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

Prosecutor v Alex Tamba Brima & Ors - Separate and Concurring Opinion of Justice Robertson on the Decision on Brima-kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confidential Joint Motion for the Re-appointme

Law report citations
Media neutral citation
[2005] SCSL 184


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THE APPEALS CHAMBER


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


Interim Registrar:
Mr. Lovemore Munlo, SC
Date:
8th December 2005
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

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


SEPARATE AND CONCURRING OPINION OF JUSTICE ROBERTSON ON THE
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



First Respondent:
The Registrar

Court Appointed Counsel for Alex Tamba
Brima:

Kojo Graham
Glenna Thompson
Second Respondent:
The Principal Defender
Court Appointed Counsel for Brima Bazzy
Kamara

Andrew K. Daniels
Mohammed Pa-Momo Fofanah




1. I concur in the result that this appeal be dismissed, although I reach
that conclusion on the ground that the motion is an abuse
of process, namely a
collateral attack on a judgement (that of 20 May 2005) which can only be altered
by way of an application to
appeal it or revise it, and not by attempting to
stop the Registrar from implementing it. I have explained my reasoning in this
separate judgement, which deals additionally with a number of important issues
that have been fully argued in submissions but have
not been addressed in the
majority opinion.


2. This interlocutory appeal has generated over 1,000 pages of evidence and
argument. It has been costly and time consuming for a
court which has little
time or money to spare. It has evoked internecine disputes amongst the judges
of Trial Chamber II, a heated
disagreement between the Defence Office and the
Registrar, and severed – then patched up – relationships between
counsel
and their clients. The only party to emerge unscathed is the
prosecution, which sensibly avoided involvement in the imbroglio which
ensued
when two lead defence counsel sought to withdraw from the AFRC case, claiming to
be in fear for their lives. With the hindsight
from which an Appeal Chamber
always benefits, some of the actions in the court below can be seen as
precipitate or ill-advised.
In so describing them I do not wish to
underestimate the serious and novel ethical problems that can unexpectedly arise
in defending
people who do not wish to be defended, in a war-crimes court
sitting in what was, until recently, a war zone.


3. This judgement begins by making some preliminary points about dissenting
judgements and confidential motions in Trial Chambers.
There will follow an
account of the facts, and then consideration of certain important issues which
have arisen in the course of
the appeal and have been fully argued, touching the
right to counsel and the role of the Defence Office. Although I find that the
Appeal itself goes nowhere – it is brought to review judicially a
Registrar’s decision, rather than as an appeal against
the court order
which his decision implemented – nonetheless it has raised in its course a
number of issues of general importance
for war crimes courts in relation to the
duties owed by defence counsel and the extent to which a Trial Chamber may
direct the Registrar
in respect of his administrative decisions.


PRELIMINARY ISSUES
A) Filing of dissenting
judgements


4. This appeal has exposed a systemic procedural aberration in both Trial
Chambers, namely a tendency for dissenting judgements, and
sometimes individual
concurring opinions, to appear weeks and even months after publication of the
court’s decision. In this
appeal, for example, the Trial Chamber’s
majority decision was delivered by Judges Doherty and Lussick on 9 June 2005;
Judge
Sebutinde’s dissent was not published until 11 July. The Trial
Chamber decision to permit the withdrawal of counsel –
the decision which
should have been the subject of this appeal – was delivered by the same
majority on 20 May 2005, but Judge
Sebutinde did not vouchsafe her dissent until
8 August – two and a half months later. Upon enquiring into the records,
it
appears that similar delays have occurred in delivery of decisions in Trial
Chamber I. The late filing of individual judicial opinions
seems to have become
a habit in both
chambers.[1] It must
stop immediately, for a number of reasons.
5. The first reason is that it is
in breach of the Statute of the Special Court for Sierra Leone, which is this
court’s constitution.
Article 18 states:


The judgement shall be rendered by a majority of the judges of the Trial
Chamber... It shall be accompanied by a reasoned opinion
in writing, to which
separate or dissenting opinions may be appended.


By no stretch of language can a dissenting opinion be said to be
“appended” to a decision of the court when it is filed
two months
after that decision. “Appended” means annexed or attached to, i.e.
added in writing at the
end.[2] Article 18 does
not comprehend the delivery of a separate or dissenting opinion at some later
date.


6. Quite apart from the Statute, simultaneous delivery of judicial opinions
has been the invariable practice in this Appeal Chamber
and in other
international courts, and in the Supreme courts of nations with developed legal
systems. It is not only good administrative
practice, but essential for
fairness to the parties: how else are they to know whether and how to appeal, or
how otherwise to conduct
themselves, until they are able to read all the
judgements in a case? It is also essential for collegiality: the public and the
parties are entitled to expect judges to discuss each other’s opinions
with open minds, and to consider points made in each
other’s drafts. How
can the necessary collegiality be maintained when one judge declines to submit a
draft to colleagues,
yet publishes a critique of their efforts, in the form of a
dissent, several months later? In this case, we have the spectacle of
one judge
belatedly making factual assertions to which her colleagues have taken issue,
and they have given their different version
of events at the only time possible
to bring them before the appeal chamber, namely when granting leave to appeal.
Moreover, the
practice has led to confusion as to the point from which
time-limits for appeal are to run: is this from the date of the decision
of the
court (i.e. the majority), or the date on which the last judicial opinion in the
case is filed?


7. This problem can be illustrated by the present appeal. Rule 73B provides
that any application to appeal an interlocutory decision
must be made
“within three days of the decision”. The decision, obviously, is
that of the court, whether unanimous or
by majority. The court’s majority
decision in this case was rendered on 9th June 2005 and
the time for interlocutory appeal ran out on 12th June,
by which point no such appeal had been lodged. The application was not made
until 14th July, well out of time but within three days
of the dissent filed by Judge Sebutinde on 11th July
– this dissent evidently inspiring the application. The Trial Chamber
granted leave notwithstanding, although Judge Lussick
noted that technically the
application was out of time. In future, time limits for interlocutory appeals
should be strictly enforced
and practitioners and judges must realise that time
runs from the date at which the reasoned judgement of the court is first
delivered
to the parties.


8. The practice that seems to have developed in both Trial Chambers must not
continue. This Appeal Chamber should henceforth not
read dissents or concurring
opinions which are not “appended” to the court decision. It is
often necessary for a Trial
Chamber to give an ex tempore, “off the
cuff” decision with reasons to follow later, and this practice is to be
encouraged in the interests of expedition
of trial proceedings. But the delay
should at most be measured in weeks, and never in months: it is the primary role
of Trial Chamber
judges to get on with the trial as fairly and expeditiously as
possible, and only to produce lengthy interlocutory disquisitions
on interesting
points of law in the rare case where this is necessary, for fairness and
expedition. Otherwise, such academic exercises
should be left to the Appeal
Chamber, which is best placed to consider them. The Trial Chamber should
dispense practical legal wisdom
in language comprehensible to defendants as well
as counsel, and dispense it either on the spot or shortly after oral or written
argument. It is the function of the Presiding Judge to ensure that Trial
Chamber judgements are expeditiously delivered, and there
are obviously limits
to the time (which I would measure in weeks - four at the outside) that a
dissenter can be permitted to take
to produce an opinion to be
“appended”. If a dissenter cannot write his or her opinion within a
reasonable time, then
the Presiding Judge would be entitled to proceed to file
the court’s decision: the dilatory dissenter would lose his or her
conditional right under Article 18 of the Statute to “append”
reasons to justify their dissent. That Article provides
that “separate or
dissenting opinions may be appended” (my italics) and
“may” does not mean “must”. A tardy dissenter cannot be
allowed to hold
up the delivery of a judgement. But if the dissent is ready at
much the same time as the majority decision, the judgements should
all be
published simultaneously. The majority, or the Presiding judge, have no power
to prevent publication of a dissent which is
available, within reasonable time,
to be “appended”.


9. The importance of collegiality must be emphasised. Each judge is
independent, but a condition of independence is a willingness
to consider the
arguments of colleagues. Where opinions differ, collegiality requires at least
a consideration of other arguments
and a willingness to divulge and discuss
drafts before the judgements are published, all within an atmosphere of good
faith. Any
allegations of impropriety against judicial colleagues should be
made to the President of the Court. Rule 29 should be respected,
at least in
keeping documentary communications between judges confidential. These
principles are readily observed in national courts,
where judges (however much
their personalities clash) emerge from the same professional background: they
should apply in international
courts, notwithstanding differences in approach
and experience between judges from different national systems.


B) Confidential Filings


10. The other point of general importance that emerges from scrutiny of the
record in this Appeal is the unsatisfying and somewhat
cavalier approach to the
filing of “confidential” motions and responses. The Special Court,
like all true courts, has
a rule that presumes that its justice will be done in
public and that unless very good reasons are advanced and accepted, the evidence
and arguments will be accessible to the public. This not only presumes that
hearings will be in open court but that all motions
and responses and
documentary material submitted to the court will be placed on an open file.
There may, on occasion, be good reason
to keep such material confidential to the
parties, but that good reason must be established in open court and secrecy must
be limited
to what is absolutely necessary to serve the purpose for which it is
ordered.[3] In this
case, however, the written motions by lead counsel to withdraw from the case,
and the responses by the Principal Defender
and the prosecution, were all
designated and treated as “confidential” – with the
consequence that the arguments
before the Trial Chamber on the withdrawal
application cannot be appreciated, other than by passing references in the
majority and
minority judgements.


11. From a study of the transcripts, it appears that lead counsel Mr Metzger
first trailed the need for a “closed session”
for what he described
as “sensitive matters” in open court on 6th
May 2005 – the last of three open hearings of his application to withdraw.
The prosecution assumed that this “sensitivity”
related to
lawyer-client confidentiality and its concern was only to ensure that its
counsel had access to any material that would
be considered by the court. The
Trial Chamber, without hearing further argument, ordered that “All
documents are to remain
confidential. Oral submissions, if any, relating to
matters of a sensitive nature shall be in closed
session.”[4]
Thereafter, submissions in what was labelled “The Confidential Joint
Defence Application for Withdrawal by Counsel for Brima and Kamara

were filed and circulated in secret. Article 4B of the Practice Direction on
Filing Documents provides that documents filed
as “Confidential”
should indicate the reason for confidentiality on a Court Management Form, and
“The Judge or
chambers shall thereafter review the document and determine
whether confidentiality is necessary.” I have seen no evidence
of
compliance with Article 4B in this case. Where is the decision reviewing the
claim for “confidentiality”? Henceforth,
confidential filings
should explain, at the outset, the reasons for the claim of confidentiality, and
chambers must give judgements
– in open court as far as possible –
upholding or rejecting the claim.


12. Trial Chambers and all who practice in them are reminded of the
fundamental importance of the open justice principle. In the
words of Jeremy
Bentham, “Publicity is the very soul of justice. It is the keenest spur
to exertion and the surest of all
safeguards against improbity. It keeps the
judge himself, while trying, under trial”. Not only the judge, of course,
but
counsel and other professionals who must also be subject to informed public
scrutiny, especially in a case of this kind where they
sought permission to
withdraw from a trial commitment that they had undertaken both professionally
and contractually. The open justice
principle serves other forensic interests:
publicity deters perjury and encourages witnesses to come forward, while
resultant media
reportage enhances public knowledge and appreciation of the
workings of the law. Trials derive their legitimacy from being conducted
in
public: judges preside as surrogates for the people who are entitled to
scrutinise and approve the power exercised on their behalf.
No matter how fair,
justice must still be seen before it can be said to be done.


13. There will, in war crimes courts which sit in countries recently torn
asunder by war, always be occasions when justice can only
be done if certain
evidence is withheld. For example, the identity of protected witnesses or of
sources of information may have
to be suppressed. When that is done, however,
the suppression order must be strictly limited to what is necessary to serve the
overriding
security interest. It follows that applications for the
confidentiality of hearings or of motions should be made in public and the
reasons explained so far as possible in open court. Counsel for other parties
should be alert to resist unnecessary secrecy applications,
unless persuaded of
their merit. The court should consider such applications with the above
principles in mind and grant them only,
and only to the extent that, secrecy is
essential. In this case, the prosecution did not demur and the court made no
enquiry as
to the nature of the “sensitivity” and whether, for
example, confidentiality was really being sought for the illegitimate
reason of
protecting counsel from embarrassment. The court order clothed with secrecy
some important and novel submissions that
could and should have been advanced in
open court.


