Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004
Case name

Prosecutor v Alex Tamba Brima & Ors - Decision on Prosecution Appeal Against Decision on Oral Application for Witness Tf1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality
Law report citations
Media neutral citation
[2006] SCSL 2


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

PHONE: +1 212 963 9915
Extension: 178 7000 or +39 0831 257000 or +232 22 295995

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295996


THE APPEALS CHAMBER


Before:
Justice Raja Fernando, Presiding
Justice George Gelaga King
Justice
Emmanuel Ayoola
Justice Renate Winter
Justice Geoffrey Robertson, QC


Interim Registrar:
Mr. Lovemore Munlo, SC
Date:
26 May 2006
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

(Case No.SCSL-2004-16-AR73)


DECISION ON PROSECUTION APPEAL AGAINST DECISION ON ORAL
APPLICATION FOR WITNESS TF1-150 TO TESTIFY WITHOUT BEING COMPELLED TO ANSWER
QUESTIONS ON GROUNDS OF CONFIDENTIALITY


Office of the Prosecutor:
Luc Côté, Lesley
Taylor,
Nina Jørgensen, Melissa Pack
Defence Counsel for Alex Tamba Brima:
Glenna
Thompson, Kojo Graham

Amici Curiae
Defence Counsel for Brima Bazzy
Kamara:

Andrew K. Daniels, Mohammed Pa-Momo Fofanah
Human Rights Watch,
UN High Commissioner for Human Rights,
Amnesty
International
Defence Counsel for Santigie Borbor Kanu:
Geert-Jan
Alexander Knoops, Carry Knoops, Abibola E. Manly-Spain


THE APPEALS CHAMBER (“Appeals Chamber”) of the Special
Court for Sierra Leone (“Special Court”) composed of Justice Raja
Fernando,
Presiding Judge, Justice Gelaga King, Justice Emmanuel Ayoola, Justice
Renate Winter, and Justice Geoffrey Robertson, QC;


BEING SEISED OF the “Prosecution Appeal Against Decision on Oral
Application for Witness TF1-150 to Testify Without Being Compelled to Answer
Questions on Grounds of Confidentiality” (the “Prosecution
Appeal”), filed by the Prosecution on 19 October 2005
pursuant to Rule
73(B) of the Rules of Procedure and Evidence of the Special Court
(“Rules”);


CONSIDERING the “Decision on the Prosecution’s Oral
Application for Leave to be Granted to Witness TF1-150 to Testify without being
Compelled to Answer any Questions in Cross-Examination that the Witness Declines
to Answer on Grounds of Confidentiality Pursuant
to Rule 70(B) and (D) of the
Rules,” rendered by Trial Chamber II on 16 September 2005 (the
“Impugned
Decision”);[1]


NOTING (i) the Order of the President of 24 November 2005 assigning
the matter to the full bench of the Appeals Chamber; (ii) the Order
Appointing Human Rights Watch as Amicus Curiae filed by the
Appeals Chamber on 24 November 2005; (iii) the Order Appointing the
United Nations High Commissioner for Human Rights as Amicus Curiae filed
by the Appeals Chamber on 28 November 2005; and (iv) the Order Appointing
Amnesty International as Amicus Curiae filed by the Appeals Chamber on 2
December 2005, and its Corrigendum of 5 December 2005;


CONSIDERING ALSO:

(i) The “Joint Defence Response to Prosecution Appeal Against Decision on
Oral Application for Witness TF1-150 to Testify without
Being Compelled to
Answer Questions on Grounds of Confidentiality” filed by the three
Defendants on 27 October 2005 (the “Joint
Defence Response to Prosecution
Appeal”);



(ii) The “Reply to Joint Defence Response to Prosecution Appeal Against
Decision on Oral Application for Witness TF1-150 to
Testify without Being
Compelled to Answer Questions on Grounds of Confidentiality,” filed by the
Prosecution on 31 October
2005 (the “Prosecution Reply”);



(iii) The “Amicus Curiae Submission Filed under Rule 74 of the
Rules of Procedure and Evidence of the Special court for Sierra Leone on Behalf
of Human Rights
Watch,” (the “Human Rights Watch Brief”); the
Amicus Curiae Brief of the United Nations High Commissioner for
Human Rights,” (the “UNHCHR Brief”); the “Amicus
Curiae
Brief of Amnesty International Concerning the Public Interest
Information Privilege,” (the “Amnesty International Brief”)
all, severally, filed on 16 December 2005;

