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

Accordingly, a prisoner to whom such an order relates and whose sentence has not expired shall be transferred in custody to the place where he is liable to be detained under the sentence to which he is subject.

• (3) Where in pursuance of Part 2 of this Act a delivery order is made in respect of a person who is a prisoner, the order may include provision authorising the return of the prisoner into the custody of the Governor—

• (a) in accordance with arrangements made by the Governor with the ICC, or

• (b) in the case of a prisoner taken to a place where he is to undergo imprisonment under a sentence of the ICC, in accordance with arrangements made by the Governor with the state where that place is situated,

and for his transfer in custody to the place where he is liable to be detained under the sentence of the national court to which he is subject.

• (4) Omitted

• (5) In this paragraph “prisoner” means a person serving a sentence of detention or imprisonment (including a sentence imposed by a service court).

Power to suspend or revoke other orders

6

• (1) This paragraph applies where a court makes a delivery order in respect of a person in respect of whom an order (other than a sentence of imprisonment or detention) has been made in criminal proceedings before a national court.

• (2) The court may make any order necessary to enable the delivery order to be executed, and may in particular suspend or revoke any such order as is mentioned in sub-paragraph (1).

PART 2 — EXTRADITION PROCEEDINGS

7

• (1) In this Part of this Schedule “extradition proceedings” means proceedings before a court in the Territory under—

• (a) the Extradition Act 1989 or under that Act as extended to the Territory by the Extradition (Overseas Territories) Order 2002, or

• (b) any other provisions in force in the Territory for the surrender of a fugitive offender to another country or territory,

apart from proceedings to which Part 3 of this Schedule applies.

8

• (1) Where—

• (a) the Governor receives a request from the ICC for the arrest and surrender, or provisional arrest, of a person, and

• (b) extradition proceedings against that person are pending or in progress before a court in the Territory,

the Governor shall inform the court of the request.

• (2) The court shall (if necessary) adjourn the proceedings before it, for such period or periods as it thinks fit, so as to enable proceedings to be taken to determine whether a delivery order should be made.

• (3) If a delivery order is made and the extradition proceedings are still pending or in progress, the Governor—

• (a) shall consult the ICC before giving directions for the execution of the order, and

• (b) may direct that the extradition proceedings shall be discontinued.

• (4) Where the Governor directs that extradition proceedings shall be discontinued, the court before which the proceedings are pending or in progress shall—

• (a) order their discontinuance, and

• (b) make any other order necessary to enable the delivery order to be executed (including any necessary order as to the custody of the person concerned).

• (5) The discontinuance under this paragraph of extradition proceedings in respect of an offence does not prevent the institution of fresh extradition proceedings in respect of the offence.

9

Omitted

Power to suspend or revoke warrant or order

10

• (1) Where a court in the Territory makes a delivery order in respect of a person who has been committed for surrender or ordered to be delivered up in extradition proceedings in the Territory, the court may make any such order as is necessary to enable the delivery order to be executed.

• (2) The court may, in particular, suspend or revoke any warrant or other order made by a court or judicial officer in respect of the person.

PART 3 — OTHER DELIVERY PROCEEDINGS

Meaning of “other delivery proceedings”

11

In this Part of this Schedule “other delivery proceedings” means proceedings before a court in the Territory for an order for the delivery of a person in pursuance of proceedings before an international tribunal other than the ICC, and “the relevant International Tribunal”, in relation to such proceedings, means the international tribunal in which the proceedings are instituted.

Delivery proceedings in the Territory

12

• (1) Where—

• (a) the Governor receives a request from the ICC for the arrest and surrender, or provisional arrest, of a person, and

• (b) other delivery proceedings against that person are pending or in progress before a court in the Territory,

the Governor shall consult the ICC and the relevant International Tribunal.

• (2) The Governor shall inform the court of the request and of the outcome of the consultations.

• (3) The court shall (if necessary) adjourn the proceedings before it, for such period or periods as it thinks fit, so as to enable proceedings to be taken to determine whether a delivery order should be made under this Part of this Act.

• (4) If a delivery order is made under this Part of this Act and the other delivery proceedings are still pending or in progress, the Governor—

• (a) shall consult the ICC before giving directions for the execution of the order, and

• (b) may direct that the other delivery proceedings shall be discontinued.