14. Given that the Defence had labelled its motion
“confidential” it was ironic that belatedly, in the Reply, the
Defence
should urge the Trial Chamber to order an oral hearing so that the
matter could be ventilated in public. This application was misconceived
since
all hearings must presumptively be held in open court: see Article 17(2) and
Rule 78. The point to which the Defence request
should have been directed was
whether there needed to be a “hearing” at all. Motions will only be
“heard”
– with all the consequent delay in assembling the
court and the expense of paying counsel and court staff – if the judges
think that oral argument is necessary to assist their decision-making, e.g. by
questioning counsel or hearing live evidence or further
oral development of an
argument. There had been oral hearings enough on this matter and the Trial
Chamber judges were perfectly
entitled, in their discretion, to reject the
request because they had no need of the assistance of counsel to decide the
legal issues
raised by the motion. There is, however, one rule of prudence that
judges should try to follow, namely that if they are minded to
make a serious
criticism of a lawyer or court official that goes to his integrity rather than
to his tactical sense or ability, it
is only right and fair to “hear the
other side”. In advancing their state of fear as a reason for withdrawal,
Messrs
Harris and Metzger were open to comment and criticism, but the Trial
Chamber’s conclusion that they were “insincere”
in making this
application suggests they were guilty of unprofessional conduct. Fairness
required that these two advocates at least
be given an opportunity to refute
this allegation, which had not been suggested in the written submissions of
other parties. It
was not, as it turned out, a finding that was necessary for
the Trial Chamber’s decision to dismiss this motion, which could
be amply
supported on other grounds.


THE FACTS


15. Although this appeal has produced a great deal of evidence and argument,
the key facts can be summarised quite shortly. In March
2005, in the AFRC case,
there was an unfortunate incident when a protected witness was threatened after
court by four women, including
the wives of the two appellants. The women were
arrested, together with an investigator for the defence team who was accused of
betraying the identity of this witness. The Trial Chamber suspended the
investigator and barred access by the women to the public
gallery. It ordered
an independent counsel to consider the matter, received his confidential report
and authorised him to prosecute
all five persons for contempt. In taking these
steps, so the Appeal Chamber subsequently held, the Trial Chamber acted properly
and reasonably and according to the Rules of Evidence and
Procedure.[5] However,
its actions understandably upset the defendants, who were personally blameless,
but upset them to such an extent that they
boycotted the trial by refusing to
come to court. They withdrew all instructions from their counsel, other than
instructions to
appeal all of the Trial Chamber decisions in relation to the
contempt matter. By these actions, they sought not merely to protest
the Trial
Chamber decision, but to disrupt the adversary process of their own trial, so it
could not continue effectively (i.e. with
fully instructed counsel testing the
prosecution evidence) until either the Trial Chamber reversed its decision to
authorise the
contempt prosecution, or the appeal against that authorisation was
decided by the Appeal Chamber – some months in the future.
No court can
buckle under this kind of pressure from defendants and although some allowance
might be (and in this case, was) made
so that they could reconsider their
boycott and discuss its consequences fully with their counsel, it must be said
that this disruptive
action of the defendants initiated the unhappy series of
events that followed.


16. As the defendants must have realised, their withdrawal of instructions
put their lead counsel in some professional difficulty.
It is not easy for any
barrister bred, like Messrs Harris and Metzger, in the traditions of the English
bar to conduct a defence
without the full confidence and support of his client.
When that confidence is lacking or where other “professional
difficulties”
arise (this phrase being sometimes a euphemism for a
client’s inadvertent admission of guilt), a barrister’s
conscientious
decision to withdraw is usually accepted by English criminal
courts. However, for reasons which will be explained below, international
criminal courts cannot and do not adopt the same permissive attitude. From
bitter experience, they have made strict rules about
this situation. In this
court, the relevant rule is found in Rule 45:


Counsel shall only be permitted to withdraw from the case to which he has
been assigned in the most exceptional circumstances.


The Application for Withdrawal


17. After wrestling with their clients and their consciences, two lead
counsel - Messrs Harris and Metzger - decided that they could
not continue.
They made their application to withdraw from their contractual and professional
engagement on four grounds. Principally,
they claimed that withdrawal of their
instructions by their clients put them in an impossible ethical position.
Secondly, they asserted
- somewhat faintly - a potential embarrassment should
they be summonsed to appear as witnesses in the contempt proceedings. Thirdly,
and mistakenly, they urged that they would be in potential conflict with the
code of conduct of the English Bar. Fourthly, and dramatically,
they claimed to
have received threats to their lives and that of their families. They declined
to give any details of these threats,
which had never been mentioned to court
security or to the Registrar. All they said was that the threats had not
emanated from defendants
and were directed against “all court-appointed
counsel working at the Special Court”. Mr Harris added that he had
received
three telephone calls threatening his safety – he declined to say
from whom. This was a point capable of argument –
I can fully understand
the risks inherent in defending in international criminal proceedings –
but in this case neither counsel
seems to have argued that the Court could not
discharge the duty imposed on all international criminal courts to ensure the
safety
of all parties involved in the trial process (be they prosecutor or
defence advocates, witnesses, court staff, defendants or judges).


18. The Principal Defender opposed this application: the interests of justice
required that the lead counsel be held to their contracts
and any concern for
their safety might be met by redesignating them as “amicus” counsel
rather than as lead counsel.
The prosecution submitted that the four grounds,
whether individually or conjunctively, fell far short of “the most
exceptional
circumstances” which alone would justify the disruption,
expense and unfairness of permitting them to withdraw.


19. On 12th May the Chamber delivered orally its
majority decision, with reasons to follow later. It granted the two lead
counsel their application
to withdraw and it directed the Principal Defender,
who was in court, to assign new lead counsel. “We are confident that the
co-counsel can carry the case in the meantime, as they have been doing for long
sessions in any event” said Judge Lussick.
“Thank you for that
clarification” said the Principal Defender. “That just leads me to
know that we have to assign
other people in due course.” The situation,
it might have been thought, at this point was clear: the motion had been granted
and Messrs Harris and Metzger had been permanently removed, at their own
request, from the case and from the court.


20. This order would have administrative repercussions, of course. Their
names had been on a “list” of available defence
counsel which is
kept by the office of the Principal Defender (the “Defence Office”),
and in due course and as a purely
tidying-up exercise, their names would have to
be removed, since they had made themselves unavailable and the Court had ordered
that
they be replaced. Clause 13(b) of The Directive on the Assignment of
Counsel
defined those barristers eligible for inclusion on the list:
paragraph 13(b)(v) says specifically that they “must... have
indicated their willingness and availability to be assigned by the Special Court
to an accused
”. Since Messrs Harris and Metzger had spent the
proceeding fortnight forcefully indicating their unwillingness to be so
assigned, they had effectively removed themselves from the list in any event.
There was a court order that they should
be replaced and the only way they could
revert to their pre-existing role would be to approach the court and persuade it
to rescind
or vary that order. On 12th May, the Court
had plainly ordered that the trial would continue with co-counsel, and fresh
lead counsel would in due course be instructed
by the Principal Defender.


21. The situation was clear and all that was needed to make it pellucidly
clear was the court’s reasoning, to explain which
of the four grounds had
led it to take the wholly exceptional step of permitting these two lawyers to
abandon their clients. Since
most of the argument had been directed to the
primary ground, i.e. withdrawal of instructions, the Principal Defender might be
forgiven
for thinking that this was the basis of the court’s decision.
When the reasons for the decision were delivered, 8 days later
(20th May) it transpired that this ground had been
firmly rejected and the court had made its order solely on the fourth ground,
i.e. that
the two counsel were in a state of fear. Had that fact been known,
even in outline, on 12th May, the subsequent confusion
might have been less confounded.


Events between Decision (12 May) and Reasons (20 May)


22. This was not known, because on 12th May the
court did not even give short reasons for its decision. At some time later that
day the two defendants did a volte face. They wrote to the Principal
Defender, with copies to Harris and Metzger, a letter that is dated 12 May:


We now deem it necessary to withdraw the limited instruction and instruct
them to fully participate in our case, as there was a good
relationship existing
between us, as lawyer and client, and we have confidence, truth and belief in
them as our lead counsel. We
want to maintain our two lead counsel more so as
they have spent a lot of time working on our case and already have started
interviewing
our witnesses. In the light of the fact that we want this case to
end with out any undue delay as we are young men who want to continue
with our
lives after this case, we do not want new counsel to be brought in at this trail
(sic) stage. In the least we have some
information on the contempt of
proceedings. We have also implored our lawyers to come back to court. We would
join them at a later
stage in court.


23. The lawyers in the Defence Office believed that the withdrawal of
instructions had been the reason for the court’s decision,
so they thought
that restoration of those instructions, as indicated by the letter, should have
the effect of reversing the order.
So on 16th May an
assistant Principal Defender, Ms Claire Carlton-Hanciles, appeared before the
Trial Chamber and sought to table the defendant’s
letter. She was given
very short shrift:


The order was made. Any letters, correspondence or documents that seek to go
behind that decision cannot be countenanced in this
court. The decision was
made.


24. The court’s refusal to “enter into correspondence” was
understandable, since it was doubtless in the process
of finalising its reasoned
judgement. Nonetheless, it was regrettable that the Trial Chamber did not take
this opportunity to consider
the change of circumstances and to invite Mr Harris
and Mr Metzger to attend court if they had any application to vary the order.

The court’s incantation that “the decision was made” may
reflect an entirely mistaken notion that it had no jurisdiction
to reconsider
its order. As will be explained (para 49): every court may, if justice
requires, vary or rescind an earlier order
or reconsider an interlocutory
decision because of fresh evidence or changed circumstances. However, in the
absence of any application
from Harris and/ or Metzger, no such reconsideration
would have been fruitful, given the reasoning – as yet, unrevealed - upon
which the Trial Chamber majority had decided this matter.


25. The public defenders, sent off from court with a flea in their ear on
16th May, were not prepared to give up. They were
committed to the interests of Brima and Kamara and believed that these interests
would
be best served by reassigning their counsel of choice, now that they had
agreed to re-instruct them. In this exercise, the Defence
Office received scant
assistance from Harris or Metzger, neither of whom seems to have volunteered to
appear before the court to
ask for an unconditional return to the case. It
appears that they had left for England, leaving the matter for lawyers in the
defence
office to resolve, telling them in e-mails that the security problem was
“secondary”[6]
but their re-assignment was “a matter now for you and the
Chamber”.[7]
There seems to have been no appreciation that they would have to appear
themselves in the chamber to unravel a problem of their
own making. The
defendants, meanwhile, were refusing to consider any of the alternative lead
counsel suggested to them by lawyers
from the Defence Office and were insisting
that the Office re-assign Messrs Harris and Metzger. Given the unaccommodating
attitude
of the Trial Chamber judges on 16th May, the
public defenders were being put in an unenviable position.


26. On 17th May, the public defenders wrote to the
Registrar a considered letter setting out in some detail the reasons why they
believed it
would be in the best interests of the defendants, and the best
interests of expediting the trial and of fiscal economy if Messrs
Harris and
Metzger were “appointed afresh”. This was a reasonable position to
take if (as they obviously believed) the
reason for the court’s order had
been the original withdrawal of instructions. Their letter to the Registrar
failed to mention
the Trial Chamber’s refusal on
16th May to enter into any dialogue on what turned out
to be the all-important security issue: they merely said that counsel would be
willing to continue with the case “if reasonable steps can be taken to
address their concern” – whatever this might
mean.


27. I would interpret the Defence Office letter to the Registrar as a cry for
help rather than, as the Court later came to think,
an attempt to circumvent its
order. The Registrar interpreted it as a request for his assistance, and so
used his power under Rule
33B to make representations to the Trial Chamber for
help in discharging his functions. Given the urgency of the situation and the
fact that he was about to leave Freetown, the Registrar simply submitted the
public defender’s memorandum of 17th May to the
Presiding Judge of the Trial Chamber, with a hand-written request for the
court’s urgent advice on whether these
two counsel should be reappointed.
His note, hastily written in the circumstances, said that “as a matter of
expediency”
there were reasons to support their return but “my view
is that it would be counterproductive to reassign them” and he
thought the
Trial Chamber should have “at least a say, if not the final say” on
the question.


28. The Registrar is entitled, by Rule 33(B) to


make oral or written representation to Chambers on any issue arising in the
context of a specific case which affects or may affect
the discharge of such
functions, including that of implementing judicial decisions, with notice to the
parties where necessary.


This sub-rule means that he may intervene, himself or by his legal adviser or
counsel, in any Trial Chamber motion that touches his
responsibilities. He may
also approach and address the court on any difficulty that he or the departments
under his supervision
would encounter in implementing court orders. When he
approached the court on 18th May he had not been told
of its firm endorsement of its order on 16th May and he
was under pressure from the Defence Office to take action which would seemingly
(and in reality) have breached the 12th May order to
appoint other lead counsel. In these circumstances his action is explicable
although it should have been made as a
formal application with notice to all
parties: such a notice was obviously “necessary”. Regrettably, and
probably because
of pressures arising from the resignation of the Principal
Defender and his own imminent travel, the Registrar approached the court
privately and informally.