(iv) The “Joint Defence Response to Amicus Curiae
Briefs By Human Rights Watch, Amnesty International and the United Nations High
Commissioner for Human rights,” filed by the
three Defendants on 17
January 2006 (the “Joint Defence Response to Amicus Briefs”);


NOW DETERMINES THIS APPEAL ON THE BASIS OF THE WRITTEN
SUBMISSIONS:



I. INTRODUCTION


  1. The
    Prosecution has appealed the Impugned Decision in which a majority of Trial
    Chamber II declined to issue an order guaranteeing
    that Witness TF1-150, a human
    rights officer with the United Nations, would not be compelled to answer any
    questions in cross-examination
    identifying his confidential sources.
  2. Witness
    TF1-150 is a foreign national who served as a United Nations human rights
    officer in Sierra Leone from 1998 to 2001. By virtue
    of his employment, Witness
    TF1-150 enjoyed immunity from legal process. By letter dated 23 May 2005, the
    United Nations waived this
    immunity in order to enable TF1-150 to testify for
    the Prosecution in a number of cases before the Special Court. Given the
    sensitive
    and confidential nature of the witness’s testimony, this waiver
    was conditioned upon the witness testifying in closed session,
    a condition that
    was granted by the Trial
    Chamber.[2] Prior to
    calling the witness to testify, the Prosecution requested the Trial Chamber to
    guarantee that Witness TF1-150 would not
    be compelled to answer any questions in
    cross-examination relating to the names of his confidential informants or
    sources.
  3. In
    the Impugned Decision, the Trial Chamber found that Rule
    70[3] did not apply to
    the witness or his testimony because the Prosecution failed to show, as a
    necessary precondition to the application
    of Rule 70, that it was in possession
    of the “initial information” and because the Witness was the
    recipient and not
    the originator of the
    information.[4] Although
    the Trial Chamber recognized the special relationship between a human rights
    officer and his informants, as well as the
    public interest that attaches to the
    work of human rights officers gathering information in the field, the Trial
    Chamber found that
    these factors did not outweigh the rights of the accused
    persons to a fair trial as guaranteed by Article 17 of the Statute of the
    Special Court.[5] The
    Trial Chamber also considered that the protective measure of hearing the witness
    in closed session pursuant to Rule 79 of the
    Rules was sufficient to maintain
    the confidentiality of the witness’s
    testimony.[6]
  4. The
    Prosecution appealed from the impugned decision on three grounds, namely,
    that:
    1. The
      majority erred in law in the interpretation and construction of Rule 70(B) and
      Rule 70(D) of the
      Rules;[7]
    2. The
      majority erred in law in distinguishing and finding inapplicable the Public
      Version of the Confidential Decision on the Interpretation
      and Application of
      Rule 70 in the Milošević
      case;[8] and
    3. The
      balancing exercise to be carried out by the Chamber was incorrectly formulated
      and that the majority erred in law in balancing
      the public interest attaching to
      the work of human rights officers with the rights of the accused to a fair
      trial.[9]
  5. The
    two main issues that arise from these three grounds of appeal are: whether Rule
    70(B) and Rule 70(D) are applicable to the Prosecution’s
    request; and,
    whether the majority decision was correct in balancing the public interest
    attaching to the work of human rights officers
    with the rights of the accused
    persons to a fair trial.