• (5) Where the Governor directs that the other delivery proceedings shall be discontinued, the court before which the proceedings are pending or in progress shall—

• (a) order their discontinuance, and

• (b) make any other order necessary to enable the delivery order under this Part of this Act to be executed (including any necessary order as to the custody of the person concerned).

• (6) The discontinuance under this paragraph of other delivery proceedings in respect of an offence does not prevent the institution of fresh proceedings for a delivery order in respect of the offence.

13

Omitted.

Power to suspend or revoke previous delivery order

14

• (1) Where a court makes a delivery order under this Part of this Act in respect of a person in respect of whom a delivery order has been made in pursuance of other delivery proceedings the court may make any order necessary to enable the person to be delivered up under this Part of this Act.

• (2) The court may, in particular, suspend or revoke the other delivery order.

15

In this Part of this Schedule references to a court include references to a judge.

SCHEDULE 3 — RIGHTS OF PERSONS DURING INVESTIGATION: Article 55

ARTICLE 55 — RIGHTS OF PERSONS DURING AN INVESTIGATION

1

In respect of an investigation under this Statute, a person:

• (a) Shall not be compelled to incriminate himself or herself or to confess guilt;

• (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;

• (c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and

• (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.

2

Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:

• (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;

• (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;

• (c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and

• (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

SCHEDULE 4 — TAKING OF FINGERPRINTS OR NON-INTIMATE SAMPLES

Nomination of court to supervise taking of evidence

1

• (1) Where the Governor receives a request from the ICC for assistance in obtaining evidence as to the identity of a person, he may nominate a court in the Territory to supervise the taking of the person’s fingerprints or a non-intimate sample (or both).

• (2) He shall not do so unless—

• (a) he is satisfied that other means of identification have been tried and have provided inconclusive, and

• (b) he has notified the ICC of that fact and the ICC has signified that it wishes to proceed with the request.

Order to provide evidence

2

• (1) The nominated court may order the taking by a constable of the person’s fingerprints or a non-intimate sample (or both).

• (2) In the case of a non-intimate sample, the law of the Territory applies—

• (a) as to whether the sample is a sufficient sample, and

• (b) as to the manner of taking the sample,

as it applies to the investigation of a serious offence under the law of the Territory.

• (3) In the following provisions of this Schedule “the necessary identification evidence” means the fingerprints or sample (or both) required by the order of the nominated court.

Requirement to attend and provide evidence

3

• (1) The order of the nominated court may require the person to attend a police station to provide the necessary identification evidence.

• (2) Any such requirement—

• (a) shall give the person at least seven days within which he must so attend, and

• (b) may direct him to attend at a specified time of day or between specified times of day.

• (3) If the person fails to attend in accordance with the order—

• (a) the nominated court may issue a warrant for his arrest, and

• (b) the person may be detained for such period as is necessary to enable the necessary identification evidence to be taken.

The court shall inform the person concerned of the effect of this sub-paragraph.

• (4) Sub-paragraphs (1) to (3) do not apply where the person concerned is in prison or is otherwise lawfully detained.

In that case the necessary identification evidence may be taken at the place where he is detained or at such other place as the nominated court may direct.

Consent to taking of evidence

4

• (1) The necessary identification evidence may be taken—

• (a) with the appropriate consent given in writing, or

• (b) without that consent, in accordance with paragraph 5.

• (2) In sub-paragraph (1) “the appropriate consent” means the consent of the person concerned or, where the law of the Territory provides for consent to be given on that person’s behalf by some other person, the consent of that other person.

• (3) The court shall inform the person concerned of the effect of this paragraph.

Taking of evidence without consent

5

• (1) A constable may be authorised by a superior officer to take the necessary identification evidence without consent.

• (2) An officer may given an authorisation under sub-paragraph (1) orally or in writing, but if he gives it orally he shall confirm it in writing as soon as is reasonably practicable.

• (3) Before fingerprints or a sample are taken from a person upon an authorisation given under sub-paragraph (1), he shall be informed that the authorisation has been given.

