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Lord Williams of Mostyn: I am grateful, again, as always, to the noble Lord, Lord Kingsland, for his careful explanation. He is right that this is taken from Article 64.7 of the statute. It is important to note that that article starts with the words:
- "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".
A large number of people would be traumatised in these cases--and it is not limited simply to young children--and although the material is not strictly speaking confidential in the sense of legal confidentiality or medical record confidentiality, it would be--I use my words carefully--a double attack on such people if certain intimate private matters, which are not capable of definition but capable of being categorised, would necessarily have to be in the public domain.
The important matters in Article 64.7 are, first, the presumption that the trial should be in public, and secondly, the discretion given to the court. That discretion has to be scrupulously exercised. It seems to me, without prejudging the conclusion of the judges, that they would need to think carefully about Article 10, for instance, on freedom of expression, and so forth. But there must be an area of evidence which really is so sensitive--I do not speak of national security sensitivity in this context--that it should not be in the public domain.
The curiosity is that if the amendment is accepted, it would mean that material which could not become public in the ICC would already have been made public at the evidence-gathering stage in this country. It seems to me to be the wiser course that if the discretion is to be exercised, it should be exercised determinatively by the trial court and not allowed to be open to the domestic court in effect to pre-empt that discretion. If the sensitive material is taken in public in
this country, there is no discretion left for the ICC to have it in private session. I do not think that is simply a lawyer's forensic argument; it goes to the substance of matters.
Lord Avebury: Does the Minister envisage that a request will be made by the ICC to hear this particular evidence in confidence? I refer to the case he mentions, where child victims of or child witnesses to atrocities might be giving evidence and their identities and relationships to the events in question need to be confidential for their own protection. First, why should that not be dealt with under the provisions which allow protection of victims and witnesses? Secondly, would the court decide of its own volition what the ICC is likely to want to treat as confidential information or will it have received a notice from the ICC saying, "In the case of this particular witness, if the case comes before us, we intend to maintain confidentiality. Therefore, will you do so also?"
Lord Williams of Mostyn: That is an interesting question. The answer that offers itself to me, speaking immediately in answer to it, is that there might be three distinct sets of circumstances. First, it might be that the court of its own volition would take the point. Courts are now much more proactive in such matters, which I would suggest, in parenthesis, is right. Secondly, there might be a request from the ICC, and thirdly, there might be a request put forward by the individual, if he or she were represented, or by someone who is not a legal representative but who might be a representative of an authority in the relevant country.
It seems to me that all of those are possible. It is likely that the ICC might well make the kind of request referred to by the noble Lord. If the request were not made and the opportunity was then lost, its own discretion is taken away.
The Earl of Onslow: Perhaps I may ask the Minister a question, which I ask in a spirit of constructive inquiry. I know that he will always pick his words carefully; I have never heard him not do so. Can he tell me how this compares with English law as it stands currently?
Lord McCluskey: This is a matter on which I was going to speak, not in relation to English law, but it is perfectly common for judges to have to make a ruling of this kind in cases at present. Thus, for example, in cases in which there has been a sexual type of assault, the court may exclude the public, and commonly does so. That is a perfectly normal type of provision, already operated by judges. However, what interests me is that when a judge excludes the public from the court, the press is not excluded. However, there is an understanding, which can be buttressed by certain powers of the court, that the press will not report the matter publicly. However, it is important that the press is allowed to be present as representing the public, but exercising a self-denying ordinance in relation to reporting prurient and other sensitive matters.
6 p.m.
Lord Williams of Mostyn: I am grateful. In courts north of the Border the discretion has been exercised for significantly longer. In answer to the noble Earl's request for a review of every conceivable circumstance in which courts in this country may sit in private, the legislation is relatively recent. In part, it was modelled on the Scottish experience. Therefore, there is the possibility in rare circumstances--and they should be rare--to have evidence taken in closed session. I exclude issues of national security, which I do not believe were behind the noble Earl's question.
As regards the press, today I received a letter from the Society of Editors. Unfortunately, it arrived almost as I entered the Chamber. It made the noble and learned Lord's point that if the public are to have eyes and ears there, perhaps there should one or two members of the press to represent the media, but, more fundamentally, to represent the public. I should like to examine that issue because we were able to meet those concerns in earlier criminal justice legislation. However, as the letter arrived only today I have had no opportunity to make inquiries. I am sympathetic to the point which the noble Earl implied and the noble and learned Lord spelt out.
Lord Kingsland: I, too, just received the letter but after I had introduced the amendment. The noble and learned Lord has reassured me by saying that he will reflect on the matter. Between now and the Report state I, too, want to reflect on his thoughtful answer but I will ask him one question arising out of his initial response. He spoke of the possibility of a public hearing of a matter in this country subsequently reheard by the International Criminal Court in The Hague, in circumstances in which it would have reached the conclusion that it ought to have been heard in private in The Hague but was faced with the fact that it had already been heard in public in the United Kingdom. Would the International Criminal Court of Justice be rehearing evidence which had already been heard at its request in a nation state?
Lord Williams of Mostyn: In some circumstances, yes. It would not be rehearing it; it would be receiving it for the first time. If the evidence had been given in public in a United Kingdom court, it would be receiving evidence that had already been given. It would not be a rehearing; the court would be receiving for the first time in The Hague material which had already been received domestically.
Lord Kingsland: I understand that, but I had thought--wrongly, as it turns out--that the noble and learned Lord the Attorney-General had said that in certain circumstances The Hague court might hear the evidence again. In all those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 [Transfer of prisoner to give evidence or assist in investigation]:
Baroness Scotland of Asthal moved Amendment No. 90:
- Page 16, line 24, at end insert--
The noble Baroness said: In moving Amendment No. 90, I shall speak also to Amendments Nos. 91 to 95 and 136. Under Article 93.7 of the statue, the ICC may request the temporary transfer of a person in custody for purposes of identification or to give testimony. The person may be transferred only with his consent and the consent of the country concerned. He will remain in custody throughout and will be returned to the state when the purposes of the transfer have been fulfilled. Clause 32 enables us to meet our obligations under Article 93.7.
The government amendments to Clause 32 have two aims. The first aim is to extend the clause to Scotland. The Scottish Parliament has already given its consent for this to happen. This will ensure that there is consistency throughout the UK with respect to the temporary transfer of persons in custody to the ICC. The mechanism for dealing with ICC requests for temporary transfer will mirror that in Clause 43 of the Bill, which relates to the temporary transfer back to the ICC of persons who are serving ICC sentences in this country. The second aim is to ensure that all persons in custody in the UK are covered by this clause.
Amendment No. 94 would extend the definition of "prisoner" for the purposes of Clause 32. The amended definition would include not only all persons serving a sentence but also all persons detained in custody otherwise than serving a sentence. That would include, for example, someone in custody in relation to ongoing extradition proceedings or someone in custody for contempt.
It would also include persons detained under the Immigration Act 1971. In order to ensure that such persons are not disadvantaged in respect of any ongoing claim under any immigration Act by agreeing to give assistance to the ICC, the person would, for the purposes of immigration legislation, be considered not to have left the UK while he was subject to the temporary transfer warrant.
Amendment No. 136 is consequential on the earlier amendments. By virtue of the extension of Clause 32 to Scotland, Clause 78, which defines the extent of this Bill, will also need to be amended.
We believe that these amendments will improve Clause 32 and make us better able to fulfil our obligations and to provide support to the ICC. I beg to move.
On Question, amendment agreed to.
("(1A) Where the prisoner is detained in Scotland, the Secretary of State shall transmit the request to the Scottish Ministers.").
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