II. SUBMISSIONS OF THE PARTIES AND THE AMICI
CURIAE


A. Are Rule 70(B) and Rule 70(D) applicable to the Prosecution’s
request?


  1. The
    Prosecution submitted that the Trial Chamber erred in holding that Rule 70 was
    not applicable to Witness TF1-150 or his testimony
    on the ground that the
    witness’s sources were not “information which has been
    provided” to the Prosecution within
    the meaning of Rule 70
    (B).[10] The
    Prosecution relied on a decision of the Appeals Chamber of the International
    Criminal Tribunal for the former Yugoslavia (ICTY),
    which held that “[t]he
    fact that information is provided in the form of testimony does not exclude it
    from being ‘information’
    or ‘initial information’
    provided under the
    Rule”[11] to
    argue that the provision of information in the form of witness testimony on a
    confidential basis constitutes “information
    ... provided... on a
    confidential basis” within the meaning of Rule 70(B) triggering the
    application of Rule 70 in its
    entirety.[12]
  2. The
    Prosecution also drew a distinction between Rule 70(D) and Rule 70(B),
    submitting that Rule 70(D) deals with a situation in which
    information is being
    presented in evidence. Rule 70(B) deals with the basis upon which information is
    provided to the Prosecution,
    as opposed to its form or content when it comes to
    be presented in
    court.[13] The
    Prosecution argued that “[t]he fact that a witness may give evidence as to
    information provided to him by third parties
    on a confidential basis does not
    mean that the witness may not remain protected by the provision of Rule 70
    insofar as his testimony
    was provided to the Prosecution, in the first instance
    on a confidential basis within the meaning of Rule
    70(B).”[14] The
    Prosecution also noted a distinction between witness immunity and testimonial
    privilege.[15]
  3. According
    to the Defence, the Prosecution’s request that the witness be allowed to
    withhold information which is not even in
    the possession of the Prosecution is
    beyond the scope of Rule
    70(B).[16] The Defence
    submitted that the Trial Chamber was correct in determining that the witness,
    who is only a recipient of hearsay information,
    cannot rely on Rule
    70.[17] The Defence
    emphasised that the right of the accused to a fair trial enshrined in Article
    17(4)(e) of the Statute includes the right
    “[t]o examine or have examined,
    the witness against him or
    her.”[18] The
    Defence opposed the proposed limitation on cross examination, explaining that
    without cross-examination on the sources of the
    information the evidentiary
    value of the evidence could not be
    assessed.[19]
  4. The
    United Nations High Commissioner for Human Rights (“UN High
    Commissioner”) urged the Appeals Chamber to adopt an interpretation
    consistent with the interpretation given to Rule 70 of the ICTY Rules of
    Procedure and Evidence by the Appeals Chambers of the
    ICTY.[20] The UN High
    Commissioner argued that the Trial Chamber was unduly restrictive in limiting
    the application of Rule 70(B) to cases
    where the “provider” of the
    initial information for purposes of Rule 70(B) is also the source of that
    information.[21] While
    the Trial Chamber has the authority to assess whether information was provided
    by the witness in accordance with Rule 70(B),
    its enquiry is limited to an
    examination of whether the information was, in fact, provided on confidential
    basis.[22]
  5. Human
    Rights Watch submitted that Rule 70 should be permissively construed to ensure
    that a human rights officer acting as a witness
    would not be compelled to answer
    a question on grounds of confidentiality or privilege in circumstances such as
    those in the instant
    case.[23]

B. Was the majority decision correct in
balancing the public interest attaching to the work of human rights officers
with the rights
of the accused persons to a fair trial?


  1. The
    Prosecution submitted that Trial Chamber II erred in balancing the public
    interest attaching to the work of Human Rights officers,
    including the
    privileged relationship between those officers and their informants, against the
    rights of the accused protected under
    Article 17 of the
    Statute.[24] According
    to the Prosecution, the correct balancing exercise should have been between the
    public interest attaching to the work of
    human hights officers and the public
    interest in having all the relevant information before the
    Chamber.[25] Applying
    this test, the Prosecution argued that the balance falls in favour of permitting
    a human rights officer to refuse to disclose
    the identities of his
    sources.[26] The
    Prosecution submitted that the Rules recognize that non-revelation of some
    information to the Chamber does not breach the fair
    trial rights of the accused
    per se.[27]
    Moreover, non disclosure of the identities of sources would not prejudice the
    rights of the accused because the Defence could call
    other evidence to challenge
    any information provided by the witness and because the Trial Chamber could
    determine how much weight,
    if any, to place on the particular portion of the
    evidence which was given without a named
    source.[28]
  2. The
    Defence submitted that the rights of the accused should be taken into account
    and that the issue in this case cannot be equated
    with other situations
    involving testimonial immunity or with the special protections accorded to
    employees of the International Committee
    of the Red
    Cross.[29] The Defence
    argued that the witness cannot seek to rely on the immunities and privileges
    which have already been waived by the United
    Nations and that the issue is not
    one involving freedom of
    speech.[30] According
    to the Defence, the protective measure of hearing the witness in closed session
    is sufficient to safeguard the witness’s
    informants and the role of the
    human rights
    officer.[31]
  3. The
    UN High Commissioner explained that confidentiality is an essential element of
    the working methods of UN human rights officers,
    and that their work is of
    fundamental importance to the restoration and maintenance of international peace
    and security, the rule
    of law, and the administration of
    justice.[32] Thus, she
    argued in favour of a privilege protecting the identities of the confidential
    sources of a UN human rights officer which
    is not subject to any balancing of
    compelling interests, but is subject to a specific exception where exculpatory
    evidence is
    involved.[33] In her
    view, any prejudice to the rights of an accused person could be addressed by
    reducing the weight to be accorded to the testimony
    for which the sources are
    being withheld.[34]
    The UN High Commissioner submitted that this privilege cannot be waived by the
    Secretary-General, the High Commissioner, or the human
    rights officer and that
    the UN waiver letter did not purport to waive the privilege protecting the
    confidential sources of a UN human
    rights
    officer.[35]
  4. Amnesty
    International addressed the public interest in protecting confidential
    communications concerning human rights violations.
    According to Amnesty
    International the public interest information privilege is grounded in the human
    right to freedom of opinion
    and expression and, thus, can only be waived by the
    source and not the human rights
    officer.[36]
  5. Human
    Rights Watch submitted that there is a generally consistent jurisprudence
    protecting a category of witnesses, including human
    rights officers, from
    revealing their
    sources.[37] Human
    Rights Watch explained that the accused person would not be prejudiced by expert
    evidence containing hearsay on factual matters
    because a court could give
    appropriate weight to such
    evidence.[38]