Record of certain matters to be made

6

• (1) After fingerprints or a sample are taken under this Schedule, there shall be recorded as soon as is reasonably practicable any of the following which apply—

• (a) the fact that the appropriate consent has been given,

• (b) any authorisation given under paragraph 5(1), and

• (c) the fact that the person has been informed under paragraph 5(3) of the giving of such authorisation.

• (2) A copy of the record shall be sent to the Governor for transmission to the ICC together with the material obtained under this Schedule.

Checking of fingerprints or samples

7

• (1) This paragraph applies to—

• (a) fingerprints or samples taken under this Schedule, and

• (b) information derived from such samples.

• (2) The fingerprints, samples or information may be used only for the purpose of an investigation into a relevant offence.

• (3) In particular, a check may not be made against them under any law of the Territory providing for the checking of fingerprints and samples except for the purpose of an investigation into a relevant offence.

• (4) The fingerprints, samples or information may be checked, subject to sub-paragraph (2), against—

• (a) other fingerprints or samples taken under this Schedule or information derived from such samples, and

• (b) any of the fingerprints, samples and information against which checking is permitted for the purposes of the investigation of an offence under the law of the Territory.

• (5) For the purposes of this paragraph a “relevant offence” means an ICC crime or an offence under Part 5 of this Act.

• (6) Before fingerprints or a sample are taken from a person under this Schedule, he shall be informed that they may be used as mentioned in this paragraph.

Destruction of fingerprints and samples

8

The law of the Territory as to the retention and destruction of fingerprints or samples applies to fingerprints and samples taken under this Schedule in connection with the investigation of an ICC crime as it applies in relation to fingerprints and samples taken in connection with the investigation of an offence under the law of the Territory.

SCHEDULE 5 — INVESTIGATION OF PROCEEDS OF ICC CRIME

PART 1 — PRODUCTION OR ACCESS ORDERS

Application for order

1

• (1) An order under this Part of this Schedule may be made by a judge of the Supreme Court on an application made in pursuance of a direction by the Governor under section 37(1) (investigation of proceeds of ICC crime).

• (2) Any such application in the Territory may be made without notice and may be granted without a hearing.

Grounds for making order

2

• (1) The judge may make an order under this Part of this Schedule if he is satisfied that there are reasonable grounds for suspecting—

• (a) that a specified person has benefited from an ICC crime, and

• (b) that the material to which the application relates is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made.

• (2) No such order shall be made if it appears to the judge that the material to which the application relates consists of or includes items subject to legal privilege.

• (3) Paragraphs 3 and 4 specify the descriptions of order that may be made.

Production or access orders: standard orders

3

• (1) The judge may order a specified person who appears to have in his possession, custody or power specified material, or material of a specified description, to which the application relates, either—

• (a) to produce the material to a constable within a specified period for the constable to take away (a “production order”), or

• (b) to give a constable access to the material within a specified period (an “access order”).

• (2) The specified period shall be seven days beginning with the date of the order unless it appears to the judge making the order that a longer or shorter period would be appropriate in the particular circumstances of the application.

• (3) Where the judge makes an access order in relation to material on any premises he may, on the application of a constable, order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.

• (4) In this paragraph “specified” means specified in the order.

• (5) Where a production or access order is made by virtue of paragraph 4 (special orders), the provisions of this paragraph have effect subject to the modifications specified in that paragraph.

Production or access orders: special orders

4

• (1) A production or access order may be made in relation to a person who the judge thinks is likely to have material to which the application relates in his possession, custody or power within the period of 28 days beginning with the date of the order.

• (2) A production or access order may also be made in relation to material consisting of or including material which is expected to come into existence within that period.

In that case it must specify a person within sub-paragraph (1).

• (3) Where a production or access order is made by virtue of this paragraph—

• (a) the order shall require the specified person to notify a named constable as soon as is reasonably practicable after any material to which the application relates comes into his possession, custody or power, and

• (b) paragraph 3 has effect with the following modifications.

• (4) The modifications are—

• (a) that the references in paragraph 3(1) to material which the specified person has in his possession, custody or power shall be read as references to the material that comes into his possession, custody or power, and

• (b) that the reference in paragraph 3(2) to the date of the order shall be read as a reference to the date of the notification required by sub-paragraph (3)(a) above.

• (5) In this paragraph “specified” means specified in the order.

Effect of order: general

5

• (1) An order under this Part of this Schedule has effect as if it were an order of the Supreme Court.

