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 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.

Compare: 1999 No 55 s 20; Statute art 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).

Compare: 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).

Compare: 1999 No 55 s 23(4); Statute art 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 30(1), (2), and (4) of the Bail Act 2000.

(4) Without limiting the other factors that may be taken into ac-count 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.

Compare: 1999 No 55 s 23(1)–(3); Statute art 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.

Compare: 1999 No 55 s 44(1)–(3); Statute art 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 category 1 or 2 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) subparts 1 and 3 of Part 4, Part 5, and sections 365 and 379 of the Criminal Procedure Act 2011:
(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) In accordance with section 355 of the Criminal Procedure Act 2011, 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 section 168(1) and (2) of the Criminal Procedure Act 2011, a decision to remand a person in custody or on bail may be made only by a Judge.

(4) [Repealed]

(5) Section 169 of the Criminal Procedure Act 2011 and sections 27, 30 to 33, 35, 37 to 39, 44, 45, and 52 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.

Compare: 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.

Compare: 1999 No 55 s 52; Statute art 59(5)

Part 2
Arrest and surrender of person to a Tribunal

Arrest of persons

9 Remand

(1) A person who is arrested under a warrant issued under section 7 shall, unless the warrant ceases to have effect under section 8, be brought before a Judge as soon as is practicable.

(2) Subject to subsection (3), the Judge shall remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney-General to make a surrender determination under section 12.

Where any person is remanded in custody or on bail under this section, the provisions of sections 167 to 169 of the Criminal Procedure Act 2011 and sections 28, 30 to 32, 34 and 35, and 37 to 39 of the Bail Act 2000 shall apply as if the person had been arrested for an offence punishable by imprisonment and with any other necessary modifications.