International Criminal Court Act 2001

Part 1 — The International Criminal Court

Protection of victims and witnesses

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• (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

Provisions relating to early release or release on licence

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• (1) Where the Secretary of State 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) If it appears to the Secretary of State that the request should be considered by an appropriate judicial officer in Scotland, he shall transmit the request and the documents accompanying it to the Scottish Ministers who shall transmit them to an appropriate judicial officer.

• (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 United Kingdom.

• (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

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• (1) This section applies where the Secretary of State 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 Secretary of State that application for a warrant should be made in England and Wales—

• (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 United Kingdom,

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

• (3) If it appears to the Secretary of State that application for a warrant should be made in Scotland—

• (a) he shall transmit the request to the Scottish Ministers who shall instruct the procurator fiscal to apply for a warrant for the arrest of that person, and

• (b) on the application by the procurator fiscal, which shall state—

• (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, Scotland,

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

• (4) Where an appropriate judicial officer issues a warrant under this section, he shall notify the Secretary of State and, where the proceedings are in Scotland, the Scottish Ministers that he has done so.

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

Dealing with person arrested under provisional warrant

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• (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) Provision shall be made by Order in Council under paragraph 3 of Schedule 1 (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,

having regard to the time limits specified in Rules of Evidence and Procedure for the purposes of article 92.3.

• (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

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

• (2) If the competent court 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,

it shall make a delivery order.

• (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 Secretary of State.

• (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 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 court shall apply the principles which would be applied on an application for judicial review.

• (8) If the 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 or declarator to that effect, but may not grant any other relief.

• (9) The court shall notify the Secretary of State (and, where the proceedings are in Scotland, the Scottish Ministers) of any declaration or declarator under subsection (8) and the Secretary of State shall transmit that notification to the ICC.

Supplementary provisions as to proceedings before competent court

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• (1) The following provisions apply in relation to proceedings before a competent court under section 5.

• (2) In the case of proceedings in England and Wales—

• (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 Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

• (d) section 16(1)(c) of the Prosecution of Offences Act 1985 (c. 23) (defence costs on dismissal of proceedings) applies, reading the reference to the dismissal of the information as a reference to the discharge of the person arrested.

• (3) In the case of proceedings in Scotland—

• (a) the court has the like powers, including power to adjourn the case and meanwhile to remand the person whose surrender is sought, and the proceedings shall be conducted as nearly as may be in the like manner, as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by that person;

• (b) the provisions of the Legal Aid (Scotland) Act 1986 (c. 47) relating to such proceedings, or any appeal proceedings following thereon, apply to that person.

Consent to surrender

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• (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 justice of the peace or, in Scotland, a sheriff.

The “prescribed form” means that prescribed by Criminal Procedure Rules or, in Scotland, by the High Court of Justiciary by Act of Adjournal.

• (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 England and Wales, 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.

Proceedings where court refuses delivery order

Procedure where court refuses order

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• (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 Secretary of State and, in the case of proceedings in Scotland, the Scottish Ministers 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 or 10, 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: England and Wales

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• (1) If a competent court in England and Wales refuses to make a delivery order, the Secretary of State may appeal against the decision to the High Court.

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

• (2) If the High 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 High Court.

• (3) If the High Court dismisses the appeal, the Secretary of State may, with the permission of the High Court or theSupreme Court, appeal to the Supreme Court.

In relation to a decision of the High Court on an appeal under this section, section 1 of the Administration of Justice Act 1960 (c. 65) (appeals to the Supreme Court) applies with the omission of so much of subsection (2) of that section as restricts the grant of leave to appeal.

• (4) The Supreme Court may exercise any of the powers conferred on the High Court by subsection (2) above.

• (5) Where a delivery order is made by the High Court or the Supreme Court, 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 England and Wales which makes a delivery order.

• (6) An order for the remand of the arrested person which continues in force under section 8(2) shall cease to have effect if the High Court dismisses the appeal and the Secretary of State does not without delay—

• (a) apply for permission to appeal to the Supreme Court, or

• (b) inform the High 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 Secretary of State can take.

Appeal against refusal of delivery order: Scotland

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• (1) If a competent court in Scotland refuses to make a delivery order, the procurator fiscal may appeal against the decision to the High Court of Justiciary by note of appeal.

• (2) If the High Court of Justiciary 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 High Court of Justiciary.

• (3) Where a delivery order is made by the High Court of Justiciary, 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 Scotland which makes a delivery order.

• (4) An order for the remand of the arrested person which continues in force under section 8(2) shall cease to have effect if the High Court of Justiciary dismisses the appeal.

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 procurator fiscal can take.

• (5) In relation to an appeal under this section the High Court of Justiciary may make an order providing for the detention of the person to whom it relates or may grant bail.

• (6) Section 177(2) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (disposal of the application for bail) applies for the purposes of such an appeal as it applies for the purposes of an appeal such as is mentioned in section 176 of that Act.

Proceedings where court makes delivery order

Procedure where court makes order

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• (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 Secretary of State’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 Secretary of State and, in the case of proceedings in Scotland, the Scottish Ministers 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

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• (1) The Secretary of State 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”).