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

Prosecutor v Alex Tamba Brima & Ors - Decision on Prosecution Application for Leave to Appeal Decision on Oral Application for Witness Tf1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality (SCSL 16 of 2004) [2005] SC

Law report citations
Media neutral citation
[2005] SCSL 143


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

FAX:
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295996


TRIAL CHAMBER II


Before:
Judge Teresa Doherty, Presiding Judge
Judge Richard Brunt
Lussick
Judge Julia Sebutinde
Registrar:
Lovemore Munlo
Date:
12 October 2005
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

(Case No.SCSL-04-16-PT)


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


Office of the Prosecutor:

Defence Counsel for Alex Tamba
Brima
:
Luc Côté
Lesley Taylor
James Hodes
Melissa Pack

Kojo Graham
Glenna Thompson


Defence Counsel for Brima Bazzy
Kamara:

Andrew Daniels
Pa Momo Fofanah


Defence Counsel for Santigie Borbor
Kanu
:
Geert-Jan Alexander Knoops
Carry Knoops
Abibola E.
Manly-Spain

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court
for Sierra Leone (“Special Court”), composed of Judge Teresa
Doherty,
presiding, Judge Richard Lussick and Judge Julia Sebutinde;

SEISED of the Prosecution Application for Leave to Appeal Decision on
Oral Application for Witness TF1-150 to testify without being compelled
to
Answer Questions on Grounds of Confidentiality, filed 19 September 2005
(“the Motion”);

CONSIDERING the Joint Response, filed on 23 September 2005 by the
Defence for all three Accused (“the Joint Response”);

CONSIDERING the Prosecution’s Reply to the Joint Response, filed
on 27 September 2005 (“the Reply”);

BEING MINDFUL of 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
the grounds of confidentiality pursuant to Rule
70 (B) and (D) of the Rules,
dated 16 September 2005 (“the impugned Decision”);

NOTING that Rule 73(B) of the Rules provides that

“Decisions rendered on such motions are without interlocutory
appeal. However, in exceptional circumstances and to avoid irreparable
prejudice
to a party, the Trial Chamber may give leave to appeal. Such leave should be
sought within 3 days of the decision and shall
not operate as stay of
proceedings unless the Trial Chamber so orders.”

NOTING therefore the general rule that decisions are without
interlocutory appeal, and that only if the conjunctive conditions of exceptional
circumstances and irreparable prejudice to a party in Rule 73(B) are satisfied,
a Trial Chamber may grant leave to interlocutory
appeal;[1]

CONSIDERING FURTHER that the Appeals Chamber has ruled that

“In this Court, the procedural assumption is that trials will
continue to their conclusion without delay or diversion caused
by interlocutory
appeals on procedural matters, and that any errors which affect the final
judgment will be corrected in due course
by this Chamber on
appeal”.
[2]

NOTING therefore that the rationale behind the restrictive nature of
Rule 73(B) is that the proceedings before the Special Court should not
be
heavily encumbered and consequently unduly delayed by interlocutory
appeals;[3]

NOTING FURTHER that the Appeals Chambers ruled:

“That test is not satisfied merely by the fact that there has been a
dissenting opinion on the matter in the Trial Chamber,
or that the issue strikes
the Trial Chamber judges as interesting or important for the development of
international criminal
law.”[4]

CONSIDERING that in the present case the question of whether a Human
Rights Officer can be compelled to reveal the sources of his or her information
is not only a novel and substantial aspect of international criminal law, but is
also likely to arise again with regard to other
witnesses in the present case
and that the interpretation by the Appeals Chamber of Rule 70 and in particular
Rule 70(B) and (D)
of the Rules is of fundamental importance to both the Defence
and Prosecution cases and therefore constitutes “exceptional
circumstances” within the meaning of Rule 73(B) of the Rules;

CONSIDERING FURTHER that correctly weighing the competing public
interest of a Human Rights Officer’s undertaking to protect the
confidentiality
of his/her sources of information and the rights of an accused
constitutes “exceptional circumstances” pursuant to Rule
73(B) of
the Rules;

CONSIDERING FURTHER that the impugned Decision, which compelled
Witness TF1-150 to disclose the identity of his confidential source, may be
capable of
causing irreparable prejudice in that the Prosecution has been unable
to call this witness to testify to a core issue at trial, i.e.
the widespread
and systematic nature of the attacks on the civilian population in Sierra
Leone.


FOR THE FORGOING REASONS


THE TRIAL CHAMBER ALLOWS THE APPLICATION and grants the Prosecution
leave to file an interlocutory appeal against the impugned Decision.


Done at Freetown, Sierra Leone, this 12th day of
October 2005.




Justice Richard Lussick
Justice Teresa Doherty
Presiding Judge
Justice Julia Sebutinde


[Seal of the Special Court for Sierra Leone]


[1] Prosecutor v.
Sesay et al.
, Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s
Application for Leave to File an Interlocutory Appeal against the Decision
on
the Prosecution Motion for Joinder, 13 February 2004; Prosecutor v. Brima et
al.
, Decision on the Prosecutor’s Application for Leave to File an
Interlocutory Appeal against the Decision on the Prosecution
Motion for Joinder,
13 February 2004.
[2]
The Prosecutor v. Norman et al., Case No. SCSL-2004-14-AR73, Decision on
Amendment of the Consolidated Indictment, 16 May 2005, para.
43.
[3] Prosecutor
v. Sesay et al.
, Case No. SCSL-2004-15-PT, Decision on the
Prosecutor’s Application for Leave to File an Interlocutory Appeal against
the Decision
on the Prosecution Motion for Joinder, 13 February
2004.
[4] The
Prosecutor v. Norman et al.
, Case No. SCSL-2004-14-AR73, Decision on
Amendment of the Consolidated Indictment, 16 May 2005, para. 43.