• (2) Provision may be made by rules of court as to—

• (a) the discharge and variation of such orders, and

• (b) proceedings relating to such orders,

and in this sub-paragraph “rules of court” means rules made for the purposes of this Part by an appropriate rule-making authority in the Territory.

Effect of order: supplementary

6

• (1) The following provisions have effect with respect to the effect of an order under this Part of this Schedule.

• (2) Where the material to which the order relates consists of information contained in a computer—

• (a) a production order has effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible, and

• (b) an access order has effect as an order to give access to the material in a form in which it is visible and legible.

• (3) An order under this Part of this Schedule does not confer any right to production of, or access to, items subject to legal privilege.

• (4) Subject to sub-paragraph (3), the order has effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.

• (5) For the purposes of any provisions of the law of the Territory relating to access to, and the copying and retention of, seized material in the investigation of serious offences, material produced in pursuance of an order under this Part of this Schedule shall be treated as if it were material seized by a constable in connection with the investigation of a serious offence under the law of the Territory.

Order in relation to material in possession of government department

7

• (1) An order under this Part of this Schedule may be made in relation to material in the possession, custody or power of a government department.

• (2) An order so made—

• (a) shall be served as if the proceedings were civil proceedings against the department, and

• (b) may require any officer of the department, whether named in the order or not, who may for the time being have in his possession, custody or power the material concerned, to comply with it.

• (3) In this paragraph “government department” means a department of the government of the Territory for the purposes of any law relating to proceedings against the Crown.

PART 2 — SEARCH WARRANTS

Application for warrant

8

• (1) A search warrant may be issued under this Part of this Schedule by a competent court of the Territory on an application made in pursuance of a direction by the Governor under section 37(1) (investigation of proceeds of ICC crime).

• (2) For the purposes of this Part a competent court is a court or other judicial authority having power under the law of the Territory to issue a search warrant in a case of serious crime.

Effect warrant

9

• (1) A search warrant issued under this Part of this Schedule authorises any constable—

• (a) to enter and search the premises specified in the warrant, and

• (b) to seize and retain any material found on the search that is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the warrant was issued.

• (2) The warrant does not confer any right to seize material that consists of or includes items subject to legal privilege.

Grounds for issue of warrant

10

• (1) The court may issue a search warrant under this Part of this Schedule in the following cases.

• (2) The first case is where the court is satisfied that a production or access order made in relation to material on the premises has not been complied with.

• (3) The second case is where the court is satisfied—

• (a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime,

• (b) that there are grounds for making a production or access order (see paragraph 2) in relation to material on the premises, and

• (c) that it would not be appropriate to make a production or access order in relation to the material for any of the following reasons.

• (4) Those reasons are—

• (a) that it is not practicable to communicate with any person entitled to produce the material,

• (b) that it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated, or

• (c) that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.

• (5) The third case is where the court is satisfied—

• (a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime,

• (b) that there are reasonable grounds for suspecting that there is material on the premises which cannot be particularised at the time of the application but which—

• (i) relates to the specified person, or to the question whether that person has benefited from an ICC crime, or to any question as to the extent or whereabouts of the proceeds of an ICC crime, and

• (ii) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made, and

• (c) that any of the following circumstances apply.

• (6) Those circumstances are—

• (a) that it is not practicable to communicate with any person entitled to grant entry to the premises,

• (b) that entry to the premises will not be granted unless a warrant is produced, or

• (c) that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.

PART 3 — SUPPLEMENTARY PROVISIONS

11

In this Schedule—

• “constable” includes a customs officer, and

• “items subject to legal privilege” and “premises” shall be construed as they would be for the purposes of the law of the Territory relating to a constable’s powers of search and seizure in the investigation of an offence.

SCHEDULE 6 — SUPPLEMENTARY PROVISIONS

Application for freezing order

1

• (1) A freezing order may be made by the Supreme Court on an application in pursuance of a direction given by the Governor under section 38, and any such application may be made without notice and may be granted without a hearing.

• (2) Omitted

Grounds for making order

2

The Court may make a freezing order if it is satisfied—

• (a) that a forfeiture order has been made in proceedings before the ICC, or

• (b) that there are reasonable grounds for believing that a forfeiture order may be made in such proceedings,

and that the property to which the order relates consists of or includes property that is or may be affected by such a forfeiture order.

