International Criminal Court Bill [Lords]

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Mr. Tony Worthington (Clydebank and Milngavie): It could be photocopied.

Mr. Garnier: That is right, it could. It could be handed to the defendant, saying, ``These are your rights.'' I dare say that there are protocols or other such written memoranda in international jurisprudence that are used in the cases of those brought before the Yugoslavian or Rwandan tribunals; there may well have been something similar in the Cambodian or Laotian court that the United Nations set up. In any event, it cannot be beyond the wit of man, let alone the Opposition, to draw up a written document that sets out a defendant's guaranteed rights, protections and privileges. That is surely a secretarial task, which does not require the input of huge legal thought or intellect.

Article 64 of the statute relates to the ``Functions and powers of the Trial Chamber''. It deals in part with the concerns expressed in paragraph 3 of the new schedule. Other articles on pages 36 to 38 of the statute may assist me, but I want the Government to confirm their understanding of the statute. Paragraph 3 of the new schedule states:

    ``The said rights and protections and privileges in paragraph 2 shall incude but not be limited to the following—

    (a) the presumption of innocence until proven guilty''.

It does not take a brain surgeon or rocket scientist to go much beyond article 66, in which one sees that the presumption of innocence is incorporated into the statute. The article states:

    ``Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.''

That is fine as far as it goes. The onus is on the prosecutor to prove the guilt of the accused and the standard of proof required in paragraph 3 is something that we would all recognise.

Paragraph (b) of the new schedule states that there shall be

    ``a public trial unless the defendant consents to a trial in secret''.

That is almost dealt with in the statute, but not quite. Article 64.7 states:

    ``The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence.''

One could imagine any number of circumstances in which it would be appropriate to have a criminal trial in the absence of the press and the public—one thinks of national security trials in this country. Although parts of such trials would have to take place in open court, it is only right and proper when dealing with espionage matters or matters of acute national security that the public should be excluded, subject to the defendant being given proper protection. Otherwise, the whole purpose of the secrecy system covering our intelligence and security services would be destroyed.

Article 64.7 does not, however, meet the concern that we want met in paragraph 3(b). The choice of whether the trial should be held in public or in secret appears from the article to remain with the court and to allow no input from the defendant. I turn to article 67 to see whether any of the rights of the accused which it sets out give me any assistance. Perhaps I have been hasty, but I do not think that that article deals with the issue set out in paragraph 3(b). I look forward to hearing the Government's view on that.

[Mr. Worthington in the Chair]

Paragraph 3(c) of new schedule 1 refers to

    ``the rights to confront and cross-examine witnesses''.

Article 61.6 states:

    ``At the Hearing, the person may

    (a) Object to the charges;

    (b) Challenge the evidence presented by the Prosecutor; and

    (c) Present evidence.''

I am sure that that is welcome. However, do the Government suggest that paragraph 6(b) wholly covers my concerns as explained in paragraph 3(c)? Is the right

    ``to confront and cross-examine witnesses''

wholly protected by paragraph 6(b)? I ask that because some will remember the recent discussions about the ability of defendants who represent themselves in rape cases in this country to cross-examine their alleged victims. I cannot remember the current position, but there have been discussions, and it may well be the law in rape cases that a defendant acting for himself may be prohibited at the discretion of the trial judge from cross-examining the complainant. An ICC defendant is not required to be represented by a lawyer, and the judges may sometimes think it appropriate, in line with discussions that we have had in this country, to direct that the defendant should not have the right to confront a witness for the prosecution in cases of rape or mass rape, which is a war crime. What is the Government's view? Should the ICC have the power to prevent a defendant who represents himself from asking unattractive, upsetting and emotionally disturbing questions of the complainant?

[Mr. Frank Cook in the Chair]

4 pm

Paragraph 3(d) of the new schedule refers to the

    ``conduct of proceedings in the defendant's choice at the public expense''.

