PART IV – ARREST AND SURRENDER OF PERSONS

11. Endorsement of warrant of arrest

(1) Any request from the International Criminal Court for the arrest or provisional arrest and surrender of a person for whom a warrant of arrest has been issued by the International Criminal Court shall be directed to the Attorney-General and accompanied by –

(a) sufficient information, describing the person sought, to identify the person;
(b) information as to that person’s probable location ;
(c) a copy of the warrant of arrest issued by the International Criminal Court; and
(d) such other documents as may be necessary to satisfy a Judge that there is sufficient ground for the surrender of that person to the International Criminal Court .
(2) The Attorney-General shall, on receipt of that request, forward it and the accompanying documents to a Judge, who shall endorse the warrant of arrest for execution in Mauritius

PART IV – ARREST AND SURRENDER OF PERSONS

12. Provisional warrant

(1) Where the Attorney-General receives a request in relation to an urgent case from the International Criminal Court for the provisional arrest of a person who is suspected or accused of having committed an offence contemplated in the Statute, or who has been convicted by the International Criminal Court of such an offence, the Attorney-General shall apply for a warrant of arrest for that person.

(2) On an application by the Director of Public Prosecutions Attorney-General stating under oath that he has reason to believe that –
(a) the request of the International Criminal Court has been made on grounds of urgency for the arrest of a person who is suspected or accused of having committed an offence contemplated in the Statute or who has been convicted by the International Criminal Court;
(b) a warrant of arrest has been issued, or a judgment of conviction has been delivered, against the person in question;
(c) a formal request for the surrender of the person to the International Criminal Court will be made subsequently
(d) the person concerned is in, or on his way to, Mauritius; and
(e) the purpose of the arrest is –
(i) to bring the person concerned before the International Criminal Court to stand trial; or
(ii) to take him to a place where he is to undergo imprisonment under a sentence of the International Criminal Court,
as the case may be,
a Magistrate may issue a warrant for the arrest of that person and notify the Attorney- General that a warrant has been issued.

(3) The warrant shall contain –
(a) sufficient information, describing the person sought, to identify the person, and information as to that person’s probable location;
(b) a concise statement of the offence for which the person’s arrest is sought and of the facts which are alleged to constitute that offence, including, where possible, the date and location of the offence;
(c) a statement of the existence of a warrant of arrest or a judgment of conviction against the person sought; and
(d) a statement that a request for surrender of the person sought will follow

PART IV – ARREST AND SURRENDER OF PERSONS

13. Postponement of execution of request

(1) The Attorney-General shall not postpone the execution of a request for arrest and surrender at any time before the surrender of the person, unless the request would interfere with an investigation or prosecution in Mauritius involving a different offence from that for which surrender is requested.

(2) The Attorney-General shall consult with the International Criminal Court and agree on a period of time for postponement of the execution of the request in accordance with Article 94 of the Statute, and the Attorney-General shall proceed with the execution of the request after the lapse of that period, unless otherwise agreed with the International Criminal Court.

(3) Where the Attorney-General decides to postpone the execution of a request for arrest and surrender in accordance with this section after he has forwarded a request pursuant to section 11 or 12, he shall –
(a) notify the Magistrate of the postponement and the Magistrate shall adjourn any pending proceedings until further notice from the Attorney-General; and
(b) notify the Magistrate at the relevant time whether the execution of the request is to proceed or not, and the Magistrate shall proceed accordingly with the execution of the request or the discharge of the person.

(4) A decision by the Attorney-General to postpone the execution of a request shall not affect the validity of any act that has been done or any warrant or order made under this Part prior to the decision, and any such warrant or order shall remain in force unless cancelled by the International Criminal Court

PART V - CO-OPERATION AND JUDICIAL ASSISTANCE

22. Request for assistance in obtaining evidence

(1) A request by the International Criminal Court for assistance in obtaining evidence in Mauritius for use in the International Criminal Court shall be submitted in writing to the Attorney-General.

(2) On receipt of such request, the Attorney-General shall satisfy himself that –
(a) proceedings have been instituted in the International Criminal Court; or
(b) there are reasonable grounds for believing that an international crime within the jurisdiction of the International Criminal Court has been committed; or
(c) an investigation in respect of the alleged crime is being conducted by the Prosecutor of the International Criminal Court .