Effect of order

3

• (1) A “freezing order” is an order prohibiting any person from dealing with property specified in the order otherwise than in accordance with such conditions and exceptions as may be specified in the order.

• (2) A freezing order shall provide for notice to be given to persons affected by the order.

Variation or discharge of order

4

• (1) A freezing order may be varied or discharged in relation to any property on the application of any person affected by the order.

• (2) A freezing order shall be discharged on the conclusion of the ICC proceedings in relation to which the order was made.

Power to appoint receiver

5

• (1) The powers conferred by this paragraph may be exercised if a freezing order is in force.

• (2) The Supreme Court may at any time appoint a receiver—

• (a) to take possession of any property specified in the order, and

• (b) in accordance with the court’s directions, to manage or otherwise deal with the property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the Court.

• (3) The Supreme Court may require any person having possession of property in respect of which a receiver is appointed under this paragraph to give possession of it to the receiver.

• (4) The powers conferred on a receiver by this paragraph shall be exercised with a view to securing that the property specified in the order is available for satisfying the forfeiture order or, as the case may be, any forfeiture order that may be made in the ICC proceedings in relation to which the order was made.

• (5) A receiver appointed under this paragraph shall not be liable to any person in respect of any loss or damage resulting from any action taken by him which he believed on reasonable grounds that he was entitled to take, except in so far as the loss or damage is caused by his negligence.

Seizure to prevent removal from jurisdiction

6

• (1) Where a freezing order has been made, a constable may, for the purpose of preventing any property specified in the order from being removed from the Territory, seize the property.

• (2) Omitted.

• (3) Property seized under this paragraph shall be dealt with in accordance with the directions of the Supreme Court.

Registered land

7

• (1) The provisions of the law of the Territory relating to registered land apply—

• (a) in relation to freezing orders, as they apply in relation to orders affecting land made by the court for the purpose of enforcing judgments or recognisances; and

• (b) in relation to applications for freezing orders, as they apply in relation to other pending land actions.

• (2) The ICC shall be treated for the purposes of those provisions as a person interested in relation to any registered land to which a freezing order or an application for a freezing order relates.

8

Omitted.

Bankruptcy

9

• (1) Where a person is adjudged bankrupt in the Territory, property for the time being subject to a freezing order made before the order adjudging him bankrupt, and any proceeds of property realised by virtue of paragraph 5(2) for the time being in the hands of a receiver appointed under that paragraph, is excluded from the bankrupt’s estate for the purposes of the law of the Territory relating to bankruptcy.

• (2) Where a person has been adjudged bankrupt in the Territory, the powers conferred on a receiver appointed under paragraph 5 above shall not be exercised in relation to—

• (a) property for the time being comprised in the bankrupt’s estate for the purposes of the said law of the Territory;

• (b) property in respect of which his trustee in bankruptcy may (without the leave of the court) serve a notice under any law of the Territory for the purpose of making available as part of a bankrupt person’s estate after-acquired property and tools, clothes and other items exceeding the value of their reasonable replacement, and tenancies, and

• (c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under the law of the Territory in an order of the court discharging him from bankruptcy with respect to any income which may subsequently become due to him, or with respect to property devolving upon him, or acquired by him, after his discharge.

• (3) Nothing in the law of the Territory relating to bankruptcy shall be taken as restricting, or enabling the restriction of, the exercise of those powers.

• (4) Where, in the case of a debtor, an interim receiver stands appointed under any provision of that law and any property of the debtor is subject to a freezing order, the powers conferred on the receiver by virtue of any provision of that law do not apply to property for the time being subject to the freezing order.

• (5) In any case in which a petition in bankruptcy was presented, or a receiving order or an adjudication in bankruptcy was made, before the date on which the present law of the Territory relating to bankruptcy came into force, this paragraph shall have effect with the substitution of such references to the law in force before that date as may be necessary.

10

Omitted.

Winding up

11

• (1) Where an order for the winding up of a company has been made under the law of the Territory, or a resolution has been passed by a company for voluntary winding up under that law, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

• (a) property for the time being subject to a freezing order made before the relevant time, and

• (b) any proceeds of property realised by virtue of paragraph 5(2) for the time being in the hands of a receiver appointed under that paragraph.