There may have been a typographical error there, because the provision does not make sense. I understand it to refer to the conduct of proceedings in the language of the defendant's choice at the public expense. The statute probably caters for that up to a point in that it identifies the official languages of the court and provision is made for the supply of necessary interpreters. I have been to The Hague and know that that is possible—no doubt at some expense and in a way that slows the trial process. None the less, a defendant who cannot speak one of the official languages would be protected by the provision of adequate interpreting services.

Paragraph 3(e) deals with

    ``the right to remain silent without the drawing of adverse inferences for such silence''.

Article 67.1 states:

    ``In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality''.

Sub-paragraph (g) adds that the accused shall be entitled not

    ``to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence''.

This may be simply a question of the construction of the language of the statute, but I would like confirmation that sub-paragraph (g) means that no adverse inference will be drawn against a defendant who remains silent. Some well-informed Labour Back Bencher will undoubtedly pop up and say, ``Didn't your Government introduce the relevant sections?''

Mr. Worthington: Indeed.

Mr. Garnier: There we are—cast a fly across the water and the little chap will bob up. The important point is that the prosecution in this country must at least identify the inference—[Interruption.] It was not in this case. The prosecution must identify the inference before the jury is invited to draw an adverse inference from silence at arrest or interview or from a failure to give evidence. I would like confirmation that sub-paragraph (g) is compliant with paragraph 3(e) of new schedule 1.

Paragraph 3(f) of new schedule 1, which provides for

    ``all proceedings whether by jury or otherwise to be conducted in the first language of the accused, or with the provision by the ICC to the defence and accused of appropriate and competent interpretation'',

has been dealt with, up to a point, by my argument on paragraph 3(d). Article 64(3) of the statute states:

    ``Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall . . .

    (b) Determine the language or languages to be used at trial''.

I assume that, in line with the ordinary rules of natural justice, the court will determine the language or languages to be used at trial in such a way that the defendant will not be disadvantaged. I am sure that that is uncontroversial. However, there may be circumstances in which the defendant speaks a language wholly unknown to the bank of translators or interpreters at the Hague.

To introduce an almost irrelevant note of levity I am reminded of the candidate at All Souls who was studying Serbo-Croat and wanted to be examined orally in that language at Oxford so that he could complete his postgraduate studies. The university authorities wrote to the then Yugoslav embassy to inquire about the most appropriate and sensible choice of person to conduct the examination, only to be told that that would be the candidate himself. That has nothing to do with the ICC but it demonstrates that from time to time languages or dialects that are known by only a few people may crop up. We must be sure, in setting up the ICC, to establish access to a sufficient breadth of language knowledge, so that no defendant, whether a citizen of the United Kingdom or of some other country, will be disadvantaged by a failure with respect to language.

Paragraph 3(g) of new schedule 1 would provide that

    ``a party who has been acquitted of an offence may not be retried for the same offence, or an offence on the same or similar facts''.

Article 20.1 of the statute states:

    ``Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.''

Articles 22 and 23 are complementary to that. In the context of article 23, I want to know the Government's view on who decides whether article 20 bites—the domestic courts in this country or in the other jurisdiction contesting the ICC's jurisdiction, the pre-trial chamber or the full court? If a challenge is made on the ground of autrefois acquittal or conviction, who will reach the necessary conclusion? Should the competent court in this country, when asked to deliver up a defendant, be able to reach a final decision, or should its decision be open to re-examination by the pre-trial chamber or the ICC?

I have been engaged in a dry discussion that has not been exactly a laugh a moment, but the matters involved need to be examined. I want reassurance from the Government about them, not least because—I do not blame anyone for this—we are operating under a constrained timetable. The House, in its wisdom, has decided that we should have only a certain number of days to discuss the matter in Committee and only a certain number of hours to discuss the Bill on Second Reading and Report, and very little discussion took place on these matters in another place. Although they might not be hugely fascinating to all those concerned, I believe that it is appropriate to raise them and seek reassurance from the Government. We should not allow ourselves to be overtaken by the enthusiasm for the ICC thta—albeit to greater or lesser degree—we all share and rush through the Bill to take our country into the ICC without taking proper account of the need to ensure that the machinery is in place, not only to deter bad guys wherever they may be, from being bad, but to protect the innocent from being convicted.

 
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