(3) For the purposes of subsection (2), the Attorney-General may rely on a certificate issued by a Judge of the International Criminal Court or the Prosecutor of the International Criminal Court, confirming one or more of the requirements referred to in subsection (2).

(4) Where the Attorney-General is satisfied that one or more of the requirements referred to in subsection (2) have been complied with, he shall submit the request referred to in subsection (1) to the Magistrate within whose area of jurisdiction the witness resides or is believed to be present, as well as to the Director of Public Prosecutions

PART V - CO-OPERATION AND JUDICIAL ASSISTANCE

28. Securing attendance of witnesses

(1) Every summons issued by a Judge or the Prosecutor of the International Criminal Court for the attendance of a person in any proceedings before the International Criminal Court shall be transmitted to the Attorney-General.
(2) On receipt of a summons, the Attorney-General shall immediately transmit it to the Magistrate within whose area of jurisdiction the person resides or is present.
(3) The Magistrate shall, if satisfied that the summons was issued by the International Criminal Court, endorse it for service upon such person, and the endorsed summons may be served as if it were a summons issued by the Magistrate.
(4) A return of service indicating that the summons was properly served on the person concerned, together with a certificate by the Magistrate to the effect that such person failed to appear at the time and place specified in the summons, shall be prima facie proof that the said person failed to appear before the International Criminal Court.

PART V - CO-OPERATION AND JUDICIAL ASSISTANCE

29. Transfer of prisoner to give evidence or to assist in investigation

(1) Where the Attorney-General receives a request from the International Criminal Court or from its Prosecutor for the transfer of a prisoner in Mauritius into the custody of the International Criminal Court, for the purpose of giving evidence or assisting in an investigation, the Attorney-General shall transmit the request to the Commissioner of Prisons.
(2) Where the prisoner consents to the transfer, the Commissioner of Prisons may issue a warrant for the transfer of the prisoner into the custody of the International Criminal Court, in accordance with the arrangements made with the Registrar or the Prosecutor of the International Criminal Court.
(3) Any period of imprisonment served in the custody of the International Criminal Court by a prisoner transferred under this section shall be regarded as a period of imprisonment served in Mauritius for the purposes of calculating the remaining term of imprisonment of that person.
(4) The Commissioner of Prisons shall, where it appears that the term of imprisonment of the transferred prisoner will expire while that prisoner is still in the custody of the International Criminal Court, inform the Registrar of the Court in writing of the date on which that term of imprisonment will expire.

PART VI – OTHER FORMS OF ASSISTANCE

32. Request for enforcement of fine or forfeiture order

(1) Where the Attorney-General receives a request from the International Criminal Court for the enforcement of a fine or any order for forfeiture in Mauritius, he shall lodge with the Master and Registrar or present a certified copy of the order if where he is satisfied that the order is not subject to any review or appeal and that the request is supported by –
(a) a concise statement of the purpose of the request, and the assistance sought, including the legal basis and the ground for the request;
(b) as much information as possible about the location or identification of any person or place that shall be found in order for the assistance sought to be provided;
(c) a concise statement of the essential facts underlying the request;
(d) the reasons for and details of any procedure or requirement to be followed;
(e) such information as may be required by the law of Mauritius in order to execute the request; and
(f) any other information that is available and may be relevant in the
circumstances.

(2) The Master and Registrar with whom a certified copy of a request order is lodged under subsection (1) shall register such order in respect of the persons or items specified therein

PART VI - OTHER FORMS OF ASSISTANCE

34. Registration of sentence or compensatory order

(1) Where the Attorney-General receives a request from the International Criminal Court for assistance in Mauritius to recover a fine to which a person has been sentenced in criminal proceedings in the International Criminal Court, or for the execution of an order for the payment of compensation for damages to any person made in such proceedings, he shall ascertain that –
(a) the sentence or order is final and not subject to review or appeal ;
(b) the person on whom the sentence was imposed or against whom the order was made, had the opportunity of defending himself ;
(c) the sentence or order cannot be satisfied in full except by confiscating and realising property; and
(d) the person concerned holds property in Mauritius.

(2) On being satisfied of the requirements of under subsection (1), the Attorney- General shall lodge with the Clerk of a Court in Mauritius having jurisdiction or the Master and Registrar, as the case may be, a certified copy of the document confirming the sentence or order.

