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Lord Kingsland: I thank the noble and learned Lord the Attorney-General for his reply, which did not in any way surprise me. Under Clause 3 the Secretary of State has a wider discretion than under Clause 2, because in Clause 3(2) there is the expression:

If I may respectfully help the noble and learned Lord, I hope not for the only occasion in the course of the Committee stage, that seems to be a proper distinction to draw between the circumstances of Clause 3 and the circumstances of Clause 2. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howell of Guildford moved Amendment No.11:

    Page 2, line 40, leave out from beginning to ("shall") in line 41.

The noble Lord said: This is another amendment of Scottish provenance. The amendment seeks to ensure that before an application for a provisional arrest warrant is made in Scotland, the procurator fiscal must be satisfied that the request has been made by the International Criminal Court on grounds of urgency and that the person is either in Scotland or on his way to Scotland.

We believe it is generally agreed that it is necessary to ensure that there is some degree of scrutiny given to requests for provisional arrest warrants before an application is made. This should ensure that the conduct will be proportional to the desired outcome. I am advised that the Bill as currently drafted makes provision for a constable in England and Wales to consider these issues before making an application for a warrant. The amendment will ensure that the position in Scotland is similar to that in England and Wales. I beg to move.

Lord Williams of Mostyn: I am the man in the Bateman cartoon. I believe the noble Lord is right in respect of Amendments No. 11 and 12. I am happy to accept them.

On Question, amendment agreed to.

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Lord Howell of Guildford moved Amendment No. 12:

    Page 2, line 40, at beginning insert--

("if the procurator fiscal is satisfied--
(i) that a request has been made on grounds of urgency by the ICC for the arrest of a person, and
(ii) that the person is in, or on his way to Scotland,
the procurator fiscal shall make an application for a warrant to an appropriate judicial officer and that officer").

On Question, amendment agreed to.

[Amendment No. 13 not moved.]

Clause 3, as amended, agreed to.

Clause 4 [Dealing with person arrested under provisional warrant]:

Lord Howell of Guildford moved Amendment No. 14:

    Page 3, line 2, after ("court") insert ("or courts-martial in the case of service personnel").

The noble Lord said: Clause 4 deals with a person arrested under warrant. The person arrested under a provisional warrant is required to be brought before a court as soon as possible. That is established law in criminal matters generally. Clause 4 appears to make no allowance for service personnel who would otherwise be brought before a civilian court under the Bill as it stands.

The amendment seeks to ensure that service personnel are brought before a courts martial, a court of the type with which they are familiar. It seems to us right that military personnel do appear before a courts martial as civil courts might not be best placed to understand many complex issues in the circumstances in which some of these horrific crimes are alleged to have occurred. These are often circumstances of war or of high complexity and difficulty, where a courts martial is the proper way forward. I beg to move.

Lord Williams of Mostyn: Amendment No. 14 relates to provisional warrants under Clause 4 of the Bill. It proceeds on an incorrect understanding of the relationship between courts martial and standing courts. Courts martial are not standing courts; they are ad hoc courts that come into existence for particular cases. There is no role for a court martial in delivery proceedings any more than service personnel would go to a court martial for extradition proceedings. The analogy is a good one. The court martial deals with certain offences committed by military personnel, but not all. The only point of Clause 4 is to deal with those who are arrested under provisional warrants, so there is no role for the court martial. Military personnel would have their interests safeguarded in the same way as any other accused person arrested under provisional warrant; namely, in the usual courts.

Earl Attlee: I must inform the Committee that I have an interest. I am a serving officer in the Territorial Army. I might be caught by the Bill if I misbehaved myself; but I hope that that would never happen. Can the noble and learned Lord the Attorney-General say what will happen if the ICC wants to prosecute someone currently serving in HM Armed Forces

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overseas where there is no convenient court to attend, but where it would be possible to convene a court martial very quickly?

Lord Williams of Mostyn: It is possible to convene a court martial very quickly. They are not standing courts for the purposes of dealing with provisional warrants any more than they are standing courts for dealing with extradition proceedings. That is the true answer to the question. There is no difficulty these days in getting someone back from Germany, Cyprus or wherever to be dealt with in the court at Bow Street in the usual way.

Lord Howell of Guildford: I confess that I am not entirely happy with the noble and learned Lord's reply. The analogy with extradition seems to be not quite the right one. As I understand it, the whole point of the Bill is to avoid the complexities and delays inherent in the extradition process in order that in the wider world monsters and barbarous perpetrators of crimes can be swiftly obtained and brought before the International Criminal Court. To say that military personnel would be as protected as they are in extradition proceedings cannot be right. They are not as protected because the ICC--through the complementarity process and through the obligations that we are laying on ourselves by giving powers to this higher jurisdiction--has the power to investigate, unless the state party says that it is already investigating, and to seek to charge or issue a warrant against an individual member of the Armed Forces. That is where much of the worry lies, as I am sure will be familiar to the noble and learned Lord.

There seems to be a considerable volume of worry in this country, and more so in the United States of America, about the vulnerability and openness of service personnel to investigations and possible charges which may arise from other people's and other countries' definitions of what are war crimes which may not be our definitions. They may be definitions with which we are not prepared to deal in a court, or which a court martial would be able to identify as vexatious from the start.

The reply leaves a kind of pall of unease over service personnel.