III. DELIBERATIONS


  1. The
    Appeals Chamber gratefully acknowledges the extensive and helpful submissions in
    the briefs.[39]
    However, this appeal will focus on the two grounds which properly arise from the
    Impugned Decision, namely: first, the question of
    the applicability of Rules
    70(B) and 70(D) to the Prosecution’s request; and, second, the balancing
    of the public interest
    in protecting confidentiality in the work of human rights
    officers and the public interest in the fair trial of an accused.

A. Are Rule 70(B) and Rule 70(D) applicable to the Prosecution’s
request?


  1. Rule
    70 is principally an exception to the disclosure scheme contained in Rules 66 to
    69. Rule 70(A) exempts internal documents prepared
    by a party from these
    disclosure rules. Rule 70(B) exempts from disclosure “information which
    has been provided to the Prosecutor
    on a confidential basis and which has been
    used solely for the purpose of generating new evidence” unless the
    Prosecutor first
    gains the provider’s consent. Rules 70(C) and 70(D)
    recognise the competence of the person or entity providing information
    under
    Rule 70 to give evidence but continue to ensure that such person shall not be
    compelled or required to reveal more than he
    or she had consented to. Rule 70(E)
    preserves the right of the accused to challenge the evidence presented by the
    Prosecution but
    recognises the limitation to that right in Rules 70(C) and
    70(D).
  2. With
    regard to the applicability of Rule 70, the Prosecution’s appeal raises
    two issues: first, did the Trial Chamber err in finding that Rule 70 does
    not apply because the Prosecution failed to prove that it was in possession
    of
    the initial information?; and, second, did the Trial Chamber err in
    finding that Rule 70(D) did not apply because Witness TF1-150 is not the
    “originator of the initial
    information” or “the person or
    representative of the entity providing the initial information”?

1. Did the Trial Chamber err in finding that Rule
70 does not apply because the Prosecution failed to prove that it was in
possession
of the initial information?


  1. It is the possession of the “initial information” which has been
    provided to the Prosecutor on a confidential basis and which has been
    used solely for the purpose of generating new evidence that triggers the
    protection from disclosure of both the information
    and its origin in Rule 70(B).
    However, the ICTY Appeals Chamber has explained that, for the purposes of Rules
    70(C) and 70(D), the
    term “initial information” is not limited to
    evidence used solely for generating new evidence, since these parts of Rule
    70
    regulate the use of the previously confidential material in court with the
    consent of the provider:

By definition, the information is by this stage no longer being
‘used solely for the purpose of generating new evidence’.
It becomes
a matter of necessary textual interpretation, therefore, that the information
referred to in paragraphs (C) and (D) must
be that which was provided to the
Prosecutor on confidential basis (the first option), and not that which
was so provided and which has been used solely for the purpose of generating new
evidence (the second option). In the
opinion of the Appeals Chamber, the Trial
Chamber erred in adopting the second option rather than the first.