29. The Registrar’s request was discussed by the trial chamber judges,
after which the Presiding Judge wrote a robust reply
to the Registrar. It
referred to the “no correspondence” order of
16th May and added


That ruling stands and the order stands. The court will not give audience to
counsel who make an application to withdraw on one day
on various grounds,
particularly security, and then come back the day after and basically say they
retract. They cannot make fools
of the court like this, nor can they do it in a
“backdoor” way through the Principal Defender’s and
Registrar’s
power to appoint counsel.


30. The Registrar was mistaken to write privately to the Trial Chamber and it
was injudicious to reply by a private inter-office memorandum.
The court
should, consistently with its treatment of the Principal Defender on
16th May, have sent the Registrar away with the same
ruling: no correspondence would be entered into, at least until its reasoned
judgement
was delivered. Then, at a proper hearing attended by Harris and
Metzger, views about “making a fool of the court” could
be
canvassed. The Presiding Judge was perfectly entitled to hold and to express
these sentiments, but not to express them privately
in a memorandum of
“advice” to the Registrar.


31. Justice Sebutinde now leapt into the fray with a judgement-length
“inter-office memorandum” produced overnight. It
was copied not
only to her colleagues and to the Registrar but to the Prosecutor and to the
Deputy Principal Defender, thereby ensuring
that it was seen by the defence
teams. In somewhat extravagant terms, it expressed her opinion that the
Registrar’s request
for advice was ultra vires and that any answer
from her colleagues would be grossly improper and reveal their bias and
conflicts of interest and would compromise
the fair and impartial conduct of the
trial. Judge Sebutinde’s irritation at the turn of events can be well
understood, but
what was required from her – and from the other judges
– was not an inter-office memo but reasoned judgements, so the
matter
could get back on track. The Registrar’s private application for advice
was a mistake and so was the Presiding Judge’s
private answer, but these
mistakes came about because of the delay in delivery of the reasoned judgement.
The next day, 20th May, Judges Doherty and Lussick
handed down their reasons. Judge Sebutinde’s dissent was not appended.
It did not appear
until 5th August, two and a half
months later. That I find its reasoning in some respects persuasive does not
excuse the fact that it was
unavailable at the time it was required by the rules
and needed by the parties, and when it might well have been used as the basis
for a successful application to appeal the majority judgement.


The Reasons: Majority (20 May) Dissenter (5 August)


32. The court’s judgement, delivered on 20th
May, at last revealed the reason why the application to withdraw had succeeded.
The court firmly rejected, by reference to ICTY
precedents, the argument that
lack of instructions could constitute “most exceptional
circumstances”. It pointed out
that “by withdrawing instructions
from their counsel, the accused are merely boycotting the trial and obstructing
the course
of
justice”.[8]
Counsel’s concern that they might be called as witnesses in the contempt
case was nothing to the point and there was no prospect
of any breach of the
English bar code. “If such difficulties were lead counsel’s only
arguments, then the motion must
fail”. It succeeded only and solely
because of the court’s “grave concern... at the threats made to lead
counsel
and their families”. The court took everything that counsel said
at face value (“We do not think that they have made
the application
lightly. They are experienced barristers fully aware of their professional
obligations to their clients and to the
court”) and concluded


We are of the view that lead counsel with their present difficulties, would
not be capable of acting in the best interests of their
clients. We doubt that
they would be able to represent their clients to the best of their ability when,
apart from everything else,
their concern is for their own safety and that of
their families.


33. In other words the court thought that counsel were too scared to
concentrate sufficiently on the defence of their clients. On
that novel ground,
advanced in brief paper submissions without any supporting facts or information,
without medical or psychiatric
evidence of their trauma or inability to
concentrate, or even evidence that they had taken the elementary step of seeking
extra security
or reporting the “threats” to anyone, these two lead
counsel were permitted to part company with their clients and their
contracts.


34. Judge Sebutinde’s dissent, when it eventually appeared, was a
refutation of the arguments that had persuaded the majority.
She pointed out
the gravity of the decision to abandon a client in mid-trial and the breach of
contract and breach of trust involved,
as well as the consequent expense and
delay for the Special Court. She pointed out that the threat had not been
substantiated other
than by averments of counsel themselves in a written
document, not even made from the Bar table. Counsel had chosen to “throw
in the towel” without reporting the threats to any person in authority.
Mr Metzger, she concluded, had no credible reason
to feel threatened while Mr
Harris, who said he had received three threatening phone calls, had recently
written to newspapers attacking
the Trial Chamber and identifying himself as
Brima’s counsel: he may well by that action have made himself a target.
The interests
of justice, she argued, required both men to do their duty and
remain in place. As I have already explained, her reasoning was of
no use to
the defendants because it was not appended to the court’s decision and did
not appear until 5th August – 2½ months
later.


The Consequences of the Decision


35. It is important to emphasise what had happened by this point, because the
reality was lost sight of by the parties in arguing
this appeal. The two lead
counsel, by their own volition and after anxious consideration, had decided they
could not properly or
professionally represent their clients. They had
persuaded the court, by majority, to endorse that decision. Their application
had been couched and granted in terms of a “permission to withdraw”
but the decision – as sought and as delivered
– operated as a
finding that they were incapable of continuing as counsel, not because they
lacked instructions but because
they were in a state of personal fear that that
would disable their performance even if they were to receive
instructions. The decision, made expressly to relieve them from any
professional or contractual obligation to represent
their clients, operated
logically to exclude them from any list of counsel available and willing to lead
for the defence. It meant
– and on 20th May the
Trial Chamber repeated its orders of 12th May –
that the Defence Office had to fill the two lead counsel positions with other
available candidates, and as soon as possible.


36. As a result, there was no way back for Messrs Harris and Metzger, unless
they themselves were prepared to ask the Trial Chamber
to revoke the decision
they had sought and obtained. If, prior to the instruction of new lead counsel
in their place, circumstances
were to change – if the threat to their
lives proved less serious than they had at first apprehended - then they could
ask
the Trial Chamber to reinstate them. They would need to persuade one or
both of the judges who had endorsed their incapacity that
they were now
unfrightened and unfazed: that they had the fortitude to carry out their former
client’s instructions. Unless
and until they were prepared to make such
an application to the Trial Chamber, Messrs Harris and Metzger could not
logically be considered
as counsel available for the defence: in so far as there
was a list of such counsel, they had by their own actions effectively removed
themselves from it. The lawyers in the Defence Office did not appreciate this:
they viewed the issue, simplistically, as a matter
of the defendant’s
right to choose his counsel. (It was, of course, more a matter of
counsel’s right to chose not to
represent his client.) The
defendants’ decision to re-instruct counsel in the future would not
bring back Mr Harris or Mr Metzger. They would have to bring themselves
back
and satisfy the court that they had fully regained their concentration and
resolution. It may have been their reluctance to
do so that caused the Defence
teams and the Defence Office to seek another route to reunite the defendants
with their erstwhile counsel.


THE PROCEEDINGS UNDER APPEAL


37. These proceedings were launched on 24th May, by
co-counsel for Brima and Kamara, as an Extremely Urgent Confidential Joint
Motion for the Reappointment of Kevin Metzger and Wilbert Harris as Lead Counsel
for Alex Tamba
Brima and Brima Bazi Kamara
. There was of course no basis
for confidentiality (see above) but that was the least of the problems
confronting those who brought
this motion, in the teeth of the orders of the
court on 12th May, confirmed by the judgement of
20th May. Until those orders were varied or vacated,
this motion could not get off the ground.


38. The motion itself makes only passing reference to the court orders of
12th and 20th May and the
judgement of the latter date. The Registrar was made the first respondent and
the Acting Principal Defender the second
respondent, and the motion focuses on a
letter from a legal adviser to the Registrar sent on
19th May to the Principal Defender, described as a
formal communication of the Registrar’s decision “not to allow the
reappointment”
of Messrs Harris and Metzger. This was hardly an apt
description: the letter did no more than communicate the Registrar’s
decision to obey the orders of the court. The letter stated


...the Trial Chamber had made an order allowing counsel to withdraw and that
order was to stand. The Trial Chamber confirmed this
order again on
16th May following an oral notification of the desire
to reappoint counsel and the court said that the order had been made and any
letter,
correspondence or documents that seek to go behind that decision cannot
be countenanced by the court.


39. This motion, in a nutshell, seeks judicial review of the
Registrar’s decision to obey the court order, communicated in the
above
letter and confirmed by a subsequent decision, on 25th
May, to remove Harris and Metzger from the Defence Office “list”.
As such, the motion was from the outset a contradiction
in terms. There can be
no basis in law for challenging an official’s willingness to obey a court
order: either the court must
be approached to vary the order or else the order
must be appealed. On this simple ground, the motion should have been struck out
immediately, as an abuse of process, since it was a collateral attack on an
unappealed court order. However, it was entertained
at great length and leave
has now been granted for the majority decision to dismiss it to be made the
subject of this appeal.


40. The fatal flaw is evident in the Relief sought by the motion: it seeks
“in the first place” an order by the Trial
Chamber that “the
Registrar ensure that Messrs Metzger and Harris are reassigned” and
further, that the Principal Defender
must enter into a new legal services
contract with them. How can such orders possibly stand with the court’s
order of 12th May, confirmed on
20th May, which approves Harris and Metzger’s
withdrawal and directs assignment of new lead counsel? This motion is, in
substance
if not in form, an appeal from those orders, and is brought by the
co-counsel who had sought them in the first place.


41. The grant of leave for this appeal may be a tribute to the assiduous
arguments of the parties or a reflection of the unhappy differences
which had
emerged between the Trial Chamber judges. But the fact remains that the motion
itself is fatally and obviously flawed:
however interesting the arguments, it
amounts to a claim that the Registrar and/ or the Public Defender are required
to disobey lawful
order of the court. The order was made, moreover, at the
request of the lead counsel whose co-counsel now seek to circumvent it.
In
truth, it was (as the Presiding Judge apprehended in her response to the
Registrar) a “backdoor” way of challenging
the court’s order
to assign new lead counsel.


42. Quite apart from that logical difficulty, the motion assumes a
jurisdiction in the Trial Chamber to review and indeed to quash
an
administrative decision made by the Registrar. Criminal courts do not normally
have an administrative review jurisdiction and
there is nothing in the Special
Court’s constitutive documents – its Statute and Agreement –
to suggest that Trial
judges have powers to direct the Registrar on financial or
administrative matters. Should his administrative decision impact on
the
defence in a manner which could imperil defendants’ rights, of course, the
Chambers may comment and warn: in the unlikely
event that its warnings are
ignored, the court has a range of protective powers and ultimately the power to
stop a trial for abuse
of process if administrative decisions prevent it from
proceeding fairly.[9]
But administrative actions are for the Registrar, subject to appeal to the
President of the court, who has a supervisory jurisdiction
granted to the
Court’s Statute. The notion that Trial Chambers also have a review power
is said to have been established by
the Brima decision in Trial Chamber 1
and the Registrar in his submissions urges this Appeal Chamber to overrule that
precedent. This is an
important issue, which I will address later in this
judgement.


43. The fundamental basis for challenging the Registrar’s decision
– and by implication the court’s order –
was that it
contravened the right of defendants to have their counsel of choice – a
right said to be guaranteed by Article
17(4)(d) of the Special Court Statute.
That right, as I shall explain, is very qualified and the nature and extent of
the qualifications
need to be spelled out.


44. The other important issue raised by the motion, and in particular by the
responses to it of the Registrar and the Principal Defender,
concerns the powers
of the Defence Office and the degree of its operational independence from the
Registrar. The Principal Defender
and his office is an innovatory and much
applauded feature of the Special Court and it is appropriate for this Appeal
Chamber to
indicate how the rules relating to that office should be interpreted.


45. Other subsidiary issues have been variously raised by the parties in the
course of the appeal and my views on them are sufficiently
reflected in the
comments I have already made on the facts. The point is taken that the robust
comments of the Presiding Judge on
16th May meant she
(and any other colleague who joined in making them) was henceforth disqualified,
for bias, from adjudicating this motion.
The point is misconceived: judges will
in the course of a long case invariably make adverse or even hostile comments,
and sometimes
will brusquely decide interlocutory motions: were they thereupon
to be disqualified for bias, there would be no judges left by the
end of most
cases. The comment was obviously directed at counsel - it revealed no bias
against the defendants themselves.


THE JUDGEMENTS BELOW


46. The Trial Chamber divided, as before, in its disposal of this motion.
The majority – Judges Doherty and Lussick –
dismissed it in their
decision of 9th June. They decided, correctly in my
view, that “this application in reality is simply an application to
reverse a majority
decision given by the Trial Chamber on
12th May 2005.” They also decided, correctly in
my view, that they had no power to interfere with contractual arrangements made
with counsel by the Principal Defender and the Registrar. The court pointed out
that the security concerns “were still in
existence”. The only
evidence before the Court was an email from Mr Metzger which said “We are
content (for the security
issue) to be investigated and for all necessary action
to be taken”. According to paragraph 34 of the motion, this elliptical
comment meant “these threats could be investigated by the Registry and
reasonable steps taken to ensure the safety of counsel
if and when
necessary”. This volte face by lead counsel, who a fortnight
previously had represented that their lives and the lives of their families were
at serious risk,
was viewed suspiciously by the Trial Chamber majority. It
concluded that the motion was “frivolous and vexatious”.


