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

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.