(3) The Clerk of the Court or the Master and Registrar, as the case may be, shall forthwith give written notice of the registration of the sentence or order to the person on whom it was imposed or against whom it was made or who has effective control over the relevant property in Mauritius

PART VI - OTHER FORMS OF ASSISTANCE

38. Entry, search and seizure

(1) The International Criminal Court or the Prosecutor of the International Criminal Court shall submit any request for assistance in the entering and searching of premises, the search of a person and the seizure of a book, document or object that has a bearing on a crime or an offence committed within the jurisdiction of the International Criminal Court, to the Attorney-General in writing.

(2) The request shall contain sufficient information that there is reasonable ground for believing that the entry, search or seizure of the book, documents or object has a bearing on a crime or an offence committed within the jurisdiction of the International Criminal Court or that such entry, search or seizure of a book, document or object is necessary to determine if such a crime or such an offence has been so committed and that an investigation in that respect is being conducted by the Prosecutor of the International Criminal Court .

(3) On receipt of such a request, the Attorney-General shall forward it to the Commissioner of Police with a view to obtaining the necessary warrant required in the circumstances.

(4) A Magistrate may, if it appears to him from the information submitted that there is reasonable ground for believing that any book, document or object, which has a bearing on the investigation concerned, is in the possession or under the control of any person or on or in any premises within the Magistrate’s area of jurisdiction, issue the necessary warrant required in the circumstances.

(5) The warrant shall clearly specify the acts which may be performed under it by the police officer to whom it is issued.

(6) The warrant shall remain valid until –
(a) it is executed;
(b) it is cancelled by the person who issued it or by any person with similar authority;
(c) the expiry of 3 months from the date of its issue; or
(d) the purpose for which the warrant was issued no longer exists, whichever may occur first.

(7) A police officer shall, immediately before executing the warrant –
(a) identify himself to the person referred to in the warrant or the owner or person in control of the premises, if the person is present;
(b) hand over to the person a copy of the warrant or, if the person is not present, affix that copy to a prominent place on the premises; and
(c) supply the person at his request with particulars regarding his authority to execute the warrant.

(8) Every entry, search and seizure under this section shall be –
(a) conducted with strict regard to decency and order, including the protection of a person’s right to dignity, freedom, security and privacy; and
(b) executed by day unless the execution by night is justifiable and necessary.

(9) The seizure of a book, document or object under this section shall be effected by removing it from the premises concerned or, if that removal is not reasonably practicable, by sealing or otherwise safeguarding it on or in the premises.

(10) A police officer who may under this section enter and search any premises –
(a) shall, immediately before the entry, demand admission to the premises and make known the purpose of the entry and search, unless there is reasonable ground for believing that a book, document or object in respect of which the search is being conducted, may be destroyed, disposed of or tampered with if that admission is first demanded and that purpose is made known;
(b) may use such force as is reasonably necessary to overcome resistance to the entry or search or the seizure of a book, document or object under this section;
(c) may utilise or request the assistance of any person to identify any book, document or object which has a bearing on the alleged crime or offence or to conduct the entry or search or the seizure of any book, document or object under this section.

(11) A person from whose possession or control a book, document or object has been removed under this section may, at his own expense and under the supervision of a police officer, make a copy or take an extract from it.

(12) A police officer who removes a book, document or object from any premises under this section shall issue a receipt to the person who is the owner, or in possession or in control, of the premises or, if that person is not present, affix it to a prominent place on the premises.

(13) Where, during the conduct of a search or the carrying out of a seizure under this section, a person claims that a book, document or object found on or in the premises contains privileged information and refuses the examination or removal of the book, document or object, the police officer conducting the search or carrying out the seizure shall, if he is of the opinion that the book, document or object contains information which has a bearing on the alleged crime or offence, seize the book, document or object and submit it to the Magistrate having jurisdiction for safe custody until a Court has made a ruling on the question whether the information is privileged or not.

(14) Where the information is found not to be privileged, the book, document or object seized under this section shall be handed over to the International Criminal Court or the Prosecutor of the International Criminal Court.

(15) Where criminal proceedings, in respect of which a book, document or object has been seized under this section, are not instituted within a reasonable time after the seizure or it appears that the book, document or object is not required in criminal proceedings for the purposes of evidence or an order of the International Criminal Court, the Attorney-General shall request the International Criminal
Court or the Prosecutor of the International Criminal Court to return the book, document or object to the person from whom it was seized.

