International Criminal Court Bill [Lords]

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Mr. Crispin Blunt (Reigate): It is Mr. Prescott.

Mr. Howarth: Is it the Deputy Prime Minister?

Does the Minister envisage a circumstance in which the court convicted someone in absentia, perhaps a member of Her Majesty's armed forces, but there remained a belief in this country that the wrong person was being sought by the court? For example, the court might seek an airman who was responsible for a bombing, while we believed that someone higher up the line—perhaps an air marshall—would be the more appropriate person to seek. What would happen in such a circumstance?

Mr. Battle: I wonder whether the hon. Gentleman understood what the hon. Member for Chesham and Amersham (Mrs. Gillan) said. We are talking not about anyone being picked off the street, but about someone who has been convicted. The key point is that there will not be convictions in absentia by the ICC, so his example would not arise.

To accept the amendment and introduce a further test of the standard of information that should be produced would create a situation where the United Kingdom could potentially breach its international obligations. That would undermine our position. The amendment could introduce an additional barrier to the surrender of a fugitive who was a convicted war criminal. The hon. Lady may wish to apply the criminal standard of proof as to whether the person sought by the warrant is the one referred to in the judgment of the warrant, but we must be clear about what the processes and procedures will be in the context of arrest. As was reflected in the comments by the hon. Member for Aldershot (Mr. Howarth), we tend to assume that an atrocity has taken place and that we know from the media who is vaguely responsible, jump to judgments in our minds, and have the person before the court and locked up before they have gone through the procedures. I suggest to the hon. Lady that through this part of the Bill we are patiently, carefully and legally going through every procedure to ensure that the right accusations are made—that they are justified and are backed by evidence—and that the right person is brought before the court. That will produce a consistent process all the way through. Sometimes, in our imaginations we think, ``There's been an atrocity and we know who the culprits are; bring them to book and get them arrested, put them in front of the court and lock them up quickly.'' The Bill sets out the careful processes that start some time earlier.

The UK court in such a situation would not be trying the case, but fulfilling the request from the ICC to surrender a convicted person.

Mrs. Gillan: Am I right to assume that, because it is not a judicial process but a process of collecting someone who has been convicted and handing them back to the court, the Minister is prepared to accept a lesser onus of proof when deciding who the individual is than he would accept in our domestic law? Even if the court were not 100 per cent. sure—if, for example, the person had the same name as the convicted, but was innocent—would the Minister be happy if authorities in this country had no onus upon them to establish the identity of that individual, and could willingly hand him or her over? It is not impossible that someone called John Smith might be convicted, and there are several John Smiths. I am trying to establish whether the Minister is happy to accept a lower standard of proof in this area than he finds acceptable in other parts of our judicial process.

Mr. Battle: The hon. Lady poses a fair question, but it is not a lower standard. The court will need to be satisfied that the person before it is the fugitive wanted by the requesting country, and named in the Minister's authority, if it is to proceed. In extradition cases now, the divisional court has confirmed that the test applied to the quality of identification evidence is the same as that applied in determining whether there is a sufficient case to answer in criminal proceedings. I am not a lawyer, but I understand that that is called the Galbraith test. My hon. and learned Friend the Solicitor-General probably knows it in detail. The information before a magistrate should be such that it would be bound to lead him to the conclusion that he reached about the person's identity. There does not need to be a double standard.

The Bill makes provision corresponding to the relevant article of the Rome statute, 91.3(c), without applying any burden of proof test. If the UK court is not satisfied about the person's identity, it will not provide for their surrender. That is the first hurdle to get over, the first built-in proviso. There is also a possibility under clause 12 for the person to appeal against the delivery order on the ground that he or she is not the individual sought. In that case, the High Court will have to consider the matter. A series of processes will give the convicted person room for appeal. There is no need for the additional test in the amendment, which might also put us in breach of our international obligations.

Mr. Browne: I agree with the argument that my hon. Friend is advancing, but I have a question because of the terms of the statute. They envisage that no request for surrender of a convicted person will be supported other than by a warrant. That is my reading of article 91.3, which says:

    ``In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by''

a copy of a warrant. In this subsection, we seem to be anticipating circumstances in which a request for the surrender of a convicted person will not be accompanied by a warrant. There are likely to be few, if any, of those. In what circumstances does my hon. Friend envisage that there will be no warrant?

Mr. Battle: I am advised that there is a standard provision of summons, which would cover the case. It is right to envisage the worst possible cases to ensure that there are no gaps in provision. The idea and policy that we are trying to carry through in setting up the court, and handing people over to it, is that the right people are brought before it and that they are properly tried before it. That must tie in with our procedures, which are good—we have good law in that respect. I hope that the standard procedures here will be helpful.