47. It must have been irritating in the extreme for judges to be told that
lead counsel, whom they had taken at their word as being
in fear for their
lives, were now happy to return merely on the basis that the
“threats” could be investigated by the
Registry. It would also have
been strange to be told by the defendants themselves, in sworn statements, that
they had not been warned
by their counsel that withdrawing instructions
“would force my lead to counsel to withdraw”. The court conjectured
that
lead counsel had been insincere in making the original application and that
the motive of the defendants throughout had been to disrupt
the trial. These
inferences did not necessarily follow that might have been drawn. It may well
be that the defendants were genuinely
confused and that lead counsel took an
argument that they thought was available or properly arguable. In an adversary
system, defendants
suffer for the mistakes of their advocates, but courts should
do their best to temper the wind to shorn lambs. It was not necessary
for the
court to find that the motion lacked bona fides: it was sufficient to
find that it was misconceived.


48. The court criticised the Deputy Principal Defender for her failure by
that stage to appoint new lead counsel. I do not think
that criticism would
have been made had the court been shown the evidence submitted to the Appeal
Chamber about the very considerable
efforts that were in fact made within and by
the Defence Office to comply with the court’s order, whilst at the same
time striving
to have it overturned in the interests of the accused. In all the
welter of paperwork that has descended on the Appeal Chamber in
the course of
this case, what does stand out is the devotion to the interests of the
defendants displayed by lawyers in the Defence
Office. The Principal Defender
had resigned and they had no help from lead counsel and they had to deal with
defendants who were
upset and urging them to do the impossible. They had to
deal with an intransigent court and an intransigent Registrar. They made
serious attempts to instruct fresh counsel but it is difficult to obtain
competent barristers able to fly to Sierra Leone at the
drop of a hat for a
period that could last twelve months. The Defence Office lawyers were mistaken
in the belief that defendants
have a “right” to choose counsel, but
they did not seek to subvert the court’s order: their commitment to the
defendants’
interest was conscientious and commendable.


49. As a matter of law, the court’s decision to reject the motion was
correct. There were, however, two statements about the
law made in the course
of its judgement that must be corrected. Neither was essential to the decision
but they may reflect deep-seated
errors. They come at the end of paragraph 51.
The court, referring to its judgement of 20th May,
states “We do not have jurisdiction to revisit that decision...”
This Appeal Chamber has emphasised, more than
once, that Trial Chambers
do have an inherent jurisdiction to revisit and reconsider any
decision, if the circumstances have changed and the interests of justice so
require. There was nothing at all to stop this chamber
from rescinding or
varying its orders of 12th/
20th May if persuaded that lead counsel were now fully
capable of defending their former clients. Had the court done so, this whole
debilitating
case might have been avoided. Of course, the decision might well
have been to confirm the court order, but the problem caused by
counsel would
have been fully and publicly explored and any criticism of those counsel would
have emerged after their side had been
heard.


50. That Trial Chambers have the jurisdiction to reconsider and vary their
interlocutory orders (as distinct from final judgements,
after which they are
functus officio) is well recognised. As a distinguished ICTR
Trial Chamber put it, quite recently,


the Chamber has the authority to reconsider its decisions if satisfied that
the underlying factual premise has changed substantially
in a way that alters
the original
outcome.[10]


So too “the Appeals Chamber has an inherent discretionary power to
reconsider a previous interlocutory decision, for example,
if a clear error of
reasoning has been demonstrated or if it is necessary to do so in order to
prevent an
injustice”.[11]
The Trial Chamber should have been invited to exercise its authority to
reconsider, because the underlying factual premise of its
original decision had
changed substantially. If counsel were prepared to address the court in person
(rather than in elliptical
emails sent to the Public Defender) and assure it
that they were willing now to appear, they may have been permitted to return.
That, I repeat, is what should have happened.


51. The other error, much commented upon by the parties to the Appeal, was
made in the concluding sentence of paragraph 51: “In
any event it appears
that the said counsel are not eligible to be reappointed since they are no
longer on the list of qualified counsel
required to be kept under Rule
45(C).” This point was technical to a fault and in any event spurious:
the counsel were not
eligible for the simple reason that they had withdrawn and
the court had ordered that they be replaced. The “list” and
their
removal from it was a red herring. The “list” is a construct of
convenience. It is a form of registration of
counsel who are willing to be
instructed, because it permits the Principal Defender to examine their
credentials and experience.
They may be removed e.g. for misconduct, but in
such cases the Registrar’s decision is appealable to the President of the
court. The Registrar’s act of removing them from the list was not a
freestanding “decision” of a kind capable
of challenge, but rather a
compliance with the Court orders of 12th/
20th May.


52. The decision of the court was delivered on 9th
June, once again without any dissenting judgement appended to it. The dissent
was filed on 11th July, in the form of a very long and
carefully considered opinion by Judge Sebutinde. Much of it was directed to
criticising, paragraph
by paragraph, the Trial Chamber majority decision
delivered five weeks before. Much as I agree with some of these criticisms,
especially
of the inferences drawn in the course of that decision, I merely
point out that these inferences may not have been drawn at all if
Judge
Sebutinde’s colleagues had had the benefit of her opinion in draft prior
to completing their own. One of the benefits
of collegiality is that it helps
to iron out rough edges and inadvertent errors and over-speculative inferences.
The Trial Chamber
majority throughout this matter has been creditably concerned
to deliver its decisions expeditiously, in order to get on with the
trial. It
would have been better if Judge Sebutinde had joined the exercise, even from her
dissenting perspective, rather than sniping
at errors in her colleagues’
decision months after it had been rendered.


53. For present purposes, the significant features of Judge Sebutinde’s
opinion were:

  1. in
    reliance on Brima, she imputed wide judicial review jurisdiction to the
    Trial Chamber;
  2. in
    consequence, she would accept the motion to quash the Registrar’s decision
    as a freestanding judicial review and not a “backdoor”
    attempt to
    appeal the decision of 20th May;
  3. there
    was a basic right for defendants to choose their counsel, which these defendants
    had exercised on 12th May in choosing to be represented
    by their former lead counsel;
  4. their
    right had been upheld by the Principal Defender, whose wish to reappoint Harris
    and Metzger had been wrongly overruled by the
    Registrar;
  5. it
    followed that the Registrar had been in error to make the decision (on
    19th May) denying the defendants their choice of
    counsel and (on 25th May) frustrating the will of the
    Public Defender by removing both counsel from the list.

54. On these findings, Judge Sebutinde would have ordered the
Principal Defender and the Registrar to comply with the defendants’
choice
of counsel and reappoint Harris and Metzger. Her order, moreover, would have
put them in contempt of the order already made
by the court on
12th/ 20th May in a different
action. Judge Sebutinde’s position, therefore, involved a logical and
legal impossibility. The relief
she would have granted would necessarily
involve the breach of an unappealed order of her own court.


The So-Called “right” to have Counsel of Choice


55. The Statute of the Special Court, in common with the constitutions of
other international criminal courts, makes provision for
defendants to
communicate with their chosen counsel and to have legal assistance of their own
choosing. That provision is made in
Article 17(4)(b) and (d) of the
Statute:


In the determination of any charge against the accused pursuant to the
present Statute, he or she shall be entitled to the following
minimum
guarantees, in full equality...

To have adequate time and facilities for the preparation of his or her
defence and to communicate with counsel of his or her own choosing;
...

(d) To be tried in his or her presence, and to defend himself or herself in
person or through legal assistance if his or her own choosing;
to be informed,
if he or she does not have legal assistance, of this right; and to have legal
assistance assigned to him or her,
in any case where the interests of justice so
require, and without payment by him or her in any such case if he or she does
not have
sufficient means to pay for it.


56. Article 17(4)(b) is not a guarantee of representation by chosen counsel:
it requires that defence counsel chosen by defendants
must be given reasonable
access to them – by adequate facilities to visits and correspondence with
them in prison, and so on.
Article 17(4)(d) gives defendants the right to
defend themselves or pay for legal assistance of their choice. If indigent,
they
have a right to have free legal assistance assigned, if the
interests of justice so require. Importantly, however, this Article does
not guarantee any choice of counsel to those who are indigent. They must
first qualify for assistance a) by establishing that they cannot
pay for lawyers
and b) by being involved in legal proceedings where the interests of justice
require them to be represented. Whether (a) is established will be a
matter for the Registrar to investigate, at various stages of proceedings.

Whether (b) is fulfilled depends upon the nature of the proceedings: there may
be no need for representation at formal appearances,
and in some interlocutory
motions, particularly those involving general points of law, there might be no
injustice in having one
counsel argue the point for all defendants.


57. The important point is that there is not, in terms, any
“right” to counsel for indigent defendants guaranteed by Article
17(4)(d). There is an implication that legal assistance assigned will be
competent and I would go further and find an implication
that legal assistance,
or at least the legal assistance given collectively to the defence in a
particular trial, should be sufficient
to satisfy the “equality of
arms” principle of adversary trial. But there is no right in a
defendant to choose his or her assigned counsel. Those involved in assigning
counsel must act reasonably and in so doing they
must take the wishes of the
defendant into account. But they are not bound by his choice.


58. The right of defendants charged with serious crime not merely to have
counsel, but to choose what counsel they shall have is never
absolute and is
often unrealistic. Lawyers are allowed in courts because they are
professionals, authorised and obliged to say all
that their clients could say
for themselves were they both articulate and learned in law. In order to
function as the client’s
alter ego the barrister must enjoy, at
least to some degree, the respect and confidence of his client and that is more
likely to result if the
client can pick and choose his own professional
mouthpiece. In this sense, a choice of counsel rule assists in the fairness of
the
trial, at least as a matter of perception – in reality, counsel are
sometimes “chosen” by defendants as a result
of their flamboyancy or
touting or high reputation amongst fellow prisoners, and such counsel are not
necessarily good lawyers.
The rule certainly conduces to the efficacy of
adversarial trials, which go more expeditiously and with fewer hitches if
professional
advocates represent and contain their clients. It is more likely
that defendants will instruct and follow the advice of professionals
if they
play a part in selecting them. Although justice – and defendants
themselves – might be better served by a rule
that they could only be
defended by experienced and courageous defence counsel selected for them by the
court or a defence agency,
Anglo-American legal tradition upholds instead the
choice of counsel rule, as an individual right for those who can afford it.


59. The rule is not mentioned in the 1948 Universal Declaration of Human
Rights, but soon (in 1953) found a qualified place as a “fair
trial”
right, in the European Convention, Article
6(3)(c).[12] It was
placed there to reflect a time-honoured practice in English courts of offering a
“dock brief”: when an unrepresented
defendant was brought to the
Bar, the judge would indicate a row of unemployed barristers and invite him to
take his pick of counsel
prepared to defend him for a guinea. The rule thus
served an important human rights purpose of ensuring representation for the
poor,
although a choice made between professional clones in wigs and gowns, on
momentary visual inspection, was hardly an informed choice.
When a statutory
legal aid system was instituted in Britain, a measure of real choice for poor
defendants was provided by the two
tier system of solicitor and counsel. The
solicitor would help the defendant to choose, by providing him with information
about
barristers skilled in the kind of work his case required. This system
offered a degree of quality control (although some solicitors
were prone to
recommend barristers who were friends or relatives, or even members of their
clubs or political parties). The client
could always insist upon his case being
sent to a particular barrister – perhaps because he had read about him in
a newspaper
or had learnt of his prowess from fellow prisoners. The rule was
often meaningless in practice, because counsel of choice were unavailable
or had
clerks who would substitute another barrister from the same chambers at the last
moment. (Royal Commissions in 1981 and 1998
found that many defendants on legal
aid in England and Wales met their counsel for the first time on the morning of
the trial.)


60. Against this background, it might be thought that human rights would be
better advanced by a rule requiring counsel of ability
rather than counsel of
choice. But where the concept of “choice” does have real resonance
is against the practice, in
many repressive regimes, of foisting
government-stooge lawyers on defendants in political trials – i.e. lawyers
who refuse
to defend courageously, or in some cases to defend at all. There are
some countries, still, where it is notoriously difficult to
find lawyers
prepared to act against the government, for men accused of crimes with political
or dissident motivation. A right to
“counsel of choice” especially
if it extends to bringing in counsel from other countries or other Bars, can be
a genuine
protection. The rule, in short, makes it more likely that defendants
will instruct counsel and that counsel will be fully instructed
and that they
will have the benefit of advice that is independent of the government or the
judiciary.