PART II - REQUESTS

4. Request from Mauritius

(1) The Central Authority may make a request on behalf of Mauritius to the competent authority of a foreign State, or to an international criminal tribunal, for mutual assistance in any proceedings commenced in Mauritius in relation to a serious offence.

(2) A request under subsection (1) may require the foreign State or, as the case may be, the international criminal tribunal, to provide such assistance as may be specified in the request and, in particular to -

(a) have evidence taken, a statement or information taken, or documents or other articles produced ;
(b) have evidence taken by means of technology that permits the virtual presence of the person in Mauritius ;
(c) obtain and execute a search warrant, or other lawful instrument, authorising a search for things believed to be located in the foreign State, which may be relevant to the proceedings, and if found, seize them ;
(d) locate or restrain any property reasonably believed to be the proceeds of a serious offence and located in the foreign Stat;
(e) confiscate any property reasonably believed to be located in the foreign State, which is the subject of a confiscation order made by a Court in Mauritius and transmit such property or, any proceeds realised therefrom, to Mauritiu;
(f) take measures for the freezing or confiscation of proceeds of a serious offence ;
(g) permit the presence of an authorised person during the execution of any request made under this section ;
(h) effect service of documents ;
(i) examine any person with his consent, any object or any site ;
(j) locate and identify persons;
(k) facilitate the appearance of witnesses or the attendance of persons in proceedings, subject to such practical and financial arrangements as may be agreed upon ;
(l) transfer in custody to Mauritius a person detained in the foreign State, or by the international criminal tribunal, who consents to give evidence or to assist Mauritius in the proceedings ; and
(m) transmit to Mauritius any evidence, statement, report, information, whether in original or a certified copy, document, article, thing or property referred to in this subsection.

(3) A request under subsection (1) shall be in writing and shall -

(a) give the name of the requesting authority ;
(b) give the name of the authority conducting the proceedings to which the request relates ;
(c) give a description of the nature of the proceedings and a statement setting out a summary of the relevant facts and laws ;
(d) explain the purpose of the request and the nature of the assistance being sought ;
(e) give details of any procedure which is required to be followed to comply with the laws of Mauritius ;
(f) where appropriate, include a statement setting out any wish as to confidentiality of the request and the reasons for that wish ;
(g) indicate any time limit within which compliance with the request is desired, stating reasons ;
(h) indicate the name and address of the person to be served, where necessary ;
(i) give any other information that may assist in giving effect to the request ;
(j) be supplemented with such other procedures, formalities, and information as may be required by the foreign State to give effect to the request ; and
(k) where necessary, be accompanied by a translation into the official language of the foreign State.

5. Request to Mauritius

(1) A foreign State may, in relation to a serious offence, and an international criminal tribunal may, in relation to an international criminal tribunal offence, make a request for assistance to the Central Authority in any proceedings commenced in the foreign State or before the international criminal tribunal, as the case may be.

(2) The Central Authority may, in respect of a request under subsection (1) from a foreign State -

(a) promptly grant the request, in whole or in part, on such terms and conditions as it thinks fit or refer the matter to the appropriate authority for prompt execution of the request, in which case the Central Authority may represent the foreign State in proceedings entered to give effect to the request ;

(b) refuse the request, in whole or in part, on the ground -
(i) that compliance with the request would be contrary to the Constitution ;
(ii) of prejudice to the sovereignty, international relations, security, public order, or other public interest of Mauritius ;
(iii) of reasonable belief that the request for assistance has been made for the purpose of prosecuting a person on account of that person's race, sex, religion, nationality, ethnic origin or political opinions, or that a person's position may be prejudiced for any of those reasons ;
(iv) of absence of dual criminality, where granting the request would require a court in Mauritius to make an order in respect of any person or property in respect of conduct which does not constitute an offence, nor gives rise to a confiscation or restraining order, in Mauritius ;
(v) that the request relates to an offence under military law, or a law relating to military obligations, which would not be an offence under ordinary criminal law ;
(vi) that the request relates to a political offence or an offence of a political character ;
(vii) that the request relates to an offence, the prosecution of which, in the foreign State, would be incompatible with laws of Mauritius on double jeopardy ;
(viii) that the request requires Mauritius to carry out measures that are inconsistent with its laws and practice, or that cannot be taken in respect of criminal matters arising in Mauritius ; or
(c) after consulting with the competent authority of the foreign State, postpone granting the request in whole or in part, on the ground that granting the request immediately would be likely to prejudice the conduct of proceedings in Mauritius.

