Clause 2 - Request for arrest and surrender
International Criminal Court Bill [Lords]
10:15 am
Mr Edward Garnier (Harborough, Conservative)
I was intending not to speak on the amendment, until the Minister used the awful word ``escapee''. I ask him never to use it again in the sense that he meant. An ``escapee'', presumably, is the victim, or the respondent of an escape. The escaper is the person who has got away.
Leaving that tiresome and semantic point aside, the debate between my hon. Friend the Member for Chesham and Amersham and the Minister has been reassuring. None of us wants to see the wrong person sent to the ICC. We have seen in our own jurisdiction the difficulties caused by identification evidence. The Minister correctly mentioned the Galbraith case, the standard case on identity to which one always has to direct juries when dealing with identity issues. Identity has led to some of the greatest problems in miscarriage of justice cases during the past 15 or 20 years. As I am sure that the Solicitor-General will confirm, the Court of Appeal has been very keen to ensure that courts do not allow juries to be persuaded by faulty identification evidence.
The circumstances here are slightly different because, as the Minister said, we are dealing with a convicted person. The chances of mistaking the identity of a convicted person—of a person convicted in The Hague, and who is the subject of a request under clause 2, not being the same person who is picked up in this country—are relatively slim. Perhaps we should not be bound up by the expression in our amendment, although that is our fault, because it says ``beyond reasonable doubt''. We want to be sure, however, that the delivering system in this country behaves so that we are sure that the person in front of us is one who is to be delivered back to The Hague.
Neither my hon. Friend the Member for Chesham and Amersham nor I are hung up about the particular wording. In the light of this country's disasters of identity evidence during the past 15 or 20 years, we want to be sure before we ratify the statute of Rome that we are doing all that we can to prevent miscarriages of justice as a result of our enthusiasm for the overall principle behind the ICC, which is to bear down on war criminals. The Minister mentioned belt and braces, but if we have to use belt and braces, let us do so.
My hon. Friend mentioned article 91.3(a) of the Rome statute. I assume that the phrase:
``any warrant of arrest for that person''
refers to an ICC warrant and not, for example, to a Belarusian warrant for a bank robbery, or to a Sri Lankan arrest for another offence. Will the Minister confirm that that is implicit in the article?
Paragraph 3(c) of that article refers to:
``Information to demonstrate that the person sought is the one referred to in the judgement of conviction''
but contains no specific reference to who bears the burden of proof: that is, who must prove this or that. That matters, because courts are often not concerned, in practical terms, about who must prove something. However, they are interested in whether the evidence is available to reach a just conclusion, so the Minister need not be concerned about that.
Article 91.4 reads:
``Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.''
May I have the assurance that, in the event of consultations taking place between us, as a state party, and the court, the Government and any successive Government will draw to the court's attention our legitimate concerns about mistaken identity? We must bear in mind our judicial and criminal court history over the past 15 or 20 years, in which time we have seen appalling miscarriages of justice arising from issues of identity. May I also be assured that we will not have to wait for the court to request consultation with us, but that we, through either the Foreign Office or the Law Officers' Department, will initiate consultations to ensure that the court is aware of our concerns? Our concerns, as expressed by my hon. Friend the Member for Chesham and Amersham, are not meant to cause difficulties for the Government; rather, as the Minister was the first to appreciate, we have raised them to assist the better making of law.