1 International Criminal Court
Act 2001 (Elements of Crimes) Regulations 2004: defective drafting
International Criminal Court Act 2001 (Elements
of Crimes) Regulations 2004
(S.I. 2004/1080)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted.
1.2 Section 50(2) of the International Criminal Court
Act requires a court in England, Wales or Northern Ireland, in
interpreting and applying the provisions of articles 6 (genocide),
7 (crimes against humanity) and 8.2 (war crimes) of the Statute
of the International Criminal Court, to take into account (a)
any relevant Elements of Crimes adopted in accordance with article
9 of that Statute and, (b) until such time as Elements of Crimes
are adopted under that article, any relevant Elements of Crimes
contained in the report of the Preparatory Commission for the
International Criminal Court adopted on 30 June 2000.
1.3 Section 50(3) requires the Secretary of State
to set out in regulations the text of the Elements of Crime referred
to in subsection (2), as amended from time to time. Unlike most
of the 2001 Act, section 50(3) extends to Scotland.
1.4 These Regulations set out the Elements of Crime
adopted in accordance with article 9 on 9 September 2002. By virtue
of regulation 1(2), they extend to England and Wales and Northern
Ireland. They revoke the International Criminal Court Act 2001
(Elements of Crime) Regulations 2001, which set out the Elements
of Crime referred to in section 50(2)(b). The 2001 Regulations
extended to the whole of the United Kingdom. The effect of these
Regulations is therefore that the 2001 Regulations continue to
apply in Scotland.
1.5 In a memorandum printed at Appendix 1, the Foreign
and Commonwealth Office states that the failure to extend these
Regulations to Scotland was an oversight, as was the failure to
include a commencement date in regulation 1(1). The Department
has taken steps to make a new instrument which corrects the errors
and revokes these Regulations. The Committee accordingly reports
these Regulations for defective drafting, acknowledged by the
Department.