  1. The
    Appeals Chamber agrees with the opinion of the ICTY Appeals Chamber in the
    Milošević
    Decision[40]
    and
    finds that “information” referred to in Paragraphs (C) and (D) is
    information which was provided to the Prosecutor
    on a confidential basis,
    without the characteristic that it “has been used solely for the purpose
    of generating new evidence”.
    The guiding characteristic of the information
    provided under Rule 70 is that it was provided on confidential basis. That makes
    the
    consent of the person who provided the information on confidential basis a
    pre-condition to disclosure in paragraph (B); makes additional
    evidence received
    from that person protected in paragraph (C); and, makes that person, if called
    as a witness, not compellable to
    answer any question that he may decline to
    answer on the basis of confidentiality in paragraph (D).
  2. It
    is not profitable to ask whether the term “information” includes the
    source of the information for the purposes of
    Rule 70. It is manifest that Rule
    70(B) only requires that the Prosecution be in possession of the “initial
    information”.
    Both the initial information and its source are protected by
    Rule 70(B) from disclosure without the prescribed written consent. Even
    if the
    Prosecutor was in possession of the source information, he could not be required
    to disclose it without the provider’s
    consent.
  3. The
    Appeals Chamber, therefore, finds that the Trial Chamber majority erred in
    holding that Rule 70 applies only where the Prosecutor
    is in possession of
    information which has been provided to him on a confidential basis and which has
    been used solely for the purpose
    of generating new evidence, without noting that
    the condition that the information “has been used solely for the purpose
    of
    generating new evidence” does not apply to sub-Rules 70(C) and 70(D).
    This deficiency affected the Trial Chamber’s conclusion
    that the
    Prosecution had failed to show that it was “in possession of that initial
    information.”
  4. The
    Appeals Chamber, moreover, observes that a Trial Chamber should be conscious of
    the difficulties in assessing the scope of information
    provided to the
    Prosecution on a confidential basis. An assertion by the Prosecution that
    information has been provided on a confidential
    basis would normally satisfy the
    Trial Chamber. Notwithstanding these practical limitations, the Appeals Chamber
    shares the view
    of the ICTY Appeals Chamber that the jurisdiction of the Trial
    Chamber to probe the assertion is undoubted:

Chambers of the Tribunal do indeed have the authority to assess
whether information has been provided in accordance with Rule 70(B)
and so
benefits from the protection afforded by that Rule. However, such enquiry must
be of a very limited nature: it only extends
to an examination of whether the
information was in fact provided on a confidential basis, bearing in mind that
the providing of
information may not be confined to a single act, but may
consist of a process involving several acts. This is an objective test.
The
Chambers may be satisfied of this simply by a consideration of the information
itself, or by the mere assertion of the Prosecutor,
or they may require
confirmation from the information provider or, where the information is in the
form of a document, for example,
there may be something on the face of the
document which indicates that it was indeed provided on a confidential
basis.[41]


  1. In
    the instant case, the Defence was concerned with witness’s confidential
    sources, since the evidence of the witness himself
    was already disclosed to the
    Defence. The Defence did not argue and the Trial Chamber did not find that the
    information concerning
    the witnesses sources could not have been provided on a
    confidential basis. In the view of the Appeals Chamber, the Prosecution’s
    statement that the information had been confidentially provided and the UN
    letter referring to the “the sensitive and confidential”
    nature of
    the witness’s information were sufficient to demonstrate that the
    Prosecutor was in possession of initial information
    provided on confidential
    basis rather than to the contrary.
  2. The
    Appeals Chamber, therefore, concludes that the Trial Chamber erred in finding
    that Rule 70 did not apply because the Prosecution
    failed to show that it was in
    possession of the initial information.
  3. The
    Appeals Chamber notes that although the Milošević Decision was
    cited to the Trial Chamber, the majority considered that it was
    “distinguishable and therefore not pertinent to the
    case.”[42] The
    Appeals Chamber considers that this authoritative and historical exposition of
    the purpose of Rule 70 of the ICTY Rules, on which
    the Rules of the Special
    Court are based, should not have been dismissed as “not pertinent”
    to a case in which the main
    issue was Rule 70’s applicability.

2. Did the Trial Chamber err in finding that Rule
70(D) did not apply because Witness TF1-150 is not the “originator of the
initial information” or “the person or representative of the entity
providing the initial information”?


