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Mr. Garnier: I have one or two very brief questions about clause 6. We all know that the competent court means the domestic court that will deal with the transmission of the defendant to the ICC. I want to ask the Government about costs.
4.30 pm
I note that in clause 6(2) provision is made for the payment of
``defence costs on dismissal of proceedings''.
If a defendant is brought before the competent court and it dismisses the information against him, he would be entitled to recover his costs, which I assume would be obtained from the Crown Prosecution Service or the Foreign Office. I expect that it would be the CPS because it would be acting for its client—the Foreign Office or the ICC—just as the CPS acted for the Government of Spain in the Pinochet matter. In the event that the case is dismissed and the CPS is required to pay the defendant's costs, will the CPS—and I ask the question as protector of taxpayers' money—be able to recover, on an indemnity basis, what it has paid from the ICC?
Mr. Battle: When the hon. and learned Gentleman moved the amendment on the previous clause, he commented that we must address the detail of the Bill and get it right. I concur. We are not content to say simply that the Bill is a good idea, so let us get on with it.
Clause 6 contains practical provisions that will ensure the proper and efficient conduct of proceeding on a delivery order. It enables a competent court to exercise certain powers relating to the conduct of proceedings; for example, it can adjourn the case and remand the arrested person. It provides for the arrested person to have access to criminal advice, assistance and representation through the criminal defence services. As for what would happen in the event of a discharge, the arrested person's costs would be paid out of central funds.
Mr. Garnier: I am grateful to the Minister, but my question went a little further. Will the CPS be able to recover the outgoing costs that it has to pay from its client—the foreign extra-territorial body? While he is taking instructions, and I mean that in the nicest—
Mr. Battle: I am not insulted. I apologise for the delay.
Mr. Garnier: No, I am delighted. I want the Minister to have all the information that he needs.
In the extradition case, the kingdom of Spain was the client of the CPS, which may—I do not remember—be insusceptible to an order for costs, and that case may have gone all the way through the Lords and back. Under the Bill, will the ICC be required to pay the CPS's costs for doing the ICC's work?
Mr. Battle: That is a good question. I apologise for consulting the Solicitor-General, but his advice, as usual, is spot on. Article 100 refers to costs, and makes it clear that costs would be borne by the state, not by the ICC, so they would come back home to us and we would have to find them from central funds.
Question put and agreed to.
Clause 6 ordered to stand part of the Bill
Clause 7
Consent to surrender
Question proposed, That the clause stand part of the Bill.
Mrs. Gillan: I have not tabled an amendment to the clause, but seek clarification following the proceedings in another place. Clause 7 deals with consent to surrender and provides that where an arrested person gives written consent
``in the presence of the justice of the peace or, in Scotland, a sheriff,''
the competent court will make a delivery order and the person will have been taken to have ``waived his rights'' to appeal against the order. According to the notes on the clauses, that reflects the provision in article 92.3.
Clause 7(2)(b) states that consent to surrender may be given
``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.''
The definition of incapacity was brought up in another place, but I want to probe the matter further because, as I am sure that the Solicitor-General will agree, it is important to establish the circumstances in which another individual can take on the onerous burden of consenting to surrender for the person who is the subject of the warrant.
In our discussion of clause 2, we saw that a person already convicted can be the subject of a warrant and therefore in extremis—he or she has nothing to lose. Yet here we have a situation in which a person purporting to take the burden from the shoulders of the person arrested will take on the role of mouthpiece. That has serious implications for the liberty of the person arrested. Given that the provision gives total discretion to the other person acting on that individual's behalf, the ability to consent to surrender should be given to another person only in very restricted circumstances in which the person arrested cannot give consent.
My noble Friend Lord Kingsland moved an amendment to that effect, No. 37, in another place. The Attorney-General, Lord Williams of Mostyn, tried to give a reason for rejecting the amendment, but the discussion was not a full one and it represented something of a dismissal of the case that had been advanced quite succinctly. The Solicitor-General should have the chance to make further comment on the definition of incapacity, given the severity of the consequences. It is important to ensure that the court is satisfied of the individual's incapacity prior to accepting consent from another party.