61. Any right to choose one’s counsel is limited not only by practical
considerations of a particular lawyer’s availability,
but by overall
considerations of the interest of justice in ensuring that defendants are
effectively and fairly tried. To this end
they must be adequately represented,
irrespective of their wishes. This principle emerges from the recent European
Court of Human
Rights case of Mayzit v
Russia
.[13] A
legally aided defendant facing complex forgery charges refused no less than
eight qualified lawyers and insisted that he should
be represented by his
unqualified elderly mother and his sister, a speech therapist. The court could
have granted this request,
but given the seriousness and complexity of the case
it appointed a specialist counsel to conduct the defence. The European Court
approved this course, pointing out that the fair trial promises of the
Convention, including the right “to defend himself in
person or through
legal assistance of his own choosing” (Article 6(3)(c)) had to be
interpreted in light of the overall need
to ensure equality of arms;


Article 6(3)(c) guarantees that proceedings against the accused will not take
place without adequate representation for the defence,
but does not give the
accused the right to decide himself in what manner his defence should be
assured... Notwithstanding the importance
of a relationship of confidence
between lawyer and client, the right to choose ones own counsel cannot be
considered to be absolute.
It is necessarily subject to certain limitations
where free legal aid is concerned and also where it is for the courts to decide
whether the interests of justice require that the accused be defended by counsel
appointed by them. When appointing defence counsel
the national courts must
certainly have regard to the defendant’s wishes. However, they can
override those wishes when there
are relevant and sufficient grounds for holding
that this is necessary in the interests of justice.


62. Mayzit v Russia demonstrates that the choice of counsel rule that
applies to European states can be subordinated to the overall interests of
justice.
The court held that the objection to the lay persons chosen by the
defendant was legitimate since the interests of justice would
not have been
served by an incompetent defence. This is not an altogether satisfactory
approach, since the interests of justice
would have been even worse served had
the defendant represented himself, as he was fully entitled to do. It has
always seemed to
me preferable to allow the right of self-defence, aided
whenever the defendant wishes by a friend in court or a “Mackenzie
lawyer”[14] (or
even his mother and his sister) and if the assistance of counsel is required in
the interests of justice then to appoint such
counsel as amicus
instructed by the court to take points on behalf of the defendant, rather than
to impose counsel on an unwilling defendant. That
can be unfair to the
defendant and unfair to the advocate. I do not comprehend how an uninstructed
barrister can sensibly and professionally
represent a “client” with
whom he has not conferred and whose trust he does not possess. It would be
otherwise, of course,
if the barrister had already been chosen and instructed
and the client in mid-trial changed his choice or purported to instruct his
counsel to boycott the trial: there would be no professional embarrassment for
counsel in obeying a directive of the court to remain
and do his best according
to his existing instructions.


63. That Article 17(4)(a) of the Statute of the Special Court does not grant
an indigent defendant the right to counsel of choice
has long been recognised by
the ICTR, which first interpreted an equivalent provision in 1997 in the case of
Ntakirutimana.[15]
This indigent defendant’s claim that 4(d) entitled him to choose a counsel
other than the counsel assigned him by the Registrar
was rejected: “the
formula used for the indigent accused, which is the right “to have
legal assistance assigned to him... and without payment by him in any such case
if (he does not have sufficient means to pay
for it
involves a party other
than the accused in the choice of assigned defence counsel”. As a matter
of interpretation of the plain
words of the Statute, this is obviously correct.
The Human Rights Committee has also declared that ICCPR Article 14(3)(d) does
not
entitle the indigent accused to choose counsel, although the assigned
counsel must be an effective representative. This is the position
taken by the
European Court of Human Rights in Mayzit v Russia: Article 6(3)(c) does
not guarantee the right to choose assigned counsel: the preferences of
the accused should be taken into account but cannot override the interests
of
justice in providing effective representation. In the recent ICTR case of
Bagosora, the Appeals Chamber pointed out:


The appeals chamber has repeatedly emphasised that the right to free legal
assistance by counsel does not confer the right to choose
one’s counsel.
The present practice of assigning counsel is simply to accord weight to the
accused’s preference, but
that preference may always be overridden if it
is in the interests of justice to do so. In addition, the appeals chamber has
confirmed
that counsel may be assigned to an accused even against his
will.[16]


64. Against this weight of jurisdictional authority from the ICTR, it cannot
be seriously contended that the appellants had any right to insist that
Harris and Metzger be reassigned to them. The lawyers in the Defence Office
misunderstood the legal position and
treated these defendants as though they had
a right of veto on assigned counsel. They may well have been led astray by an
early
Trial Chamber 1 decision in Brima, where the chamber wrongly
assumed that the Statute guaranteed a right of choice of counsel to indigent
defendants:


The chamber observes that Article 17(4)(d) of the Statute guarantees to the
applicant, as an indigent, the right to be represented
by a counsel “of
his or her own choosing”. It should be noted that this provision is
mandatory... the chamber will not...
loose sight of the pre-imminently mandatory
and defence protective character of the provisions of Article 17(4)(d) of the
Statute.[17]


65. Unfortunately, Trial Chamber 1 lost sight of the actual words of Article
17(4)(d), which confines the right to defend through
“legal assistance of
his or her own choosing” to those who can pay for it or obtain it pro
bono
; the right to have expensive legal assistance assigned and paid for
from the budget of the court carries no right to insist on the
identity of the
legal assistant provider. It follows that Article 17(4)(d) does not
guarantee the right to choose counsel to any indigent defendant, much less does
it make such choice mandatory. It seeks to protect
indigent defendants by
giving a responsible official the task of ensuring that they have effective
representation. Their wishes,
of course, are taken into account but are not the
overriding factor in the counsel selection. This position, when advanced in
argument
in Brima, was characterised by Trial Chamber 1 as
“superficial, cosmetic, unimpressive and unconvincing” (para 47).
On the contrary,
it was the law, from the plain words of the statute and
repeated decisions of the ICTR. In this respect (and in others – see
below) the Brima decision should not be followed in future.


66. As I understand the position, all defendants at present before the court
claim to qualify as indigent, and have been provided
with lead counsel and a
team of co-counsel. (The only defendant to “appear” by privately
paid counsel has been Charles
Taylor, unsuccessfully contesting the
court’s jurisdiction to try
him).[18] It has been
the task of the Principal Defender to compile a roster of counsel willing to act
and competent to defend in a major
criminal trial. The defendants may express
views about particular counsel on that roster, or suggest outside counsel who
might qualify
to be assigned to them, but the final decision belongs to the
Principal Defender. In the 1997 Ntakirutimana decision the ICTR thought
that some measure of choice might be permitted under its
“Registrar’s List” system:


The final decision for the assignment of counsel and the choice of such
counsel rests with the Registrar... nonetheless, mindful to
ensure that the
indigent accused receives the most efficient defence possible in the context of
a fair trial, and convinced of the
importance to adopt a progressive practice in
this area, an indigent accused should be offered the possibility of designating
the
counsel of his or her choice from the list drawn up by the Registrar for
this purpose, pursuant to Rule 45 of the Rules and Article
13 of the Directive,
the Registrar having to take into consideration the wishes of the accused,
unless the Registrar has reasonable
and valid grounds not to grant the request
of the accused.


67. This envisaged a choice only from the names of counsel already on the
Registrar’s list. Although this modified “choice”
of counsel
appeared as a “progressive policy” in 1997, the amount of litigation
that it spawned since suggests that it
can be retrogressive. The cases and UN
investigations show that defendants bent on disrupting their trials can do so by
choosing
to sack their counsel or “choosing” the services of
unavailable or over-expensive advocates. They show how incompetent
defenders,
such as “ambulance chasers”, can baton onto relatives or tout
amongst support groups. In “fee splitting”
cases, counsel has been
“chosen” because they make a deal to pay the defendant and his
relatives a proportion of their
fee. The Principal Defender system in this
court was designed to avoid these problems, by providing counsel of ability and
independence.
Of course it is more likely to make for a trusting relationship
if the accused had some say in the selection, which is why Public
Defenders
should always canvass candidates and discuss their merits with defendants whose
preferences must be taken into account
in the final selection. But it should
not be necessary for the Public Defender to justify or show good reason for
rejecting a defendant’s
choice – that way litigation lies, as the
ICTR shows. It is sufficient if the Public Defender consults and takes the
defendant’s
preferences into account in a decision that remains his to
take, in the overall interests of justice.


68. My views in this regard are strengthened by the recent ICTR decision in
Bagosora which demonstrates the problems which arise when the Registrar
gives a defendant the repeated opportunity to choose counsel, in that
case after
his lead defender (a previous choice of his) had been disqualified for
corruption half way through a long trial. When
the Registrar eventually grasped
the nettle and “imposed” an experienced defence counsel who was
familiar with the case
(he had been co-counsel for a co-defendant) the accused
refused all cooperation with him and so the newly assigned counsel sought
to
withdraw. His application was refused: “an accused is not permitted to
unilaterally sabotage the preparation of a defence
by refusing to
cooperate”.[19]
Neither the code of his home Bar Association (which required withdrawal in the
event of lack of client cooperation) or his own difficulties
in taking
instructions from this truculent accused, were sufficient to override the
interests of justice in having the man properly
defended.


Withdrawal by Counsel


69. The court must try fairly those who do not want to be tried at all, and
that may mean imposing duties on counsel to continue defending
men who cease to
instruct them. Where counsel has been in place for some time, it makes some
sense to speak of him continuing to
“represent a client” from whom
he has previously taken instructions. However, it is odd to pretend that
counsel assigned
to a defendant who refuses to instruct him from the outset is
“representing” that client, since no professional counsel
could
accept as a client a person who refuses all communication with him. In such
cases, the assigned counsel should be designated
as an amicus – he
is there to serve the interests of justice by taking all legal points that might
help the accused, but he does not have
the accused as a client pursuant to a
proper professional relationship of confidence and trust. He may be defence
counsel, but he
is not counsel for the particular defendant. He is counsel for
the court, brought in to ensure that all points are taken that could
assist the
accused. I accept that Rule 60 provides the defendants who escape or refuse to
attend court “may be represented...
as directed by a judge or trial
chamber” and that under this Rule counsel have been ordered to
“represent” men
who refuse to recognise the
court.[20] But if in
this situation they have to operate without ever having had any instructions
from the defendant, it would be best to reflect
this fact by designating them as
amici. To say that they are “representing” a client gives a
false impression and causes professional concern. If the defendant
has chosen
to defend himself, and is doing so in a rational manner, trial courts should in
general avoid imposing amici lawyers: this is an expensive, condescending
and time-consuming step.


70. This court has a comprehensive Directive on the Assignment of
Counsel
which was approved by the President and came into force on
3rd October 2003. It implements Article 17(4)(d) of
the Statute by placing the duty to assign counsel upon the Principal Defender,
after
a request for such assignment (which is not a request for assignment of
any particular counsel). If the conditions – poverty
and the interests of
justice – are met, the Principal Defender shall assign a named counsel
from his list of those counsel
who are qualified for assignment, after
consultation with the suspect or accused (Article 9). The direction is
careful to avoid any implication that the accused has an right to choose
counsel – consultation is all that is required.


THE PRINCIPAL DEFENDER


71. In international courts, in any event, it can be much more difficult to
implement preferences for advocates, especially by indigent
defendants. There
is no “cab rank rule” of international practice which obliges
barristers to leave their cities and
circuits when offered a brief in a war
crimes court in a far-off country. Defendants may know of distinguished local
lawyers, but
they will be few and far between in a country emerging from war.
At Nuremberg, after the English Bar Council refused to allow its
members to
defend the Nazi leaders, the quality of the German lawyers prepared to accept an
unpopular brief was poor. At the ICTR
and ICTY, where the Registrar has been
responsible for allocating briefs, honouring a counsel of choice rule has in
some cases had
unattractive consequences and encouraged practices that have
damaged international justice. So from the outset the SCSL judges and
Registrar
were determined that they should not happen here. That is one reason why a
“Principal Defender” with a defence
office was established, to
effectuate the choice of counsel rule in a way which would ensure quality
control and eliminate corrupt
practices.


72. The lawyers in the Defence Office of this court have the task of
recruiting experienced defence counsel from the various Bar Associations
of the
world as well as from the Sierra Leone Bar and these counsel must be prepared to
commit themselves to represent defendants
throughout lengthy trials. They are
entered on a register (the “list”) kept by the Defence Office, which
collects relevant
information about their professional records. When a
defendant needs to choose a lead counsel, or a new lead counsel, the Defence
Office lawyers will inform their choice by providing them with details of
counsel on the list and discussing which of them might,
subject to availability,
be appropriate to lead their defence. The Defence Office lawyer in this respect
performs the function of
an instructing solicitor, informing and advising a
defendant about counsel whom they have vetted for independence and ability.
Once
the defendant has expressed any preference, and the Principal Defender has
made a final decision and confirmed availability, he will
enter into a contract
with the lead counsel. At the relevant time, these were “block”
contracts where the lead counsel
was guaranteed a large one off payment but from
that sum she or he had to pay co-counsel as well as investigators whom they
would
contract separately for their defence team. Thus every indigent defendant
charged in this court has substantial funds devoted securing
a high quality
legal assistance, and the defence teams as well are allocated offices in the
Court precincts and have access to a
well-stocked library, computer terminals
and may draw on the resources of the Defence Office. Thus “equality of
arms”
is meaningfully achieved, by a system that takes account of the
defendant’s preferences for counsel, but ensures that counsel
has ability.
It is a system that works, but a system that can be thrown into disarray if lead
counsel have to be replaced in mid-trial.


