SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
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THE APPEALS CHAMBER

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

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]

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[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.