PART 2 - INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE

Consent to prosecutions for international crimes

13.
Attorney-General's consent to prosecutions required—

(1)Proceedings for an offence against section 9 or section 10 or section 11 may not be instituted in any New Zealand court without the consent of the Attorney-General.

(2)Despite subsection (1), a person charged with an offence against section 9 or section 10 or section 11 may be arrested, or a warrant for his or her arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further proceedings can be taken until that consent has been obtained.

PART 2 - INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE

Consent to prosecutions for offences against administration of justice

22.
Attorney-General's consent to prosecutions required—

(2)Despite subsection (1), a person charged with an offence against any of sections 15 to 21 may be arrested, or a warrant for his or her arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further proceedings can be taken until that consent has been obtained.

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

26.
Urgent requests—

(1)In urgent cases a request for assistance (including a request for provisional arrest) may be—

(a)made using any medium capable of delivering a written record:

(b)transmitted through the International Criminal Police Organisation or any other appropriate regional organisation, instead of through an authorised channel.


(2)If a request is made or transmitted in the first instance in the manner specified in subsection (1), it must be followed as soon as practicable by a formal request transmitted in the manner specified in section 25.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Request from ICC for arrest and surrender

32.
Request for arrest and surrender—

(1)This Part applies to a request made by the ICC under article 89(1) of the Statute for the arrest and surrender from New Zealand of—

(a)a person in respect of whom the Pre-Trial Chamber has issued a warrant of arrest under article 58 or article 60 of the Statute for an international crime:

(b)a person who has been convicted by the ICC of an international crime.

(2)This Part applies to a request made under article 92 of the Statute for the provisional arrest of a person accused or convicted of an international crime.

(3)The following provisions of this Part apply subject to sections 55 to 66 (which deal with restrictions on surrender and the execution of a request for surrender):

(a)sections 33 to 35 (which deal with arrest where a request for surrender is received):

(b)sections 36 to 38 (which deal with provisional arrest in urgent cases):

(c)sections 39 to 42 (which deal with remand and bail):

(d)sections 43 to 46 (which deal with eligibility for surrender):

(e)sections 47 to 54 (which deal with surrender and temporary surrender).

Cf Statute, articles 58, 60(5), 91(2)-(4), 92(1)

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Provisional arrest in urgent cases

36.Provisional arrest warrant may be issued—

(1)A District Court Judge may issue a provisional warrant in the prescribed form for the arrest of a person if the Judge is satisfied on the basis of the information presented to him or her that—

(a)a warrant for the arrest of a person has been issued by the ICC or, in the case of a convicted person, a judgment of conviction has been given in relation to an international crime; and

(b)the person named in the warrant or judgment is or is suspected of being in New Zealand or may come to New Zealand; and

(c)it is necessary or desirable for an arrest warrant to be issued urgently.

(2)A warrant may be issued under this section even though no request for surrender has yet been made or received from the ICC.

Cf 1999 No 55 s 20; Statute, article 92

37.
Notice to be given to Minister—

(1)If a District Court Judge issues a provisional arrest warrant under section 36, the applicant for the warrant must report the issue of the warrant to the Minister without delay.

(2)The applicant must include in the report to the Minister a copy of the warrant issued by the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the applicant produced to the Judge.

(3)On receipt of the report under subsection (1), the Minister may, if the Minister thinks fit, order that the proceedings be discontinued.

(4)If the Minister orders that the proceedings be discontinued, the Minister may cancel any warrant of arrest and order the discharge of any person arrested under the warrant.

(5)The Minister must notify the District Court of any action taken under subsection (3) or subsection (4).

Cf 1999 No 55 s 21

38.
Procedure where provisional arrest warrant issued—

(1)If a person has been arrested on a provisional arrest warrant issued under section 36, the following provisions apply:

(a)the hearing of the proceedings must not proceed until the District Court receives from the Minister a notice in writing stating that a request for the surrender of the person has been transmitted to the Minister in the manner specified in section 25:

(b)pending the receipt of the notice from the Minister, the proceedings may from time to time be adjourned:

(c)the District Court must set a date by which the notice is to be transmitted to it, which must be a reasonable time having regard to—

(i)any provision in the Rules that prescribes the maximum period for transmission by the ICC of the request and supporting documents to the requested State:

(ii)if there is no such provision, the time it is likely to take for the ICC to prepare and transmit the request and supporting documents to New Zealand:

(iii)the time it is likely to take for the Minister to consider the request after receipt and for the notice to be transmitted to the District Court:

(d)if the District Court does not receive the notice within the time fixed by the District Court under paragraph (c), and does not extend that time under subsection (2), the District Court must discharge the person.

(2)The District Court may, from time to time, in its discretion, extend any time fixed by it under subsection (1)(c).