73. That can happen for any number of reasons. The most common example, in
this and other courts, is when the defendants purport
to sack their counsel
– whether as a general protest against the trial or because of some
genuine personality conflict. Counsel,
too, may wish to withdraw – for
family reasons or because the trial is taking too long or the living conditions
in Sierra Leone
are difficult or because of illness (in the case of Mr
Brima’s first counsel, sadly, because of death). The consequences of
withdrawal are very damaging – disruption of the trial, difficulty for the
defendant, great expense for the court which has
to find a new counsel who must
be paid to begin from scratch. So international criminal courts have devised
rules that make it difficult
for defendants to sack their counsel and for
counsel to sack their clients.


74. Once counsel is assigned to an indigent defendant, the assumption –
certainly of the contract which is made with the lead
counsel by the principal
defender – is that the relationship will continue until the trial
concludes. If the defendant wishes
to end that relationship and obtain
different counsel, the position is governed by Rule 44(D):


(D) Any request for replacement of an assigned counsel should be made to the
Principal Defender. Under exceptional circumstances,
the request may be made to
a Chamber upon good cause being shown and after having been satisfied that the
request is not designed
to delay the proceedings.


This sub-rule provides a necessary degree of flexibility in accommodating a
defendant’s wishes, without endowing him with any
“right” to
change counsel. If the breach of relationship is sought at an early stage,
before the trial starts, it may
be relatively easy and inexpensive for the
Principal Defender to substitute lead counsel. The Principal Defender will
balance the
interests at stake: on the one hand, the reasons why the defendant
wants fresh counsel and on the other hand the potential for disruption
and the
expense of granting that wish. If the Principal Defender cannot or will not
grant the request, then if the circumstances
are “exceptional” it
may be renewed in front of the Trial Chamber, which must be satisfied that there
is good reason
for the change and that it is not motivated by any wish to delay
proceedings. Even if these conditions are satisfied, the Chamber
is not obliged
to order a replacement. Its discretion will be exercised in the overall
interests of justice, accepting the desirability
of an accused person being
represented by counsel in whom he has confidence, if that can be achieved
without unnecessary expense
or disruption. Since there is no right under Rule
17(4)(c) to choose one’s counsel there is, a fortiori, no right to
choose one’s counsel for a second or third time.


Withdrawal by Counsel: the “most exceptional circumstances”
test


75. The Rules make it rather more difficult for chosen counsel to disengage
from his client. Rule 45(E) provides:


(E) Subject to any order of a Chamber, counsel will represent the accused
and conduct the case to finality
. Failure to do so, absent just cause
approved by the Chamber may result in forfeiture of fees in whole or in part.
In such circumstances
the chamber may make an order accordingly. Counsel
shall only be permitted to withdraw from the case to which he has been assigned
in the most exceptional circumstances
. In the event of such withdrawal the
Principal Defender shall assign another counsel who may be a member of the
Defence Office,
to the indigent accused.


76. The severity of this sub-rule reflects the gravity of abandoning a client
charged with a very serious crime and facing a lengthy
prison sentence if
convicted. It is not a rule that applies only to war crimes courts – the
“most exceptional circumstances”
test is found in many codes of
conduct for barristers in common law
countries.[21]
Essentially, it is a core professional duty imposed on all who defend persons
accused of serious crime. No matter how inconvenient
to their lives or how
detestable their client or how sick they are or how threatened they feel, a
barrister must stick with a client
to the end of the trial. The English Bar is
much given to celebrate the courage of its members, often in words used by Lord
Brougham
to praise himself for defending Queen Caroline:


An advocate, by the sacred duty which he owes his client, knows in the
discharge of that office but one person in the world, that
client and none
other. To save that client by all expedient means – to protect that
client at all hazards and costs to all
others, including himself, is the highest
and most unquestioned of his duties; and he must not regard the alarm, the
suffering, the
torment, the destruction which he may bring upon any other. He
must go on, reckless of the consequences... even if his fate it should
unhappily
be, to involve his country in confusion for his client’s protection.


This sounds hyperbolic today, but its sentiments are still reflected in most
Bar codes: the advocate has a professional duty “to
promote and
protect” fearlessly and by all proper and lawful means his lay
client’s best interests and do so without
regard to his own interests or
to any consequences to himself or to any other person (including his
professional client or fellow
members of the legal
profession).[22]


77. It is against this background that Rule 45(E) imposes the “most
exceptional circumstances” test. Exceptional is not
used in the sense of
“novel” or “unusual”: the circumstances which impel
counsel to seek permission to withdraw
must truly be compelling. Some allowance
will be made if the trial has not commenced, hence a number of counsel who were
assigned
to take jurisdictional points at the outset have been permitted to
withdraw before the stage of preparation for the trial
proper.[23]
“Most exceptional circumstances” might include a serious permanent
injury or a major chronic disease; for a foreign
counsel it might include a
judicial appointment in the home state or the injury of a partner which leaves
counsel to care for young
children. It would not include the offer of a more
lucrative brief elsewhere or even loss of earnings through unexpected length
of
the trial. What will amount to “most exceptional” circumstances
cannot be predicted in advance or stated in some
more comprehensive formula.
Contrary to Lord Brougham’s rhetoric, no advocate can be expected to risk
his life to continue
defending a client, but that risk must be credible and
imminent and incapable of being guarded against other than by leaving the
client
and the country. It must be such that counsel of reasonable fortitude would see
no alternative but to withdraw.


78. In the ordinary course of modern practice at the Bar of England and
Wales, the fearless advocacy required may be little more than
to stand up to a
grumpy judge or endure the whispered instructions of a solicitor with halitosis.
But in the wider world, lawyers
who defend – and prosecute, and sit as
judges – must in some places show real courage: they have an obligation to
display
bravery, although not bravado. Lawyers who act for unprepossessing
people accept many risks in many countries ranging from career
discrimination to
acid attack (the fate of defence counsel for John Demjanyuk in Tel
Aviv).[24]
Prosecutors too can suffer assault and there have been a number of judicial
fatalities: Marquez reminds us of the low-salaried Columbian
jurists who in the
1980s were faced with the impossible choice of granting bail to narco-terrorists
or being assassinated - “The
most admirable and heart-rending thing is
that over 40 of them chose to
die.”[25] No
court can put a lawyer in that impossible position, but equally no lawyer can
expect a court to relieve him from his professional
duty simply because he has
received threats and done nothing about them.


79. This is a war crimes court that sits at the scene of its alleged crimes,
very shortly after the end of the war. That location
has many advantages, in
enabling victims to see justice done and to involve local lawyers in the process
and to help engender respect
for restoration of the rule of law. It does mean
greater provision for security staff and judges and lawyers: there have been
threats
made, especially at the outset, against SCSL prosecutors and judges and
there are still threats against witnesses. But Freetown
is not Baghdad. The
security that is in place protects all defence counsel in the precincts of the
court and can be extended on
reasonable request, as both these counsel seem
subsequently to have accepted. Mr Metzger says in his email that in any event
that
“threats” were a “secondary argument”: it may have
been better if they had not been made the subject of argument
at all. It was an
argument that did not deserve to succeed although succeed it did – perhaps
as an “own goal”
for the defence.


80. Serious threats which affect counsel’s performance could amount to
a “most exceptional circumstance”: endogenous
or pathological fear
is debilitating and no defendant should have to put up with representation by
counsel who suffer from it. The
Trial Chamber majority found that these counsel
were so affected by the threats that they could not adequately concentrate on
their
client’s case and that this state of their minds would continue for
the foreseeable future: on this basis it permitted them
to withdraw. I can find
little evidential support for the court’s conclusion, but two very
experienced criminal trial judges,
having observed the two counsel in question,
were entitled to reach it, having been asked to do so by those same counsel.
They concluded
that these counsel were and were likely to remain in no fit state
to concentrate on the representation of their clients, and on that
basis they
made appropriate orders which have not been appealed.


81. It follows that neither the order of the court of
12th/ 20th May nor its
implementation by the Registrar involved any infringement of the guaranteed
rights of the accused. There is no guaranteed
“right” to choice of
counsel, although the Defence Office must carefully consult with indigent
accused prior to engaging
counsel for them. They have no right of veto over
what in the end is a Defence Office decision. These particular defendants, by
withdrawing their instructions from their chosen counsel, produced a situation
in which those counsel sought to withdraw and permission
was accorded by the
court on the basis that counsel were incapable through fear of acting in their
best interests. Its order to
assign fresh counsel was properly made under Rule
45(E): the Registrar and the Defence Office were bound to comply. Although the
defendants then changed their position and expressed a wish to have their former
lead counsel return, that preference could not be
accommodated so long as the
Trial Chamber order, based on a finding of their incapacity, remained. There is
no right to be represented
by an incapable counsel, and the Public Defender has
a duty not to assign incapable counsel. It follows that these defendants could
not have their preferred counsel other than by asking for the orders to be
reconsidered or seeking leave for an interlocutory appeal.
They did neither.


The Registrar and the Principal Defender


82. The alternate basis of this motion is that the Registrar was acting
ultra vires in countermanding the decision of the acting Principal
Defender that the previous lead counsel should be reassigned. The Registrar
responds that the office of Principal Defender is not contained in the
court’s constitutive documents. Article 16(1) of its
Statute provides
that “The Registry shall be responsible for the administration and
servicing of the Special Court
and Article 4(1) of the Agreement goes
further:


Article 4. Appointment of a Registrar


The Secretary General, in consultation with the President of the Special
Court, shall appoint a Registrar who shall be responsible
for the servicing of
the Chambers and the Office of the Prosecutor, and for the recruitment and
administration of all support staff.
He or she shall also administer the
financial and staff resources of the Special Court.


83. The staff of the Defence Office and its head the Principal Defender, are
all “support staff”, and have no independent
authority to disobey or
ignore a direction from the Registrar – in this case, not to reappoint
Messrs Harris and Metzger.
Judge Sabatindi concluded that the Rules give the
Public Defender an extra statutory independence, on the basis of the intention
of the Management Committee and the plenary in 2003, at the time the Defence
Office was established. In order to examine her argument,
it is necessary to
explain how that office came into being. It is not an office that existed in
any other court at the time it was
created.


84. The genesis of the Principal Defender and his office is to be found in
the “Public Defender Proposal” submitted to
the Management Committee
in a note from the President of the court on 7th
February 2003, before any indictments had been preferred. This document does
not seem to have been available to Judge Sebutinde
so I append it to this
opinion. It begins:


International criminal courts have yet to devise a satisfactory means of
attracting only experienced, competent and honest defence
counsel, so as to
comply with the human rights principle that adversary trials should manifest an
“equality of arms”
(i.e. reasonable equivalents of ability and
resources between prosecution and defence).


The paper went on to criticise the “Registrar’s List”
system adopted by other tribunals, which a UN audit committee
had found an
unsatisfactory means of excluding incompetent or corrupt defence
counsel.[26]


85. The core proposal of this paper was to establish in the SCSL of a Defence
Office headed by a “Principal Defender”,
who would have a status
equivalent to the prosecutor or deputy prosecutor. The office would be staffed
by trial lawyers who “will
have been in unblemished practice, specialising
in criminal or international human rights law, for at least seven years: they
must
have a reputation for fearless and independent representation of defendants
charged with serious crimes”. The Principal Defender
would be


“an experienced criminal trial lawyer with a reputation for able and
fearless defence and some proven administrative ability.
His duties will
include setting up and staffing a defence support unit; assigning and retaining
counsel for indigent defendants;
making arrangements for bail applications;
conducting (either personally or by assigning other counsel) legal arguments for
indigent
defendants or as an amicus at interlocutory, trial and appeal
stages; directing such investigation, research and the like as appears necessary
for adequate
preparation of assigned cases on behalf of indigent clients;
providing assistance as requested to the court, the Registrar, and to
counsel
retained privately by other defendants.”