  1. The
    Trial Chamber found that the Prosecution could not rely on the protection
    offered by Rule 70(D) because the witness was neither
    the “originator of
    the initial information nor the person or representative of the entity providing
    the initial information
    but merely a recipient thereof.” The Trial
    Chamber reasoned that “Rule 70(D) applied where ‘the person or
    representative
    of the entity providing the initial information’ (i.e. the
    informant himself) has been called upon to testify.” The
    Trial Chamber
    categorized the “originator” of the information as “the
    informant himself” and the witness
    as “a recipient”.
  2. The
    Appeals Chamber finds that this reasoning is flawed in several respects. First,
    the term “initial information” in
    Rules 70(B) and 70(C) does not
    necessarily include all information from which the information provided to the
    Prosecutor was derived.
    As explained above, the reference to “initial
    information” in Rules 70(C) and 70(D) means information provided on
    confidential
    basis.
  3. Second,
    in Rules 70(B) and 70(C), the Prosecutor is the recipient of the information and
    the person or representative of the entity
    who provided the information to him
    is the “provider”. The actual origin, in the sense of an ultimate
    originating source,
    of the information provided to the Prosecutor may not be
    known or may not be discernable because the information may not have been
    given
    to the provider by any single person. More often than not the origin of
    information gleaned by a provider may be a collection
    of persons, such as a
    community piecing knowledge together—a little here a little there—to
    build up information or an
    entity collecting facts from different sources to
    build up information provided to the Prosecutor on confidential basis.
  4. The
    category of “originator of the initial information”, coined by the
    Trial Chamber, is alien to Rule 70 (D). Rule 70(D)
    grants the person providing
    or the representative of the entity providing the initial information
    (“the provider”) protection
    from compellability in regard to
    answering questions. Rule 70(D) does not require that the witness is the
    “originator of the
    initial information”. Indeed, one of the
    purposes of Rule 70(D) is to leave to the provider of the initial information
    the
    discretion to reveal or not to reveal the source or sources of information
    provided to the Prosecutor on a confidential basis. The
    Rules thus enable the
    witness to remain faithful to the pact of confidentiality, thus preserving the
    conditions under which the information
    provided to the Prosecutor may have been
    obtained.
  5. The
    Trial Chamber erred in concluding that Rule 70(D) could not apply because
    Witness TF1-150 is not the “originator of the
    initial information”
    or “the person or representative of the entity providing the initial
    information”. The Appeal
    Chamber, thus, finds that the Trial Chamber erred
    in finding that the provisions of Rule 70 upon which the Prosecution sought to
    rely were not applicable to the witness or his testimony.

B. Was the majority decision correct in balancing
the public interest attaching to the work of human rights officers with the
rights
of the accused persons to a fair trial?


  1. Having
    found that Rule 70 did not apply to Witness TF1-150, the Trial Chamber proceeded
    to reject the Prosecution’s request
    on a second basis. While recognizing
    the privileged relationship between a human rights officer and his informants,
    as well as the
    public interest that attached to the work of human rights
    officers gathering confidential information in the field, the Trial Chamber
    found that that these considerations should not outweigh the rights of the
    accused to a fair trial as guaranteed by Article 17 of
    the Statute of the
    Special Court. The Prosecution has appealed this finding.
  2. Since
    the Trial Chamber has acknowledged the privileged relationship and the public
    interest arising out of the work of human rights
    officers, the Appeals Chamber
    will not delve into these issues in any further detail. However, the Appeals
    Chamber considers that
    the special interests of human rights officers who have
    provided confidential information to the Prosecutor are adequately covered
    by
    Rule 70, which can be interpreted as protecting confidential information from
    disclosure and protecting the provider from certain
    aspects of compellability.
    To this extent, a limited testimonial privilege has already been recognized in
    the Rules. Moreover, insofar
    as Rule 70 is not focused on the status, office, or
    profession of the informant, it offers a more general protection. Read
    purposively,
    the provisions of Rule 70 can achieve the same purpose as is served
    by erecting a shield of privilege to protect some categories
    of persons from
    compulsion to divulge details and sources of confidential communication or
    information where appropriate. The purposes
    served by Rules 70(C) and 70(D) will
    not be served merely by resort to a closed session. The Rule 70 information
    provider must be
    empowered to guarantee anonymity to a confidential source. This
    guarantee of non-disclosure of identity cannot depend on the chance
    that a
    future Trial Chamber might order a closed session hearing or other protective
    measures.
  3. However,
    the probative value of the witness’s remaining evidence may be affected by
    the invocation of Rule 70 protection. Thus,
    the fairness of the trial can be
    ensured by the Trial Chamber’s overriding obligation to assess the
    evidence in its totality
    and the following safeguards set out in the ICTY
    Appeals Chamber’s decision:

The Appeals Chamber observes that two safeguards exist to ensure
that any misuse does not deprive accused of their rights to challenge
the
evidence against them and to receive a fair trial. First [...] the Trial
Chambers do possess a limited authority to police the
application of Rule 70 in
order to prevent its misapplication. Second, paragraph (G) of Rule 70 expressly
empowers the Trial Chambers
to ‘exclude evidence if its probative value is
substantially outweighed by the need to ensure a fair trial.’ Designed
to
ensure that the restrictions in paragraphs (C) and (D) do not undermine the
bedrock requirement of fair trial when the Rule is
properly invoked, paragraph
(G) also gives Trial Chambers a tool to protect that requirement if the Rule has
been misused.[43]


  1. The
    Appeal Chamber notes that there is no Rule 70 (G) in the Rules of the Special
    Court. However, there is Rule 95 which is specifically
    referred to in Rule 70(F)
    and which provides that “No evidence shall be admitted if its admission
    would bring the administration
    of justice into serious disrepute.” This
    provision is wide enough to cover such cases as would be covered by Rule 70 (G)
    of
    the ICTY Rules.
  2. For
    these reasons, the Appeals Chamber is satisfied that Rule 70 applies to Witness
    TF1-150 or his testimony and that the request
    of the Prosecution should have
    been granted.

IV. DISPOSITION


FOR ALL THE ABOVE REASONS THE APPEALS CHAMBER,


ALLOWS the Prosecutor’s appeal,


QUASHES the Impugned Decision,


AND GRANTS the Prosecution’s oral application for leave to be
granted to witness TF1-150 to testify without being compelled to answer
questions
in cross-examination that the witness declines to answer on grounds of
confidentiality pursuant to Rule 70 (B) and (D) of the Rules.


Hon. Justice Robertson is appending his Separate and Concurring Opinion to
the present Decision.


Done at Freetown this day 26th of May 2006



___________________
Justice Raja Fernando
Presiding Judge,

__________________
Justice Emmanuel Ayoola

______________________
Justice George Gelaga King

______________________
Justice Renate Winter

______________________
Justice Geoffrey Robertson,
QC


[Seal of the Special Court for Sierra Leone]



[1] Pursuant to the
Appeals Chamber’s jurisprudence requiring separate and dissenting opinions
to be filed together with the related
majority decision, the Dissenting Opinion
of Justice Doherty filed on 23 September 2006 ought to have been filed on 16
September
2005. See Prosecutor v. Brima, Kamara, Kanu, Case No.
SCSL-04-16-AR73, Decision on Brima-Kamara Defence Appeal Motion Against Trial
Chamber II Majority Decision on Extremely
Urgent Confidential Joint Motion for
the Re-Appointment of Kevin Metzger and Wilbert Harris As Lead Counsel for Alex
Tamba Brima
and Brima Bazzy Kamara, 8 December 2005, paras.
20–24.
[2]
Transcript of 13 September 2005, Oral decision, p.
24.
[3] Rule 70:
Matters not Subject to Disclosure
(A) 
    Notwithstanding the provisions of Rules 66 and 67, reports,
memoranda, or other internal documents prepared
by a party, its assistants or
representatives in connection with the investigation or preparation of the case,
are not subject to
disclosure or notification under the aforementioned
provisions.
(B)    If the Prosecutor is in possession of
information which has been provided to him on a confidential basis and which
has
been used solely for the purpose of generating new evidence, that initial
information and its origin shall not be disclosed by
the Prosecutor without the
consent of the person or entity providing the initial information and shall in
any event not be given
in evidence without prior disclosure to the
accused.
(C)    If, after obtaining the consent of the person
or entity providing information under this Rule, the Prosecutor
elects to
present as evidence any testimony, document or other material so provided, the
Trial Chamber may not order either party
to produce additional evidence received
from the person or entity providing the initial information, nor may the Trial
Chamber for
the purpose of obtaining such additional evidence itself summon that
person or a representative of that entity as a witness or order
their
attendance. The consent shall be in writing.
(D)    If the
Prosecutor calls as a witness the person providing or a representative of the
entity providing information
under this Rule, the Trial Chamber may not compel
the witness to answer any question the witness declines to answer on grounds of
confidentiality.
(E)    The right of the accused to challenge
the evidence presented by the Prosecution shall remain unaffected subject
only
to limitations contained in Sub-Rules (C) and (D).
(F)   
Nothing in Sub-Rule (C) or (D) above shall affect a Trial Chamber's power to
exclude evidence under
Rule 95.
[4]
Impugned Decision, para.
19.
[5] Impugned
Decision, para.
20.
[6] Impugned
Decision, para.
20.
[7] Prosecution
Appeal, para. 8.
[8]
Prosecution Appeal, para. 9, citing Prosecutor v.
Milošević
, Case No. IT-02-54-AR108bis&AR73.3, Public Version
of the Confidential Decision on the Interpretation and Application of Rule
70,
23 October 2002 (the “Milošević Decision”). See
also
, Prosecution Reply, paras.
2–5.
[9]
Prosecution Appeal, para. 10.