• (2) Where such an order has been made or such a resolution has been passed, the powers conferred on a receiver appointed under paragraph 5 shall not be exercised in relation to any property held by the company in relation to which the functions of the liquidator are exercisable—

• (a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or

• (b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

• (3) Nothing in the law of the Territory relating to bankruptcy or the winding up of companies shall be taken as restricting, or enabling the restriction of, the exercise of those powers.

• (4) In this paragraph—

• “company” means any company which may be wound up under the law of the Territory; and

• “relevant time” means— where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up; where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution; and in any other case where such an order has been made, the time of the making of the order.

• (5) In any case in which the winding up of a company commenced or is treated as having commenced before the date on which the present law of the Territory relating to winding up came into force, this paragraph shall have effect with the substitution of such references to the law in force before that date as may be necessary.

12

Omitted.

Protection of insolvency practitioners

13

• (1) This paragraph applies where an insolvency practitioner seizes or disposes of property which is subject to a freezing order and—

• (a) he reasonably believes that he is entitled to do so in the exercise of his functions, and

• (b) he would be so entitled if the property were not subject to a freezing order.

• (2) The insolvency practitioner shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence.

• (3) The insolvency practitioner shall have a lien on the property seized or the proceeds of its sale—

• (a) for such of his expenses as were incurred in connection with the insolvency proceedings in relation to which the seizure or disposal purported to take place, and

• (b) for so much of his remuneration as may be reasonably assigned for his acting in connection with those proceedings.

• (4) Sub-paragraphs (1) to (3) are without prejudice to the generality of any provision contained in the law of the Territory relating to the expenses or remuneration of an insolvency practitioner.

• (5) In this paragraph “insolvency practitioner” means a person acting as such and, for the purposes of this paragraph, the question whether any person is acting as such shall be determined in accordance with sub-paragraphs (6), (7) and (8) except that the expression shall also include an Official Receiver (however styled) acting as receiver or manager of property.

• (6) For the purposes of this paragraph a person acts as an insolvency practitioner in relation to a company by acting—

• (a) as its liquidator, provisional liquidator, administrator or administrative receiver, or

• (b) as supervisor of a voluntary arrangement approved by it under the law for the time being in force in the Territory relating to the insolvency of companies.

• (7) For the purposes of this paragraph a person acts as an insolvency practitioner in relation to an individual by acting—

• (a) as his trustee in bankruptcy or interim receiver of his property, or

• (b) as trustee under a deed which is a deed of arrangement made for the benefit of his creditors, or

• (c) as supervisor of a voluntary arrangement proposed by him and approved under the law for the time being in force in the Territory relating to the insolvency of individuals, or

• (d) in the case of a deceased individual to whose estate the provisions of the law for the time being in force in the Territory relating to the administration of the insolvent estates of deceased persons apply, as administrator of that estate.

• (8) References in sub-paragraph (7) to an individual include, except in so far as the context otherwise requires, references to a partnership.

Interpretation

14

• (1) For the purposes of this Schedule—

• (a) “property” includes money and all other property, real or personal, heritable or moveable, and including things in action and other intangible or incorporeal property; and

• (b) “dealing with property” includes (without prejudice to the generality of that expression)—

• (i) where a debt is owed to a person, making a payment to any person in reduction of the amount of the debt, and

• (ii) removing the property from the Territory.

• (2) For the purposes of this Schedule ICC proceedings are concluded—

• (a) when there is no further possibility of a forfeiture order being made in the proceedings; or

• (b) on the satisfaction of a forfeiture order made in the proceedings (whether by the recovery of all the property liable to be recovered, or otherwise).

SCHEDULE 7

Omitted

SCHEDULE 8 — GENOCIDE, CRIMES AGAINST HUMANITY AND WAR CRIMES: ARTICLES 6 TO 9

ARTICLE 6 — GENOCIDE

For the purposes of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

• (c) Killing members of the group;

• (d) Causing serious bodily or mental harm to members of the group;

• (e) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

• (f) Imposing measures intended to prevent births within the group;

• (g) Forcibly transferring children of the group to another group.

