PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Appeals against determinations of eligibility for surrender

67.
Appeal on question of law only by way of case stated—

(1)This section applies if a District Court determines under section 43 that a person is or is not eligible for surrender in relation to any crime for which surrender is sought, and either party considers the determination erroneous in point of law.

(2)If this section applies, the party may appeal against the determination to the High Court by way of case stated for the opinion of the High Court on a question of law only.

(3)To lodge an appeal the party must, within 15 days after the determination, file in the office of the court that made the determination a notice of appeal in the prescribed form.

Cf 1999 No 55 s 68

68.
Application to appeal of certain provisions of Summary Proceedings Act 1957 [and Bail Act 2000]—

(1)The following provisions of the Summary Proceedings Act 1957 apply with any necessary modifications to an appeal under this Part as if it were an appeal under Part 4 of that Act against the determination by a District Court of an information or complaint:

(a)section 107(3) to (8) (appeal on question of law only by way of case stated):

(b)section 108 (no appeal on ground of improper admission or rejection of evidence):

(c)section 109 (District Court Judge or Justice may refuse a case if appeal frivolous):

(d)section 110 (certiorari not to be required when appeal upon case stated):

(e)section 111 (case may be sent back for amendment):

(f)section 113 (appeal on point of law may be removed into Court of Appeal):

(g)section 123 (powers of Judge of High Court as to extension of time):

(h)Repealed.

(i)section 129 (abandonment of appeal):

(j)section 130 (presentation of case by party in custody):

(k)section 131 (power of High Court to direct rehearing of information or complaint):

(l)section 133 (dismissal of appeal for non-prosecution):

(m)section 134 (registrar to certify decision on appeal):

(n)section 136 (custody of person after determination of appeal):

(o)section 143 (no Court fees payable on appeal by person sentenced to detention):

(p)section 144 (appeal to Court of Appeal).

(2)Section 47 of the Bail Act 2000 (which relates to the surrender of an appellant released on bail) applies with any necessary modifications to an appeal under this Part as if it were an appeal under Part 4 of the Summary Proceedings Act 1957 against the determination by a District Court of an information or complaint.

Cf 1999 No 55 s 69

69.
Custody pending determination of appeal—

(1)A District Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—

(a)the District Court makes a determination under section 43; and

(b)immediately after the District Court makes the determination, either party informs the District Court that the party intends to appeal against the determination.

(2)Any District Court or the High Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—

(a)a District Court makes a determination under section 43; and

(b)either party files a notice of appeal against the determination.

(3)If a person is detained under an order made under this section or is arrested and detained under a warrant issued under this section, sections 39 to 42 apply to the detention of the person with any necessary modifications as if the appeal proceedings were proceedings under section 43 to determine whether or not the person is eligible for surrender.

Cf 1999 No 55 s 70

70.
Waiver of rights to apply for habeas corpus or to lodge appeal—

Without limiting section 45, a person whose surrender is sought may, by a waiver in the prescribed form, waive the following rights:

(a)the right to make an application for a writ of habeas corpus within 15 days after the issue of a warrant of detention; and

(b)the right, in relation to any international crime or crimes for which the District Court has determined that the person is eligible for surrender, to lodge an appeal under this Part.

Cf 1999 No 55 s 71

71.
Powers of court on appeal—

(1)The High Court must hear and determine the question or questions of law arising on any case transmitted to it, and do 1 or more of the following things:

(a)reverse, confirm, or amend the determination in respect of which the case has been stated:

(b)remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:

(c)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:

(d)make any other order in relation to the determination that it thinks fit.

(2)In hearing and determining the question or questions of law arising on any case transmitted to it, the High Court—

(a)must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against; and

(b)may in the same proceeding hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.

Cf 1999 No 55 s 72

72.
Further provisions relating to powers of court on appeal—

(1)If the appeal is against a determination that a person is eligible for surrender, and the High Court reverses the determination in respect of which the case has been stated, the High Court must also either—

(a)discharge the person; or

(b)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard.

(2)If the appeal is against a determination that a person is eligible for surrender in respect of 2 or more international crimes, and the High Court determines that the determination includes an error of law that relates to only 1 or some of those international crimes, the High Court may amend the determination and—

(a)discharge the person in respect of that international crime or those international crimes; or

(b)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard in respect of that international crime or those international crimes.

(3)Despite subsections (1) and (2), if an appeal is against a determination that a person is eligible for surrender, and the High Court determines that there has been an error of law, it may nevertheless decline to reverse or amend the determination in respect of which the case has been stated if it considers that no substantial wrong or miscarriage of justice has occurred and that the determination ought to be upheld.

(4)If the appeal is against a determination that a person is not eligible for surrender, and the High Court determines that the determination includes an error of law, the High Court may—

(a)exercise the powers of a District Court under section 46 as if it were a District Court, although subsection (2)(c) of that section does not apply:

(b)if it remits the determination to the District Court, issue a warrant for the arrest and detention of the person pending the District Court's reconsideration of the determination or rehearing of the proceedings to determine whether the person is eligible for surrender; and section 69(3) applies to any warrant issued under this paragraph as if the warrant were issued under that section.

(5)Subsections (1), (2), and (4) do not limit section 71.

Cf 1999 No 55 s 73

Article 20
Ne bis in idem
1. Except as provided in this Statute, no person shall be tried before the Court with
respect to conduct which formed the basis of crimes for which the person has been
convicted or acquitted by the Court.
2. No person shall be tried by another court for a crime referred to in article 5 for
which that person has already been convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct also proscribed under
article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless
the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance
with the norms of due process recognized by international law and were
conducted in a manner which, in the circumstances, was inconsistent with
an intent to bring the person concerned to justice.

Article 82
Appeal against other decisions
1. Either party may appeal any of the following decisions in accordance with
the Rules of Procedure and Evidence:

(b) A decision granting or denying release of the person being investigated or
prosecuted;