Cf 1999 No 55 s 23(4); Statute, article 92(1)


Remand and bail

39.
Procedure following arrest—

(1)A person arrested on a warrant issued under section 34 or section 36 must, unless sooner discharged, be brought before a District Court as soon as possible.

(2)The person—

(a)is not entitled to bail as of right; and

(b)may not go at large without bail.

[(3)If the District Court remands the person on bail, the District Court may impose any conditions of bail that the District Court thinks fit in addition to any conditions that the District Court may impose under section 31(1) to (3) of the Bail Act 2000 (as applied by section 49 of that Act).]

(4)Without limiting the other factors that may be taken into account in making a decision to grant bail, the District Court must have regard to the following:

(a)the gravity of the alleged crimes:

(b)whether there are urgent and exceptional circumstances that favour the grant of bail; and

(c)whether necessary safeguards exist to ensure that New Zealand can fulfil its duty under the Statute to surrender the person to the ICC.

(5)Without limiting the other factors that may be taken into account in making a decision to grant bail, the District Court may not consider whether any warrant of arrest or judgment issued by the ICC was properly issued in accordance with the Statute.
Cf 1999 No 55 s 23(1)-(3); Statute, article 59(2)-(4)

40.
Procedure for bail—

(1)If an application for bail is made, the Minister must notify the ICC which may make recommendations to the Minister that must be conveyed to the District Court that is considering the application.

(2)Before rendering its decision, the District Court must consider any recommendations that the ICC has made, including any recommendations on measures to prevent the escape of the person.

(3)If the person is granted bail, the Minister must, if the ICC requests, provide periodic reports to the ICC on the person's bail status.

(4)This section applies with any necessary modifications to any bail application made during the period until the person is surrendered to the ICC or discharged according to law.

Cf 1999 No 55 s 44(1)-(3); Statute, article 59(2)-(6)

41.
Powers of District Court—

(1)In proceedings under this Part, except as expressly provided in this Act or in regulations made under section 179 or section 180,—

(a)a District Court has the same jurisdiction and powers, and must conduct the proceedings in the same manner, as if the person were charged with a summary offence alleged to have been committed within the jurisdiction of New Zealand; and

(b) the following provisions apply to the proceedings, so far as applicable and with the necessary modifications:
(i) Part 2 and sections 203, 204, and 206 of the Sum¬mary Proceedings Act 1957:
(ii) Parts 1 (except sections 9 to 12), 2, and 3 of the Bail Act 2000:
(iii) sections 38 to 44 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 .

(2)Despite section 4 of the Summary Proceedings Act 1957, a District Court presided over by 1 or more Justices or 1 or more Community Magistrates does not have jurisdiction to conduct proceedings under this Part.

(3)Despite subsections [(1) and (2)] of section 46 of the Summary Proceedings Act 1957, a decision to remand a person in custody or on bail may be made only by a Judge.

(4)Repealed.

(5) Section 184T of the Summary Proceedings Act 1957 and sections 52 and 54 of the Bail Act 2000 apply, so far as applicable and with the necessary modifications, to a person who is detained under section 46 or section 49.

(6) To avoid doubt, if an application is made for the variation of conditions of bail of a person who is detained under section 46 or section 49, the procedure in section 40(1) and (2) applies.

Cf 1999 No 55 s 43

42.
Detention in place other than prison—

(1)This section applies if the District Court orders the detention of a person at any time under this Part.

(2)If the District Court concludes that detaining the person in prison would risk the person's life or health or be undesirable for any reason, the District Court may order that the person be held in custody—

(a)at the place where the person is for the time being; or

(b)at any other place that the District Court considers appropriate, having regard to the risk or reason involved.

(3)The person may be held as specified in subsection (2) until—

(a)the person can be detained in a prison without risk to that person's life or health; or

(b)the reason for not detaining the person in prison no longer applies; or

(c)the person is surrendered or discharged according to law.

(4)In making the order specified in subsection (2), the District Court must have regard to any recommendations that the ICC may make regarding the place of the person's detention.

Cf 1999 No 55 s 52; Statute, article 59(5)

Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the
arrest and surrender of the person under Part 9.

Article 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional arrest or for arrest and surrender
shall immediately take steps to arrest the person in question in accordance with its laws and the
provisions of Part 9.
2. A person arrested shall be brought promptly before the competent judicial authority in the
custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person’s rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the custodial
State for interim release pending surrender.
4. In reaching a decision on any such application, the competent authority in the custodial
State shall consider whether, given the gravity of the alleged crimes, there are urgent and
exceptional circumstances to justify interim release and whether necessary safeguards exist to
ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be
open to the competent authority of the custodial State to consider whether the warrant of arrest
was properly issued in accordance with article 58, paragraph 1 (a) and (b).
5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make
recommendations to the competent authority in the custodial State. The competent authority in
the custodial State shall give full consideration to such recommendations, including any
recommendations on measures to prevent the escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber may request periodic
reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the
Court as soon as possible.

Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;
(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.