ARTICLE 7 — CRIMES AGAINST HUMANITY

1

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

• (a) Murder;

• (b) Extermination;

• (c) Enslavement;

• (d) Deportation or forcible transfer of population;

• (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

• (f) Torture;

• (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

• (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

• (i) Enforced disappearance of persons;

• (j) The crime of apartheid;

• (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2

For the purpose of paragraph 1:

• (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

• (b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

• (c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

• (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

• (e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

• (f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law;

• (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

• (h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

• (i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3

For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.

ARTICLE 8 — WAR CRIMES

4

For the purpose of this Statute, “war crimes” means:

• (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

• (i) Wilful killing;

• (ii) Torture or inhuman treatment, including biological experiments;

• (iii) Wilfully causing great suffering, or serious injury to body or health;

• (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

• (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

• (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

• (vii) Unlawful deportation or transfer or unlawful confinement;

• (viii) Taking of hostages.

• (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

• (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

• (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

• (iii) Intentionally directing attacks personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

• (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

• (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

• (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

• (vii) Making improper use of a flag of truce, or of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

• (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

• (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

• (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

• (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;

• (xii) Declaring that no quarter will be given;

• (xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

• (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

• (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

• (xvi) Pillaging a town or place, even when taken by assault;

• (xvii) Employing poison or poisoned weapons;

• (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

• (xix) Employing bullets with expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

• (xx) Omitted.

• (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

• (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy as defined in article 7, paragraph 2(f), enforced sterilisation, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

• (xxiii) Utilising the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

• (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

• (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

• (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

• (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds detention or any other cause:

• (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

• (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

• (iii) Taking of hostages;

• (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable.

• (d) Paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

• (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

• (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

• (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

• (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

• (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

• (v) Pillaging a town or place, even when taken by assault;

• (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

• (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

• (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

• (ix) Killing or wounding treacherously a combatant adversary;

• (x) Declaring that no quarter will be given;

• (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

• (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.

• (f) Paragraph 2(e) applies to armed conflicts not of an international character and this does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups.

ARTICLE 9 — ELEMENTS OF CRIMES

5

Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

6

Amendments to the Elements of Crimes may be proposed by:

• (a) Any State Party;

• (b) The judges acting by an absolute majority;

• (c) The Prosecutor.

7

The Elements of Crimes and amendments thereto shall be consistent with this Statute.

SCHEDULE 9 — OFFENCES AGAINST THE ICC: ARTICLE 70

ARTICLE 70 — OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE

1

The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally:

• (a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1 to tell the truth;

• (b) Presenting evidence that the party knows is false or forged;

• (c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence;

• (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;

• (e) Retaliating against an official of the Court on account of duties performed by that or another official;

• (f) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties.

• (2) NOTE: Article 69.1, referred to in article 70.1(a), provides as follows:

• (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals;

(1) Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness

ANNEX 2 — TERRITORIES TO WHICH THIS ORDER EXTENDS

• Anguilla

• Bermuda

• Cayman Islands

• Falkland Islands

• Montserrat

• Pitcairn, Henderson, Ducie and Oeno Islands

• St Helena and its Dependencies

• Sovereign Base Areas of Akrotiri and Dhekelia

• Turks and Caicos Islands

• Virgin Islands

ANNEX 3 — FURTHER EXCEPTIONS, ADAPTIONS AND MODIFICATIONS TO INTERNATIONAL CRIMINAL COURT ACT 2001 IN RESPECT OF CERTAIN TERRITORIES

(A) ANGUILLA

2

In the application of sections 7(5)(a) and 13(5)(a) in Anguilla, the reference to “prison governor” shall be deleted and replaced with “Superintendent of Prisons”.

3

In the application of section 26 in Anguilla, the reference to “competent court” shall be read to refer to the Magistrates Court.

4

In the application of section 76(1) in Anguilla, the words “which is registered in the Territory or” shall be omitted.

(B) CAYMAN ISLANDS

5

In the application of sections 7(3) and 13(3) in the Cayman Islands, the reference to “the rule-making authority” in relation to the definition of “prescribed form” shall be replaced by a reference to “the Governor”.

