of victims and witnesses

61.—(1) Any provisions of the law of the Territory of a description specified below (which make provision for the protection of victims and witnesses of certain offences) have effect—

(a) as if any reference in those provisions to a specific substantive offence included an offence under section 51 involving conduct constituting that offence; and

(b) as if any reference in those provisions to a specific ancillary offence included—

(i) that ancillary offence in relation to an offence under section 51 involving conduct constituting the substantive offence in question, and

(ii) an offence under section 52 involving conduct constituting that ancillary offence in relation to an act to which that section applies involving conduct constituting the substantive offence in question.

(2) The provisions are—

(a) provisions for the protection of victims of sexual offences;

(b) provisions for the protection of witnesses and complainants; and

(c) provisions in relation to proceedings for sexual offences imposing restrictions on access by defendants and others to material disclosed in connection with such proceedings.

(3) In subsection (1) above—

(a) “substantive offence” means an offence other than an ancillary offence; and

(b) the reference to conduct constituting an offence is to conduct that would constitute that offence if committed in the Territory.

62.  Omitted

63.  Omitted

64.  Omitted

65.  Omitted

66.  Omitted

67.  Omitted

68.  Omitted

Supplementary provisions

Responsibility of commanders and other superiors

69.—(1) This section applies in relation to—

(a) offences under this Part, and

(b) offences ancillary to such offences.

(2) A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or (as the case may be) his effective authority and control, as a result of his failure to exercise control properly over such forces where—

(a) he either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences, and

(b) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is responsible for offences committed by subordinates under his effective authority and control, as a result of his failure to exercise control properly over such subordinates where—

(a) he either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such offences,

(b) the offences concerned activities that were within his effective responsibility and control, and

(c) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(4) A person responsible under this section for an offence is regarded as aiding, abetting, counselling or procuring the commission of the offence.

(5) In interpreting and applying the provisions of this section (which corresponds to article 28) the court shall take into account any relevant judgment or decision of the ICC.

Account may also be taken of any other relevant international jurisprudence.

(6) Nothing in this section shall be read as restricting or excluding—

(a) any liability of the commander or superior apart from this section, or

(b) the liability of persons other than the commander or superior.

Mental element

70.—(1) References in this Part to a person committing—

(a) genocide,

(b) a crime against humanity,

(c) a war crime, or

(d) any of the acts mentioned in article 70.1 (offences against the administration of justice in relation to the ICC),

shall be construed in accordance with this section.

(2) Unless otherwise provided by—

(a) the articles mentioned in the definition in section 50(1) of the crimes specified in subsection (1)(a) to (c) above, or any relevant Elements of Crimes (see section 50(2)),

(b) section 54(1) or article 70.1 (offences in relation to the ICC), or

(c) section 65 (responsibility of commanders and other superiors),

a person is regarded as committing such an act or crime only if the material elements are committed with intent and knowledge.

(3) For this purpose—

(a) a person has intent—

(i) in relation to conduct, where he means to engage in the conduct, and

(ii) in relation to a consequence, where he means to cause the consequence or is aware that it will occur in the ordinary course of events; and

(b) “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.

(4) In interpreting and applying the provisions of this section (which corresponds to article 30) the court shall take into account any relevant judgment or decision of the ICC.

Account may also be taken of any other relevant international jurisprudence.

Meaning of “UK national”, Territory resident” and “person subject to Territory service jurisdiction”

71.—(1) In this Part a “United Kingdom national” means an individual who is a British citizen, a British Dependent Territories citizen, a British National (Overseas), a British Overseas Citizen, a British subject or a British protected person.

(2) In this Part a “Territory resident” means a person who is resident in the Territory.

(3) In this Part a “person subject to Territory service jurisdiction” means—

(a) a member of any military or air force raised under the law of the Territory, or force raised for the naval defence of the Territory; or

(b) a person who by reason of his connection with such a member or force may be proceeded against for an offence in like manner as a person mentioned in paragraph (a).

Proceedings against persons becoming resident within the jurisdiction

72.—(1) This section applies in relation to a person who commits acts outside the Territory at a time when he is not a United Kingdom national, a Territory resident or a person subject to Territory service jurisdiction and who subsequently becomes resident in the Territory.

(2) Proceedings may be brought against such a person in the Territory for a substantive offence under this Part if—

(a) he is resident in the Territory at the time the proceedings are brought, and

(b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in the Territory.

(3) Proceedings may be brought against such a person in the Territory for an offence ancillary to a substantive offence under this Part (or what would be such a substantive offence if committed in the Territory) if—

(a) he is resident in the Territory at the time the proceedings are brought, and

(b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in the Territory.

(4) In this section a “substantive offence” means an offence other than an ancillary offence.

(5) Nothing in this section shall be read as restricting the operation of any other provisions of this Part.

References to acts to include omissions, etc

73.—(1) In this part “act”, except where the context otherwise requires, includes an omission, and references to conduct have a corresponding meaning.

74.  Omitted

75.  Omitted

76.  Omitted

77.  Omitted

78.  Omitted

PART 6 GENERAL PROVISIONS

Interpretation

Meaning of “national court”

79.  In this Act “national court” means a court in the Territory.

Meaning of “British aircraft”, “British hovercraft” and “British ship”

80.—(1) In this Act, references to “British aircraft”, “British hovercraft” and “British ship” are to an aircraft, hovercraft or, as the case may be, ship which is registered in the Territory or which is one of Her Majesty’s aircraft, hovercraft or ships.

(2) References in subsection (1) to Her Majesty’s aircraft, hovercraft or ships are to the aircraft, hovercraft or, as the case may be, ships which belong to, or are exclusively employed in the service of, Her Majesty in right of the Government of the United Kingdom or registered in the Territory in the service of the Government of the Territory.

Application of provisions in relation to other International Tribunals

81.—(1) Section 23 (provisions as to state or diplomatic immunity) applies in relation to proceedings in other international tribunals as it applies in relation to proceedings under Part 2 of this Act, with the following adaptations.

(2) The adaptations are—

(a) in subsection (1) omit the words “by reason of a connection with a state party to the ICC Statute”;

(b) omit subsections (2) and (3)

(c) in subsection (4)—

(i) for the reference to the ICC substitute a reference to the relevant international tribunal, and

(ii) omit the words “or (2)”.

(3) Omitted

(4) Omitted

Crown application

82.  This Act binds the Crown and applies to persons in the public service of the Crown, and property held for the purposes of the public service of the Crown, as it applies to other persons and property.

83.  Omitted

84.  Omitted

Final provisions

Index of defined expressions

85.  In this Act the expressions listed below are defined or otherwise explained by the provisions indicated—

act and conduct (in Part 5)	section 69
ancillary offence (in Part 5)	section 55
appropriate judicial officer (in Part 2)	section 26
article	section 1(2)
British aircraft, British hovercraft and British ship	section 76
competent court (in Part 2)	section 26
crime against humanity (in Part 5)	section 50(1)
delivery order (in Part 2)	section 5(3)
genocide (in Part 5)	section 50(1)
the ICC	section 1(1)
ICC crime	section 1(1)
the ICC Statute	section 1(1)
national court	section 75
provisional warrant (in Part 2)	section 3(5)
remand (in Part 2)	section 16
section 2 warrant (in Part 2)	section 2(5)
United Kingdom national (in Part 5)	section 67(1)
war crime (in Part 5)	section 50(1)

86.  Omitted

87.  Omitted

88.  Omitted