Mrs. Gillan: The hon. Member for Kilmarnock and Loudoun (Mr. Browne) raised an important point. As I read it—perhaps the Minister can confirm it—the wording of 91.3(a) is

    ``a copy of any warrant of arrest'',

which implies that there may be a situation in which there is no warrant. I presume that the law that we are seeking to enact will cover that strictly, and fill a potential lacuna. I am sorry, I am helping the Minister out, but I was examining the matter and wondering what would happen if there were no warrant.

I feel that the Bill is here correcting what is almost a lacuna in the Rome statute and ensuring that we do not have faulty legislation; in that, the word ``any'' is the crucial point. Can the Minister confirm whether my thinking is correct?

Mr. Battle: The hon. Lady is absolutely right, and I am grateful for her clarification. The statute reads

    ``a copy of any warrant'',

and the word ``any'' is crucial. That ties us into the circumstances that we are discussing. Clause 2(4)(b) is trying to follow the wording of article 91.3(c) of the statute as part of our policy of co-operating with ICC requests, while ensuring that that is in line with what we do anyway.

We are talking not about arresting anybody, but a convicted person. There are ways of assessing whether a person is a convicted person, and not simply by the use of photographs, fingerprints, DNA and so on. There are means of knowing who the person is. I cannot envisage that there will be practical difficulties. However, the hon. Lady most helpfully pointed out that our tightening is helpful because of the word ``any''.

Mr. Edward Garnier (Harborough): I was intending not to speak on the amendment, until the Minister used the awful word ``escapee''. I ask him never to use it again in the sense that he meant. An ``escapee'', presumably, is the victim, or the respondent of an escape. The escaper is the person who has got away.

Leaving that tiresome and semantic point aside, the debate between my hon. Friend the Member for Chesham and Amersham and the Minister has been reassuring. None of us wants to see the wrong person sent to the ICC. We have seen in our own jurisdiction the difficulties caused by identification evidence. The Minister correctly mentioned the Galbraith case, the standard case on identity to which one always has to direct juries when dealing with identity issues. Identity has led to some of the greatest problems in miscarriage of justice cases during the past 15 or 20 years. As I am sure that the Solicitor-General will confirm, the Court of Appeal has been very keen to ensure that courts do not allow juries to be persuaded by faulty identification evidence.

The circumstances here are slightly different because, as the Minister said, we are dealing with a convicted person. The chances of mistaking the identity of a convicted person—of a person convicted in The Hague, and who is the subject of a request under clause 2, not being the same person who is picked up in this country—are relatively slim. Perhaps we should not be bound up by the expression in our amendment, although that is our fault, because it says ``beyond reasonable doubt''. We want to be sure, however, that the delivering system in this country behaves so that we are sure that the person in front of us is one who is to be delivered back to The Hague.

Neither my hon. Friend the Member for Chesham and Amersham nor I are hung up about the particular wording. In the light of this country's disasters of identity evidence during the past 15 or 20 years, we want to be sure before we ratify the statute of Rome that we are doing all that we can to prevent miscarriages of justice as a result of our enthusiasm for the overall principle behind the ICC, which is to bear down on war criminals. The Minister mentioned belt and braces, but if we have to use belt and braces, let us do so.

10.30 am

My hon. Friend mentioned article 91.3(a) of the Rome statute. I assume that the phrase:

    ``any warrant of arrest for that person''

refers to an ICC warrant and not, for example, to a Belarusian warrant for a bank robbery, or to a Sri Lankan arrest for another offence. Will the Minister confirm that that is implicit in the article?

Paragraph 3(c) of that article refers to:

    ``Information to demonstrate that the person sought is the one referred to in the judgement of conviction''

but contains no specific reference to who bears the burden of proof: that is, who must prove this or that. That matters, because courts are often not concerned, in practical terms, about who must prove something. However, they are interested in whether the evidence is available to reach a just conclusion, so the Minister need not be concerned about that.

Article 91.4 reads:

    ``Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.''

May I have the assurance that, in the event of consultations taking place between us, as a state party, and the court, the Government and any successive Government will draw to the court's attention our legitimate concerns about mistaken identity? We must bear in mind our judicial and criminal court history over the past 15 or 20 years, in which time we have seen appalling miscarriages of justice arising from issues of identity. May I also be assured that we will not have to wait for the court to request consultation with us, but that we, through either the Foreign Office or the Law Officers' Department, will initiate consultations to ensure that the court is aware of our concerns? Our concerns, as expressed by my hon. Friend the Member for Chesham and Amersham, are not meant to cause difficulties for the Government; rather, as the Minister was the first to appreciate, we have raised them to assist the better making of law.

 
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