The Solicitor-General: As the hon. Lady rightly says, there is a provision whereby, in circumstances in which it is inappropriate for a person to act for himself or herself, someone acting on his or her behalf can give consent, that is, in the event of incapacity. Our domestic courts will not take such a matter lightly. They will want to be satisfied as to the incapacity and to test both it and the appropriateness of somebody else acting on the person's behalf. It is right that the Opposition raise such cases, although we think that they are extremely unlikely to occur, if at all.
Mrs. Gillan: The Solicitor-General says that such cases are unlikely to occur. However, one condition in 7(2)(b) is ``by reason of . . . youth''. Child soldiers are used extensively in certain warring areas, so it is not unreasonable to assume that a situation might arise in which a minor—I would like the Solicitor-General to clarify any possible age limit—is subject to having to give consent to surrender, but is incapable of doing so and requires someone to do it on his or her behalf. I am not sure what the Solicitor-General means when he says that that is impossible. It might be unlikely, but it is possible or even probable in certain circumstances.
The Solicitor-General: The courts will not have jurisdiction over persons under the age of 18. The key point is that the court will test the matter—if there is any dispute about the person's capability, the court will decide. I am sure that our courts will exercise that power rigorously.
4.40 pm
Sitting suspended for a Division in the House.
4.55 pm
On resuming—
Question put and agreed to.
Clause 7 ordered to stand part of the Bill.
Clause 8
Procedure where court refuses order
Question proposed, That the clause stand part of the Bill.
Mr. Garnier: I have only a few brief questions on clause 8. Subsection (1) states:
Will the Solicitor-General confirm that remand can mean remand in custody and remand on bail? Will the usual domestic rules for the granting or otherwise of bail apply? Is it anticipated that special rules, which are different from the usual criminal bail rules, will apply? The Solicitor-General is being handed a piece of paper—
The Solicitor-General: I do not need it.
Mr. Garnier: I know that the hon. and learned Gentleman does not need any help.
Clause 8(2) states:
``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''.
Could both the Crown—acting for the ICC—and the defendant appeal if they were dissatisfied, or is an appeal open only to the defendant?
The Solicitor-General: I can give the assurance that the hon. and learned Gentleman seeks on the first point. Clause 16 provides for remand to include remand on bail. The ordinary bail rules would apply. That is also true of appeal—the hon. and learned Gentleman's third point.
Mr. Garnier: Subsection (2) contains the phrase:
``If the court is informed without delay that an appeal is to be brought under section 9 or 10''.
Clause 9 deals with appeals against refusal of a delivery order in England and Wales and clause 10 deals with such appeals in Scotland, although I will not worry about that because it is way beyond my ken—whoever he is. However, I want to be clear that there is a two-sided appeals system in clause 9. Or is it only one-sided? I might have wholly misunderstood the thrust of clause 8, in which case the Solicitor-General can correct me.
The Solicitor-General: In this case, the piece of paper did help me. The Secretary of State can appeal if there is no order, and the accused can appeal if there is. I hope that that gives the hon. and learned Gentleman the assurance that he seeks.
Question put and agreed to.
Clause 8 ordered to stand part of the Bill.
Clauses 9 and 10 ordered to stand part of the Bill.
The following Members attended the Committee:
Cook, Mr. Frank (Chairman)
Battle, Mr.
Blunt, Mr.
Browne, Mr.
Cranston, Mr.
Day, Mr.
Gapes, Mr.
Garnier, Mr.
Gillan, Mrs.
Hendrick, Mr.
Howarth, Mr. Gerald
King, Ms Oona
Lammy, Mr.
Maclennan, Mr.
McNulty, Mr.
Naysmith, Dr.
Worthington, Mr.
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