86. The “Public Defender” proposal was approved in principle by
the Management Committee in February 2003 and left to
the Registrar and the
President to implement through changes to the Rules. Unfortunately, budgetary
constraints prevented the offer
of a Principal Defender salary sufficient to
attract trial counsel of equivalent distinction and trial experience to that of
the
Prosecutor and Deputy Prosecutor, but nonetheless, the lawyers who have
staffed the office have played a vital part in representing
defence interests
during the drafting of the Rules of evidence and procedure, and then
subsequently functioned in effect as solicitors
in obtaining the services of
experienced counsel and instructing those counsel to appear for defendants at
their trials. The Principal
Defender, as envisaged by the Court President, was
an independent office that should ideally have been entrenched in the Statute
of
the court. However, that Statute had been agreed between the UN and the
Government of Sierra Leone in 2002, and no amendment
was feasible. For that
reason, the Office had to be created by way of an amendment by the Plenary of
Judges to Rules which were
inherited from the ICTR and provided in Rule 45 for
the “Registrar’s List” system. So a new Rule 45 was devised
which retained the reference to a “list” of potential trial counsel,
but placed it in the hands of the Principal Defender,
who was entitled to add
members of his office to this roster. The amended Rule 45 provides as
follows:


Defence Office


The Registrar shall establish, maintain and develop a Defence Office, for the
purpose of ensuring the rights of suspects and accused.
The Defence Office
shall be headed by the Special Court Principal Defender.


(A) The Defence Office shall, in accordance with the Statute and Rules,
provide advice, assistance and representation to:

(i) suspects being questioned by the Special Court or its agents under Rule
42, including non-custodial questioning;

(ii) accused persons before the Special Court.


(B) The Defence Office shall fulfil its functions by providing, inter
alia
:

(i) initial legal advice and assistance by duty counsel who shall be situated
within a reasonable proximity to the Detention Facility
and the seat of the
Special Court and shall be available as far as practicable to attend the
Detention Facility in the event of being
summoned;

(ii) legal assistance as ordered by the Special Court in accordance with Rule
61, if the accused does not have sufficient means to
pay for it, as the
interests of justice may so require;

(iii) adequate facilities for counsel in the preparation of the defence.


(C) The Principal Defender shall, in providing an effective defence, maintain
a list of highly qualified defence counsel whom he believes
are appropriate to
act as duty counsel or to lead the defence or appeal of an accused. Such
counsel, who may include members of
the Defence Office, shall:

(i) speak fluent English;

(ii) be admitted to practice law in any state;

(iii) have at least seven years relevant experience; and

(iv) have indicated their willingness and full-time availability to be
assigned by the Special Court to suspects or accused. [...]


87. This Rule does not fully implement the original proposal, in part for the
very practical reason that it was necessary to set up
the Defence Office as soon
as possible: the first indictments were signed on 8th
March, 2003. The Office was established in effect as a public solicitor, with
advocacy services at the pre-trial stage and defence
support subsequently. This
was a model urged at the time by an influential Report from “No Peace
Without Justice”, which
strongly supported the Public Defender proposal
but argued that the Defence Office should be confined to solicitor’s
work.[27] This Report
accepted that “there is no requirement in the Statute of the Special Court
that an indigent accused should be
provided by the Court with a free, or indeed
any, choice of legal representation”, but argued for a modified and
reformed “list”
system, under control of the Defence Office, on the
ground that “a defendant who has had some degree of choice of counsel is
far more likely to have confidence in him or her”. Thus the new Rule 45
evolved in an attempt to have the best of both worlds:
it was approved
unanimously by plenary of all judges in the first week of March 2003.


88. That the Principal Defender and his office fall under the administrative
supervision of the Registrar is thus an historical anomaly:
in future courts,
the office should be an independent “fourth pillar”, alongside the
judiciary, the Registry and the
Prosecutor. But the anomaly remains a reality
nonetheless in this Court, and the Principal Defender must make the best of it,
although
the Registrar should act so far as possible in the spirit of the Rule,
by allowing the office an operational independence. The court’s
second
Annual Report notes:


Whilst the Principal Defender and the Office of the Principal Defender
technically fall within the Registry of the Special Court,
the Principal
Defender acts independently from other organs in the interests of justice. In
October 2004, the Principal Defender
proposed changes to the Special Court
statute and other relevant documents, aimed at formalising the office’s
contemplated
full independence. As of the writing of this Annual Report, the
government of Sierra Leone along with the Special Court’s
President,
council of judges, Registrar and Management Committee have endorsed that
proposal. The proposal is currently being reviewed
by the United Nations and it
is hoped that the office of Principal Defender will eventually become as fully
independent as the office
of
Prosecutor.[28]


89. To this I can only say “Amen”, and add that the status and
salary of the Principal Defender will have to increase
to the level of that of
the court’s prosecutor, so as to attract a QC or an advocate of equivalent
ability and “equal
arms”. The very fact that this constitutional
change has not yet been effected emphasises that, for the present, the unamended
Statute governs and entitles the Registrar to give directions to the Principal
Defender, who is a member of his staff.


90. In this case the Registrar was not only entitled, but in my view bound,
to direct the acting Principal Defender to comply with
the order of the court
and to reassign lead counsel. If the directive on 19th
March was somewhat precipitate, that of the 25th March
– after the decision on the 20th, and after the
time for seeking leave to appeal had passed – was inevitable. The
Registrar cannot permit any department or
member of staff to disobey a court
order. When the Principal Defender is given statutory independence, I would
expect the office
to be filled by a QC or equivalent who would have had the
confidence and clout to summon Messrs Harris and Metzger and to insist
that the
Trial Chamber listen carefully to their case for reassignment to the defendants.
If the Chamber declined to revise its order,
the Principal Defender might seek
leave to appeal it, but would in the meantime be bound to comply with it.


Does the Trial Chamber have jurisdiction to review the
Principal Defender and Registrar?


91. This motion seeks to quash a decision of the Registrar and to order the
Principal Defender to enter into fresh contracts with
Messrs Harris and Metzger.
It seeks, in other words, public law remedies akin to certiorari and
mandamus and assumes that the Trial Chamber has wide supervisory powers
of judicial review against court officials. This is a surprising
assertion:
criminal law courts have an inherent jurisdiction to protect their proceedings
and, if justice cannot be done, to halt
a trial for abuse of process, but there
is nothing in the court statute which suggests that the judiciary have a general
power to
reverse or interfere with administrative decisions. Quite the
contrary: the Registrar is responsible only to the President of the
court and to
the Court’s Management Committee for his administrative decisions (see
Special Court agreement 2002 Ratification
Act 2002). This is emphasised by Rule
19 and Rule 33(a):


Rule 19 Functions of the President


The President shall preside at all plenary meetings of the Special Court,
coordinate the work of the chambers and supervise the activities
of the Registry
as well as exercise all the other functions conferred on him by the agreement,
the Statute and the Rules.


Rule 33 Functions of the Registrar


The Registrar shall assist the chambers, the plenary meetings of the
Special Court, the council of judges, the judges and prosecutor,
the Principal
Defender and the defence in the performance of their functions. Under the
authority of the President, he shall be
responsible for the administration and
servicing of the Special Court and shall serve as its channel of communication.


92. There are a few instances in the Rules and the directives which may
specifically bring an administrative act within the oversight
of a Trial
Chamber: the special jurisdiction to examine any refusal to assign counsel at a
preliminary stage is one such (see Directive Article 12). Otherwise, the
Trial Chamber is a criminal trial court in which administrative law powers have
not been vested by statute
and nor are they deducible from practices and
precedents in other courts. Indeed, as Ntahobali shows, ICTR Trial
Chambers disavow any supervisory
jurisdiction.[29]


93. Any arrogation by trial chambers to themselves of some general right to
supervise the Registrar and his officials would conflict
with the supervisory
powers of the court President under Rules 19 and 33, and so breach the principle
that judicial review will not
be granted where there is an alternative and
established remedy. It would also cut across the overall administrative and
financial
policy supervision of the Management Committee, to which the Registrar
reports. The supervisory jurisdiction of the President has
been described at
the ICTR by Justice Pillay:


While the Registrar has the responsibility of ensuring that all decisions are
procedurally and substantially fair, not every decision
by the Registrar can be
the subject of review by the President. The Registrar must be free to conduct
the business of the Registry
without undue interference by Presidential review.
...the decision sought to be challenged must involve a substantive right that
should be protected as a matter of human rights jurisprudence or public policy.
An application for review of the Registrar’s
decision by the President on
the basis that it is unfair procedurally or substantively, is admissible under
Rules 19 and 33(a) of
the Rules, if the accused has a protective right or
interest, or if it is otherwise in the interests of
justice.[30]


94. I endorse these remarks, and note that in the ICTR the President’s
supervisory jurisdiction in relation to disputes over
the Registrar’s
decisions on assignment of lead counsel is well
established.[31] It
would be subverted if a parallel and overlapping jurisdiction were to be
asserted by trial chambers – both of them –
to order the Registrar
and his officials to do this or that and to quash their decisions and order them
to enter into or not enter
into contracts.


95. This question becomes more pointed when the provisions of Article 24 of
the Directive on Assignment of Counsel are considered. The relevant
parts provide:


Article 24: Withdrawal of assignment in other
situations


A. The Principal Defender may:


i) in exceptional circumstances, at the request of the suspect or accused, or
his assigned counsel, withdraw the assignment of counsel;


E. Where a request for withdrawal, made pursuant to paragraph A, has been
denied, the person making the request may seek review of
the decision of the
Principal Defender by the presiding Judge of the appropriate Chambers.


96. This procedure does not appear to have been followed. According to the
Directive, Messrs Harris and Metzger should first have
applied to the
Principal Defender to have their assignment withdrawn, and her reasoned
refusal should then have been submitted to the Presiding Judge for review under
Article 24(E). Had that procedure been followed, it may well be that the
Principal Defender’s decision (and she was opposed
to their withdrawal)
would not have been quashed on judicial review grounds as unreasonable. The
point, of course, is that the Directive sets out a specific procedure for
counsel to follow in seeking withdrawal in a case alleged to have “most
exceptional circumstances”
and it empowers the Presiding Judge of the
Trial Chamber seized with the matter to overrule an initial refusal by the
Principal Defender.
This is an example of a review power specifically delegated
to a member of the Trial Chamber by direction of the President. It
would have
been unnecessary had the Trial Chamber already possessed a general supervisory
power over the public defender and the
Registrar, pursuant to its inherent
jurisdiction. I should pause to mention that although no argument was addressed
to this point,
I am not convinced that Directive 24E is compatible with Rule 45E
(set out at para 75 above). Although badly expressed (“...absent
just
cause...”) the Rule does seem to give the Trial Chamber, and not its
Presiding Judge, the power to approve withdrawal.
Since the Rules must govern,
and any Directive must be read so as to comply with them, this would legitimise
defence counsel’s
course in bringing the application before the full
chamber. The issue does not affect the resolution of the appeal, but the
drafting
of Rule 45E and its compatibility with 24E of the Directive should
engage the attention of the next judicial plenary.


97. The appellants relied on the decision in Brima, decided on
6th May 2004, when Trial Chamber 1 carved a wide
judicial review power out of its inherent jurisdiction. It struck down as
ultra vires a decision by the acting Principal Defender to ask a sick
lawyer to provide a medical certificate before being assigned to defend
Mr
Brima. The Registrar argues in this appeal that Brima was wrongly
decided and points out that the lawyer died shortly after the court had ordered
his officials to enter into a contract,
leaving the brief fee no doubt to his
estate and leaving Mr Brima unprotected. The argument that a decision is wrong
in law because
it had absurd results does not necessarily follow, although it
does invite closer examination of how Trial Chamber 1 assumed a general
supervisory power to interfere with administrative decisions. All the more so
since Brima on this point conflicts with a decision of the ICTR in
Natahobali that no such power exists, save for the supervisory role of
the President of the Court.


98. The complaint in Brima could not be heard as a preliminary motion
under Rule 72B(iv) because it was outside the time limits there provided and
could not
come before the court under Articles 12(A) and 24(E) of the
Directive because the Principal Defender had not refused to assign
counsel but had imposed a condition on that assignment. He had asked a
temporarily
assigned counsel who had been absent from several court dates
through sickness, to provide a medical certificate or else undergo
a check-up,
paid for by the defence office, before a decision was taken on whether
permanently to assign him. The court, as has
already been pointed out, misread
Article 17(4)(d) and thought that it guaranteed counsel of choice to indigent
defendants. It thought
that requiring a medical certificate from counsel chosen
by Mr Brima was a breach of that guarantee, notwithstanding the terms of
Article
4(C) which require the Public Defender to provide an “effective
defence” by a counsel who has indicated his “full-time
availability” and notwithstanding the Directive requirement
(Article 13(C)(vi)) that counsel must substantiate their availability for the
following eighteen months before they can
be assigned. Against that background,
I would have thought it irresponsible for the Principal Defender not to
insist upon medical evidence of the future health of any counsel previously
affected by illness: it would be a breach of Rule
45(C) to assign a chronically
ill lawyer to an accused, no matter how much that accused wished for his
representation. It would
not be “effective” representation nor
cost-effective representation. Nonetheless, the Trial Chamber decided that the
decision must be struck down and did so on grounds that it was ultra
vires
“not only because he did not have the statutory empowerment to
so act, but also because he acted in excess of and beyond the
limits of the
statutory empowerment and authorisation of the Principal Defender whose
functions he was purportedly exercising”.