(3) The Central Authority may, in respect of a request under subsection (1) from an international criminal tribunal, grant the request, in whole or in part, on such terms and conditions as it thinks fit.

(4) A request under subsection (1) -

(a) may relate to any matter referred to in section 4(2) ; and
(b) shall contain such appropriate particulars as are referred to in section 4(3).

(5) A request shall not be invalidated for the purpose of this Act or any legal proceedings by virtue of any failure to comply with section 4(3), where the Central Authority is satisfied that there is sufficient compliance to enable him to execute the request.

(6) Where the Central Authority refuses a request, either in whole or in part, he shall so inform the foreign State or the international criminal tribunal.

(7) For the purpose of a request referred to in subsection (4), any reference in section 4(2) or (3) to a foreign State or to Mauritius shall be construed as a reference to Mauritius or the foreign State, as the case may be.


PART III - FORMS OF MUTUAL ASSISTANCE

6. Procedure for an evidence-gathering order or a search warrant

(1)Notwithstanding any other enactment, where the Central Authority grants a request by a foreign State, or an international criminal tribunal, to obtain evidence or a search warrant in Mauritius, the Central Authority may apply to a Judge in Chambers for -

(a) an evidence-gathering order ; or
(b) a search warrant for the search of a person or premises, and removal or seizure of any document or article.

(2) Subject to section 5(5), a request by a foreign State, or an international criminal tribunal, for an evidence-gathering order shall -

(a) comply with the requirements in section 4(3) ;

(b) specify -
(i) the name and address or the official designation of the person to be examined ;
(ii) the question to be put to the person or the subject matter about which he is to be examined ;
(iii) whether it is desired that the person be examined orally or in writing ;
(iv) whether it is desired that an oath be administered to the person ;
(v) any provision of the law of the foreign State as to privilege or exemption from giving evidence which appears especially relevant to the request ; and
(vi) any special requirements of the law of the foreign State as to the manner of taking evidence relevant to its admissibility in that State ;
(vii) the document, record or property to be inspected, preserved, photographed, copied or transmitted ;
(viii) the property of which samples are to be taken, examined or transmitted ; and
(ix) the site to be viewed or photographed.

(3) A request by a foreign State or an international criminal tribunal for a search warrant shall -

(a) comply with the requirements in section 4(3) ;
(b) specify the property to be searched for and seized ; and
(c) contain such information available to the foreign State or international criminal tribunal, as the case may be, as may be required for the purpose of the application.

(4)(a) Subject to subsection (9), the Judge in Chambers shall grant an application for an evidence-gathering order where he is satisfied that there are reasonable grounds to believe that -

(i) a serious offence has been or may have been committed against the law of the foreign State or an international criminal tribunal offence has been or may have been committed ; and
(ii) evidence relating to an offence referred to in subparagraph (i) may be -

(A) found in Mauritius ; or
(B) given or produced by a person believed to be in Mauritius.

(b) The Judge in Chambers shall not grant an application for a search warrant where it would, in all the circumstances, be more appropriate to grant an evidence-gathering order.

(5) For the purposes of subsection (4)(a)(i), a statement contained in the request to the effect that -

(a) a serious offence has been or may have been committed against a law of the foreign State ; or
(b) an international criminal tribunal offence has been or may have been committed,
shall be prima facie evidence of that fact.

(6) An evidence-gathering order-

(a) shall provide for the manner in which the evidence is to be obtained in order to give effect to the request and may require any person named therein to-

(i) make a record from data or make a copy of a record ;
(ii) attend before the Master and Registrar to give evidence ; and
(iii) produce to the Judge in Chambers, or to any other person designated by him, any article, including any document, or copy thereof ; or

(b) may include such terms and conditions as the Judge in Chambers considers desirable, including those relating to -

(i) the interests of the person named therein or of third parties ; or
(ii) the questioning of the person named therein by any representative of the foreign state or international tribunal, as the case may be.