6

In the application of sections 7(5)(a) and 13(5)(a) in the Cayman Islands, the reference to “prison governor” shall be deleted and replaced with “Director of Prisons”

7

In the application of section 26 in the Cayman Islands, the reference to “competent court” shall be read to refer to a court of summary jurisdiction.

8

In the application of section 76(1) in the Cayman Islands, the words “which is registered in the Territory or” shall be omitted.

(C) FALKLAND ISLANDS

9

In the application of sections 25(2) and 27(2) in the Falkland Islands, the reference to “facsimile transmission” shall also be read to include scanned and emailed documents, and the references to “originals of documents so transmitted” shall also be read to refer to the facsimile copy of the endorsed warrant which may serve as the original endorsed warrant within the Territory.

10

In the application of sections 7(5)(a) and 13(5)(a) in the Falkland Islands, the reference to “prison governor” shall be deleted and replaced with “the officer in charge of the prison”.

(D) MONTSERRAT

11

In the application of sections 7(5)(a) and 13(5)(a) in Montserrat, the reference to “prison governor” shall be deleted and replaced with “Superintendent of Prisons”.

12

In the application of section 26 in Montserrat, the reference to “competent court” shall be read to refer to the Magistrates Court.

13

Notwithstanding the provisions to the contrary in any other law in force in Montserrat, in the application of sections 25(2) and 27(2) in Montserrat, the reference to “facsimile transmission” shall also be read to include scanned and emailed documents, and the references to “originals of documents so transmitted” shall also be read to refer to the facsimile copy of the endorsed warrant which may serve as the original endorsed warrant within the Territory.

(E) PITCAIRN, HENDERSON, DUCIE AND OENO ISLANDS

14

In the application of section 9(3) in Pitcairn, Henderson, Ducie and Oeno Islands, the “normal appellate process” shall be deemed to include a right for the Governor to appeal to the Pitcairn Court of Appeal against any decision of the Supreme Court that dismisses an appeal from the refusal of a delivery order by a competent court. Such appeal shall be brought by notice in writing lodged with the Court of Appeal in such manner as may be directed by rules of Court (or if there are no such rules then in a form approved by the Registrar) within 28 days of delivery of the decision appealed against.

15

In the application of sections 25(2) and 27(2) in Pitcairn, Henderson, Ducie and Oeno Islands, the reference to “facsimile transmission” shall also be read to include scanned and emailed documents, and the references to “originals of documents so transmitted” shall also be read to refer to the facsimile copy of the endorsed warrant which may serve as the original endorsed warrant within the Territory.

(F) ST. HELENA AND DEPENDENCIES

16

In the application of sections 7(5)(a) and 13(5)(a) in St. Helena and Dependencies, the reference to “prison governor” shall be deleted and replaced with “Superintendent of Gaols”.

(G) SOVEREIGN BASE AREAS OF AKROTIRI AND DHEKELIA

17

In the application of section 6(2)(a) in the Sovereign Base Arreas of Akrotiri and Dhekelia the reference to “summary trial of an information against that person” shall be deleted and replaced with the following: “being tried before the Judge’s court”.

18

In the application of sections 7(5)(a) and 13(5)(a) in the Sovereign Base Areas of Akrotiri and Dhekelia, the reference to “prison governor” shall be deleted and replaced with “Superintendent of Prisons”.

19

In the application of section 53(2) in the Sovereign Base Areas of Akrotiri and Dhekelia, the reference to “triable only on indictment” shall be deleted and replaced with the following: “triable only on information before the Senior Judge’s court”.

20

In the application of paragraph 7 of Schedule 2 in the Sovereign Base Ares of Akrotiri and Dhekelia, the reference to a court shall, notwithstanding the final sentence of that paragraph, be read as applying to every court of the Sovereign Base Areas.

Signed

Judith Simpson — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order, made under the International Criminal Court Act 2001, extends provisions of the Act, with modifications, to the overseas territories specified in Annex 2. Certain provisions of the 2001 Act are omitted as they are not relevant to overseas territories or there is no intention that the provisions be applied there (for example, those relating to enforcement of sentences of imprisonment in Part 4 of the Act). This will enable the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, to be extended to the Overseas Territories listed in Annex 2 to this order. No Regulatory Impact Assessment has been produced in respect of this Order because it applies exclusively in the Overseas Territories concerned.

Footnotes