Lord Avebury: Can the noble Lord explain what he means by other countries' definitions of war crimes? Is there not only one definition of war crimes? That is the one contained in the statute.

Lord Howell of Guildford: This may be why the Republic of France has put down a declaration on the face of the ratification status about military objectives. The difficulty arises when one comes to define a military objective and whether an act which is regarded as a war crime by those who experience and suffer it--bombarding a village in war and killing civilians--but not by those who carried out the bombardment is a war crime. This is where the difficulty arises. The noble Lord, Lord Avebury, is right. The definition of war crimes is there. But the difficulty begins when we include it in our national

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legislation and bring in this higher jurisdiction which we want to aim at the right targets We will not get far by dismissing the difficulty that exists. It is our duty to try to clarify it.

This is a matter that we would wish to pursue at Report stage. In view of the position taken by the noble and learned Lord, Lord Williams of Mostyn, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 15:

    Page 3, line 2, leave out ("as soon as is practicable") and insert ("not later than the first day after the person has been taken into custody, such day not being a Saturday, Sunday or court holiday").

The noble Lord said: Amendment No. 15 concerns the words "as soon as is practicable" in Clause 4(1). Our amendment ensures that a person arrested under a provisional warrant is brought before a competent court on the next lawful day after arrest.

Section 105(3) of the Criminal Procedure (Scotland) Act 1995 provides that a person arrested under a warrant, or by virtue of powers of any enactment or rule of law, shall, wherever practicable, be brought before a competent court not later than the first day after being taken into custody, such day not being a Saturday, Sunday or holiday. This rule applies in Scotland in the most serious cases, such as murder and rape. We can see no reason for departing from this general rule, even in the case of this Bill. This amendment would avoid the difficulties of deciding whether the person was brought before a competent court as soon as was practicable having regard to the circumstances of each case.

I turn to Amendment No. 16. It is our view that there is no justification for a remand in custody on presentation at court if a provisional warrant cannot then be produced. Amendments Nos. 17 and 19 are intended to avoid a situation where there is an indefinite remand in the absence of the production of a warrant.

Finally, Amendment No. 20 seeks to insert into Clause 4 the words:

    "Where a person has been discharged under this section, he shall not be arrested under a subsequent section 2 warrant unless the court is satisfied that such an arrest is not oppressive".

Clause 4(7) allows for a person discharged under Clause 4 to be arrested again under a Clause 2 warrant. By leaving out Clause 4(7) and inserting the amendment, the person will not be arrested again, thus stopping a witch-hunt against that person and avoiding what would otherwise appear to be his persecution. I beg to move.

5 p.m.

Lord Williams of Mostyn: As the noble Lord said, the amendments all relate to the question of provisional warrants. Perhaps I may deal first with the suggested time-limits. I do not believe that time-limits of this nature are the most effective course. Provisional warrants may be issued for very dangerous and elusive

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subjects. In this category of crime, we should not run the risk that they will simply walk free on a technicality.

I understand the concerns that have been expressed and I assure the Committee that every effort will be made to bring those arrested on a provisional warrant before a competent court as soon as is possible in the circumstances. Indeed, the equivalent provisions in the Extradition Act have not given rise to any problems.

Perhaps I may now deal with the amendments relating to remand and bail, as set out in Clause 4. The noble Lord proposes an amendment to subsection (3) of Clause 4 which would ensure that all those arrested under a provisional warrant would be given unconditional bail. That is related to a proposed amendment to Clause 16, to which we shall come in due time, making remand on bail applicable only in England and Wales. I understand the intention but I do not believe that we ought to alter the Bill in that way. I repeat that those who would be applying for bail would be linked to some of the gravest crimes known. I do not believe that we should ever consider unconditional bail in those circumstances. My understanding is that the course suggested in the amendment would be contrary to Article 59 of the statute. That is why Clauses 16 to 18 are important. They provide clear criteria for the granting of bail.

Finally, I should like to turn to the length of time that a person may spend on remand. The Bill as drafted allows for the incorporation of the ICC rules of evidence and procedure on this matter. The rules, which will be finalised at the first Assembly of States Parties, are currently drafted to allow for a 60-day maximum period on remand, after arrest on a provisional warrant. Amendments have been tabled which would take away our ability to incorporate those rules on time limits and also ensure that there is no extension of a period on remand.

An alternative time limit of seven days has been suggested. However, I believe that we should adopt the same standards as the ICC. The total period of remand for 60 days pending receipt of the full request is consistent broadly with the 40 to 60-day periods that apply in extradition cases. That will give the ICC time to assemble the appropriate documentation, while ensuring that a person will not be held unjustifiably.

The noble Lord also proposes an amendment to subsection (7). That would prohibit the re-arrest of someone discharged if that arrest is "oppressive". I am not sure how one is able to define that in all the circumstances. The amendment would interfere with our ability to meet our obligations. If a Clause 2 warrant is issued, we should do everything we can to assist in the execution of that request.

I take the point underlying what the noble Lord, Lord Kingsland, said. It would not be right to harry people unnecessarily. But a 60-day period is not unreasonable if one thinks of the general context of criminal proceedings in this country in cases of serious charges. I stress that the rules will be important. If the noble Lord, Lord Kingsland, still feels unhappy, I

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hope that he will take up my offer of a meeting. I am perfectly happy to discuss these matters with him. They are quite fine matters--sometimes matters of fine detail. In all the circumstances, I hope that he will not press the amendment at this stage.

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