[10] Prosecution
Appeal, para.
14.
[11]
Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3,
Public Version of the Confidential Decision on the Interpretation and
Application of Rule
70, 23 October
2002.
[12]
Prosecution Appeal, paras.
15–20.
[13]
Prosecution Appeal, paras. 21–23. See also, Prosecution Reply,
para. 6.
[14]
Prosecution Appeal, para.
21.
[15]
Prosecution Appeal, para.
22.
[16] Joint
Defence Response to Prosecution Appeal, paras. 9–16. See also,
Joint Defence Response to Amicus Briefs, paras.
1–26.
[17]
Joint Defence Response to Prosecution Appeal, paras.
17–31.
[18]
Joint Defence Response to Prosecution Appeal, paras.
32–37.
[19]
Joint Defence Response to Prosecution Appeal, paras.
38–43.
[20]
UNHCHR Brief, paras.
15–20.
[21]
UNHCHR Brief, paras.
17–19.
[22]
UNHCHR Brief, para.
20.
[23] Human
Rights Watch Brief, paras. 19–26.

[24] Prosecution
Appeal, paras. 24–26, 28–54. See also, Prosecution Reply,
paras,
7–24.
[25]
Prosecution Appeal, para.
26.
[26]
Prosecution Appeal, paras.
26–27.
[27]
Prosecution Appeal, para.
26.
[28]
Prosecution Appeal, para.
55.
[29] Joint
Defence Response to Prosecution Appeal, paras. 44–76, 85–93. See
also
, Joint Defence Response to Amicus Briefs, paras. 27–45.

[30] Joint Defence
Response to Prosecution Appeal, paras. 72–76. See also, Joint
Defence Response to Amicus Briefs, paras. 48,
52–54.
[31]
Joint Defence Response to Prosecution Appeal,, paras. 78–84. See
also
, Joint Defence Response to Amicus Briefs, paras.
55–65,
[32]
UNHCHR Brief, paras.
32–34.
[33]
UNHCHR Brief, paras.
21–46.
[34]
UNHCHR Brief, paras.
47–63.
[35]
UNHCHR Brief, paras.
64–70.
[36]
Amnesty International Brief.

[37] Human Rights
Watch Brief, paras.
27–57.
[38]
Human Rights Watch Brief, paras.
58–63.
[39]
As a preliminary matter, the Appeals Chamber notes the Defence objection to the
Prosecution’s failure to file copies of jurisprudential
authorities
referred to in the Prosecution Appeal. The exception created by Article 7(D)(i)
of the Practice Direction on Filing Documents
before the Special Court, which
exempts a party from filing a document when it is “readily available on
the internet”,
does not include paid or subscription websites. In order to
ensure that the parties and the court have access to all necessary authorities,
copies of authorities accessed on such websites must be filed pursuant to
Article 7(B) of the Practice Direction on Filing Documents
before the Special
Court.
[40]
Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3,
Public Version of the Confidential Decision on the Interpretation and
Application of Rule
70, 23 October
2002.
[41]
Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3,
Public Version of the Confidential Decision on the Interpretation and
Application of Rule
70, 23 October 2002, para.
29.
[42] Impugned
Decision, para.
19.
[43]
Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3,
Public Version of the Confidential Decision on the Interpretation and
Application of Rule
70, 23 October 2002, para. 26.