99. To apply – in my view to misapply – the administrative law
doctrine of ultra vires, the Trial Chamber invoked its inherent
jurisdiction. This jurisdiction exists to enable a court to fulfil its
fundamental duty
of providing a fair and effective trial, by shaping its
procedures to that end. It can go so far as to stop an unfair trial in its
tracks by declaring it an abuse of process of the court. This may be a reaction
to an unfair decision of the Registrar – e.g.
to starve the defence of
funds – but it does not involve the exercise of a judicial power over him.
The Trial Chamber cited
various ICTR decisions which establish the inherent
jurisdiction to deal with abuse of process, but these cases are not authority
for the proposition the court derived from them, namely “we rule that the
court’s inherent jurisdiction does extend to
the control and supervision
of officers of the court in the exercise of their statutory and related
functions”.[32]


100. This ruling was an error. There was no authority for it, and it
conflicted with the ICTR precedents. It usurped the supervisory
role allocated
by the Statute and Agreement to the President of the court and (as the
Registrar’s employer) to the Management
Committee. The court’s
Agreement and Statute calls for judges qualified in international and criminal
law, not in administrative
law. The Trial Chamber embarked on some discussion
of the maxim delegates non potest delegare, by which it concluded that
the Acting Public Defender “could not perform the duties that he purported
to be performing nor
could he take decisions in relation thereto and that if he
did, as indeed he did, it was ultra vires his powers and that
consequently the said decisions were null and void.” The maxim is not a
principle of administrative law,
but rather a test to ensure that statutory
discretions are exercised by the proper
authority.[33] In a
quite common situation where an Acting official has been appointed to a position
which had not yet been permanently filled,
and has taken a proper decision which
had the full support of the Registrar, there can be no basis for a Trial Chamber
to declare
that decision ultra vires.


101. In my judgement, the decision in Brima should not be followed.
Trial Chambers have specific powers to review certain administrative acts, and
Directives issued by the President
of the Court may delegate his supervisory
power to the Trial Chamber or a member thereof in respect of particular matters

such as reviewing a Principal Defender’s decision to reject an
application to withdraw counsel. Otherwise, Trial Chambers
have no general
administrative jurisdiction. They may invoke an inherent jurisdiction, where
the rules and directives are silent,
to ensure that trial progress is effective
and fair and they may complain and warn about any administrative acts which
adversely
affect their work. Otherwise, they must observe the distinction
between the judicial function of the chambers and the administration
of the
court, which is subject to the supervision of the President in the manner
outlined by Justice Pillay and to the policy direction
of the Management
Committee.


CONCLUSION


102. This motion is itself an abuse of process because it seeks to reverse an
order of the court not by appeal or by a request for
variation, but by reviewing
a decision of the Registrar to implement it. I concur with my other colleagues
that the motion must
be dismissed. In respect of the arguments addressed to
this Appeals Chamber by the parties, I have reached the following conclusions:


(i) Dissenting or concurring opinions must be appended to the judgement of the
court and in a timely manner. If such opinions are
not prepared so as to be
available for appending within a reasonable time, the majority of the trial
chamber may, at its discretion,
proceed to deliver its judgements without
further delay.



(ii) Motions should not be filed as “confidential” unless reasons
are given and the classification must be reviewed by
the court as soon as
practicable and thereafter kept under review.



(iii) Article 17(4)(d) of the Statute does not vouchsafe to an indigent
defendant the right to choose counsel. Assignments will
be made by the
Principal Defender from a roster of counsel qualified according to Rule 45(C),
although there is a duty to consult
with a defendant and to take his preferences
into account before an assignment is made.



(iv) “Exceptional circumstance” requests by defendants or counsel
should be made, in conformity with the directive, to
the Principal Defender,
with Presiding Judge/ Trial Chamber review only in the event of any refusal.




(v) Withdrawal of instructions does not qualify, per se, as a
“exceptional circumstance” and nor do threats, unless they are
proved to be such as render counsel incapable of
defending his client or such as
to make counsel of reasonable fortitude fear for the safety of themselves or
their families.



(vi) Trial Chambers have inherent jurisdiction to rescind or vary orders and to
reconsider interlocutory judgements if there has
been a change of circumstances
which has removed or altered the basis of the original order.



(vii) Trial Chambers do not have jurisdiction to supervise administrative
actions of the Registrar or his officials, other than such
specific jurisdiction
as is bestowed by the Rules or by Directives of the President.



(viii) Until such time as the independence of his office is recognised by an
amendment to the statute of the court, the Principal
Defender works under the
administrative supervision of the Registrar. In the spirit of the Rule change
that created the office,
the Registrar should allow it to work so far as
possible with operational independence.

Done at Freetown this day 8th day of
November 2005


________________________
Justice Geoffrey Robertson


[Seal of the Special Court for Sierra Leone]



[1] In the CDF Case,
Dissenting Opinion of Judge Pierre Boutet on Decision on the Prosecution’s
Application for Leave to File an
Interlocutory Appeal Against the Decision on
the Prosecution’s request for Leave to Amend the Indictment of Samuel
Hinga Norman,
Moinina Fofana and Allieu Kondewa, 5 August 2004 (Decision on 2
August 2004); Dissenting opinion of Hon. Judge Benjamin Mutanga Itoe,
presiding
judge, on the chamber majority decision supported by Hon. Judge Bankole
Thompson’s separate but concurring opinion,
on the motion filed by the
Second Accused, Moinina Fofana, for service and arraignment on the consolidated
indictment and a second
appearance, 13 December 2004 (decision on 6 December
2004); Dissenting opinion of Hon. Judge Benjamin Mutanga Itoe, presiding judge,
on the chamber majority decision supported by Hon. Judge Bankole
Thompson’s separate but concurring opinion, on the motion
filed by the
Third Accused, Allieu Kondewa, for service of consolidated indictment and a
further appearance, 13 December 2004 (Decision
on 8 December 2004); Confidential
Dissenting Opinion of Justice Itoe on Majority decision Regarding Witness
TF2-218, 19 September
2005 (Decision on 15 June 2005). In the RUF Case,
Dissenting opinion of Judge Thompson on decision on application for leave to
appeal
– Application to withdraw counsel, 7 September 2004 (Decision on 3
August 2004); Partially dissenting opinion of Hon. Justice
Benjamin Mutanga Itoe
on the chamber majority decision of the 9th of
December, 2004 on the motion on issues of urgent concern to the accused Morris
Kallon, 18 March 2005 (Decision on 9 December 2004).
In the AFRC Case, Separate
and dissenting opinion of Justice Sebutinde in the decision on the confidential
joint Defence motion
to declare null and void the testimony of Witness TF1-023,
8 August 2005 (Decision on 25 May 2005); Separate and Concurring Opinion
o f
Justice R.B. Lussick on Brima-Kamara Application for Leave to Appeal from
decision on the Re-appointment of Kevin Metzger and
Wilbert Harris as Lead
Counsel, 14 September 2005 (Decision on 5 August
2005).
[2] See
Concise Oxford Dictionary: the verb append means “hang on, annex, add in
writing (from the Latin “appendere”,
and hence appendage), “a
thing attached; addition;
accompaniment”.
[3]
See Attorney General v Leveller Magazine Limited (1979) A.C.
440
[4] See AFRC
transcript, p15
[5]
See Prosecutor v. Brima et al., Case No. SCSL-04-16-AR77, Decision on the
Defence Appeal Motion pursuant to Rule 77(J) on both the Imposition of Interim
Measures
and an Order pursuant to Rule 77(C)(iii), 23 June 2005; Prosecutor
v. Brima et al.
, Case No. SCSL-04-16-AR77, Decision on the joint Defence
Appeal against the Decision on the Report of the Independent Counsel pursuant
to
Rule 77(C)(iii) and 77(D), 17 August
2005.
[6] Email from
Metzger to Defence Office, 18th May
2005.
[7] Email from
Metzger to Defence Office, 14th May
2005
[8] Citing
Prosecutor v Baragwiza, 2nd November 2000,
p14
[9] See
Prosecutor v. Norman, Case No. SCSL-04-14-AR72, Decision on Preliminary
Motion Based on Lack of Jurisdiction (Judicial Independence), 13 March
2004.
[10] See
ICTR, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on
Maître Paul Skolnik’s Application for Reconsideration of the
Chamber’s Decision
to Instruct the Registrar to Assign him as Lead Counsel
for Gratien Kabiligi, 24th March 2005, para.
17.
[11] See ICTR,
Prosecutor v. Nahimana et al, Case No. ICTR-99-52-A, Decision on
Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber
Decision of 19th January 2005,
4th February 2005, page
2.
[12] It was
later (1966) reflected in the text of Article 14(3)(d) of the
ICCPR
[13]
6/7/2005, 20th January 2005, Case Number 63378/00,
paras 65-66
[14] An
expression deriving from the English case (Mackenzie v Mackenzie) when a
litigant was permitted to have the in-court assistance of a lawyer who was not
admitted to practice in the jurisdiction.

[15] ICTR,
Prosecutor v. Ntakirutimana, Case No. ICTR-96-10-PT and ICTR-96-17-PT
Decision on the Motions of the Accused for Replacement of Assigned Counsel, 11
June 1997.
[16] See
ICTR, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on
Maître Paul Skolnik’s Application for Reconsideration of the
Chamber’s Decision
to Instruct the Registrar to Assign him as Lead Counsel
for Gratien Kabiligi, 24 March 2005, para 21. See also ICTY, Prosecutor
v.
Milosevic, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of
the Trial Chamber’s Decision on the Assignment
of Defence Counsel,
1st November
2004.
[17] See
Prosecutor v. Brima, Case No. SCSL-04-16-PT, Decision on
Applicant’s Motion against Denial by the Acting Principal Defender to
Enter a Legal Services
Contract for the Assignment of Counsel, 6 May 2004, paras
40-41.
[18] See
Prosecutor v. Taylor, Case No. SCSL-03-01-AR72, Decision on Immunity from
Jurisdiction, 31 May
2004.
[19] See
ICTR, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on
Maître Paul Skolnik’s Application for Reconsideration of the
Chamber’s Decision
to Instruct the Registrar to Assign him as Lead Counsel
for Gratien Kabiligi, 24 March 2005, para
30.
[20] See
Prosecutor v. Gbao, Case No. SCSL-04-15-AR73, Decision on Appeal Against
Decision on Withdrawal of Counsel, 23 November 2004, para. 44-45. There are
cases at the ICTY where lawyers have represented clients despite lack of
adequate instructions: see Milosevic;
Blagojevic.
[21]
See Julian Disney & ors, Lawyers (Law Book 10, 2nd
ed, 1986),
p609
[22] See Code
of Conduct of the Bar of England and Wales (27th
January 1990 (paragraph 207)) and David Pannick, Advocates Oxford University
Press, 1992.
[23]
See Prosecutor v. Norman, Case No. SCSL-04-14-T, Ruling on request for
Withdrawal of Mr. Tim Owen QC, as Court Appointed Counsel for the First Accused,
1
March 2005.
[24]
Pannick, op cit,
p31
[25] Gabriel
Garcia Marquez, The Future of Colombia (Granta,
1995)
[26] See the
Report of the Office of Internal Oversight Services on the investigation into
possible fee splitting arrangements between
defence counsel and indigent
detainees at the ICTR and ICTY, 1st February 2001,
A/55/759, especially paras 9-15; follow up investigation into possible fee
splitting arrangements between defence
counsel and indigent detainees at the
ICTR and ICTY, 26th February 2002,
A/56/836
[27]
Sylvia de Bertodano, Report on Defence provision for the Special Court for
Sierra Leone, commissioned by No Peace Without Justice
and published on
28th February,
2003.
[28] Second
Annual Report of the President of the Special Court for Sierra Leone,
1st January 2004 to 17th
January 2005,
p19
[29] ICTR,
Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on Ntahobali’s
Extremely Urgent Motion for the Re-instatement of Suspended Investigator, Mr
Thaddée
Kwitonda (TC), 14 December 2001, para.
17.
[30] See ICTR,
Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on the Application by
Arsène Shalom Ntahobali for Review of the Registrar’s Decisions
Pertaining
to the Assignment of an Investigator”(President Pillay), 13
November 2002, para.
4-5.
[31] See ICTR,
Prosecutor v. Nzirorera, ICTR-98-44-T, President’s Decision on
Review of the Decision of the Registrar Withdrawing Mr. Andrew McCartan as Lead
Counsel
of the Accused Joseph Nzirorera (President Pillay), 13 May 2002, p. 3,
sect. (xi); ICTY, Prosecutor v. Hadzihasanovic et al., IT-01-47-PT,
Decision on the Prosecution’s Motion for Review of the Decision of the
Registrar to Assign Mr. Rodney Dixon as
Co-Counsel to the Accused Kubura (TC),
26 March 2002, para.
12-13.
[32] Brima,
para 62
[33] Wade
and Forsythe, Administrative Law, 8th Edition,
Oxford, p316.