Clause 7 - Consent to surrender
International Criminal Court Bill [Lords]
4:30 pm
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
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.