(7) Subject to subsections (8) and (9), a person named in an evidence-gathering order may refuse to answer a question, or to produce a document or article, where the refusal is based on -

(a) an enactment which permits the person to decline to give evidence in similar circumstances in proceedings originating in Mauritius or a privilege recognised by the law in Mauritius ;
(b) a privilege recognised by a law in force in the foreign State that made the request ; or
(c) a law currently in force in the foreign State that would render the answering of that question, or the production of that document or article by that person, in his own jurisdiction, an offence.

(8) (a) Where a person refuses to answer a question or to produce a document or article pursuant to subsection (7)(b) or (c), the Central Authority shall notify the foreign State and request the foreign State to provide a written statement on whether the person’s refusal was well-founded under the law of the foreign State.

(b) A written statement received by the Central Authority from the foreign State in response to a request under paragraph (a) shall be admissible before the Judge in Chambers and, for the purposes of this section, be conclusive evidence that the person’s refusal is, or is not, well-founded under the law of that state.

(c) Any person who, without reasonable excuse, refuses to comply with an order of a Judge in Chambers made under this section or who, having refused to answer a question or to produce a document or article on a ground specified in subsection (7), continues to refuse notwithstanding the admission into evidence of a statement under paragraph (b) to the effect that the refusal is not well-founded, shall be in contempt of court.

(9) Notwithstanding section 26 of the Bank of Mauritius Act 2004, section 64 of the Banking Act 2004 and section 33 of the Financial Services Development Act 2001 and subsections (7) and (8), a Judge in Chambers hearing a request from a foreign State or an international criminal tribunal may grant an evidence-gathering order or search warrant against the Bank of Mauritius, a bank or financial institution where he is satisfied that -

(a) the information is material and necessary to the proceedings in the foreign State or before the international criminal tribunal ; and
(b) the law of the foreign State permits the disclosure of information to foreign States in circumstances similar to the one relating to the request.

(10) The Central Authority shall inform the foreign State of the date and place of the taking of evidence pursuant to this section.

(11) The Judge in Chambers may authorise the presence of representatives of the foreign State, and of parties to the relevant proceedings in the foreign State, at the proceedings under this section.

(12) The Central Authority shall provide such authenticated report as may be required by the foreign State, or international criminal tribunal, concerning -

(a) the result of any search ;
(b) the place and circumstances of seizure ; and
(c) the subsequent custody of the property seized.


7. Foreign request for a virtual evidence-gathering order

(1) Where the Central Authority grants a request by a foreign State, or an international criminal tribunal, to order a person to give evidence by means of technology that permits the virtual presence of the person in the territory over which the foreign State has jurisdiction or in the International Criminal Tribunal, it may apply to a Judge in Chambers for an order for the taking of the virtual evidence of the person.

(2) Where there exist in Mauritius facilities for the taking of evidence by technology permitting the virtual presence of a person in the foreign State, the Judge in Chambers shall grant the application where he is satisfied that there are reasonable grounds to believe that -

(a) a serious offence has been or may have been committed against the law of the foreign State or, as the case may be, an international criminal tribunal offence has been or may have been committed ; and
(b) evidence relating to an offence referred to in paragraph (a) may be given by a person believed to be in Mauritius.

(3) A virtual evidence-gathering order made under subsection (2) may require any person named therein to-

(a) attend at a time and place fixed by the Judge in Chambers to give evidence by means of the technology ;
(b) answer any question put to him by the foreign State, or the international criminal tribunal, or a person authorised by any of them in accordance with the law that applies to that State, or to the tribunal ; and
(c) produce at the time and place fixed by the Judge in Chambers, or exhibit, any article, including a document, by means of the technology.

(4) Where a witness gives evidence under subsection (3) -

(a) the evidence shall be given as though the witness were physically before the court, or tribunal, outside Mauritius for the purposes of the laws relating to evidence and procedure, but only to the extent that giving the evidence would not entail disclosure of information otherwise protected by any law on non-disclosure of information or privilege ;
(b) the law of Mauritius relating to perjury shall apply with respect to any evidence given by the person as though the person was a witness before a court in Mauritius.

(5) Where a witness refuses -

(a) to attend at the time and place fixed by the Judge in Chambers ; or
(b) to answer a question, or produce, or show a document or article as ordered by the Judge in Chambers under subsection (3),
he shall be in contempt of the court.