REPORT ON DEFENCE PROVISION
FOR THE SPECIAL COURT FOR SIERRA LEONE
This report is prepared at the request of the Registry of the Special Court for Sierra Leone (SCSL) and No Peace Without Justice (NPWJ). The aim is to assist those involved in making arrangements for the defence of accused before the SCSL, and to help ensure that the problems suffered by other international and internationalized courts can be avoided.
The report is based on consultations with many participants in the SCSL and in the legal system of Sierra Leone, conducted during a visit to Freetown from 14-21 February 2003. It also relies on the input of lawyers and others who have worked in other international justice mechanisms in recent years.
One of the principal guarantees of the right to a fair trial is the provision of adequate facilities for an accused person’s defence. Trials can only achieve legitimacy if there is equality of arms between defence and prosecution. The prosecution of crimes under international law requires not only an effective prosecution office, but also an effective defence. If this is not provided, trials will not be regarded as having been fair, and their verdicts will not be regarded as legitimate.
The forthcoming trials before the SCSL will be subjected to a high degree of national and international scrutiny. The court cannot afford to give the impression that the process is overloaded in favour of the prosecution.
Defence is frequently overlooked in the early stages of planning for international trials. The International Criminal Tribunal for the Former Yugoslavia (ICTY) in its early stages made no proper provision for defence, and in the preliminary months of its first case was employing only one defence lawyer, who was prepared on an ad hoc basis to waive his usual hefty fees for a payment capped at US $200 per day. The Special Panels for Serious Crimes in East Timor were planned without any regard to the need for defence, and began their operation with only one junior overseas lawyer acting as a public defender, along with newly qualified national public defenders. The spectacle of nervous newly qualified lawyers facing up to experienced international prosecutors before the Special Panels in East Timor was not an edifying one. Although attempts have been made to improve the situation, there has never been any real recovery from this position.
On the other hand, other institutions have given rise to grave concerns at the unmanageable costs of providing defence representation. These have surfaced in relation to both ad hoc tribunals, in particular the International Criminal Tribunal for Rwanda (ICTR), where overbilling, dishonest practices and lack of proper caps and controls has resulted in a grossly inflated defence budget.
The Registry of the SCSL expresses concern that both these extremes should be avoided, and that a system should be instituted which succeeds in providing a high standard of representation for defendants at a proportionate and manageable cost. Discussions held during the week of 14-21 February with the Registrar and his staff showed that there is a great deal of willingness to consider a wide range of options in achieving this aim. Consideration of these options resulted in a narrowing of the issues, and a high degree of consensus was achieved on many key matters.
II. Requirements of a Defence System
The Statute of the SCSL sets out the rights of the accused 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.
…defend himself or herself in person or through legal assistance of 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.
…examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.
In order to accommodate all defendants’ rights, and to provide a high
standard of representation to defendants at a reasonable cost, a system
must be set up which is capable of:
a. Providing all accused with information on how to instruct a defence
lawyer;
b. Determining the requirements for qualification to appear as counsel
before the court;
c. Selecting, or assisting defendants in the selection of, national
and international counsel who meet the requirements for qualification to
appear as counsel before the court;
d. Determining which accused should be entitled to legal assistance
free of charge;
e. Determining what such legal assistance should consist of;
f. Providing an appropriate system of remuneration for defence counsel
and other members of defence teams;
g. Assessing and paying claims for remuneration by defence teams.
a. Providing accused with information on how to instruct a defence lawyer
It is probable that the majority of accused persons have little or no experience of courts or court procedure. Any experience they may have may be of court systems which do not operate in accordance with international human rights standards.
Information should be made readily available to them as to how their rights are protected by this court system. This should include information as to their rights to representation, and how such representation is to be obtained.
b. Determining requirements for qualification of counsel
The principle of equality of arms between the prosecution and the defence is fundamental. One of the principal means by which such equality can be secured is by ensuring that defence counsel are of a standard comparable to counsel for the prosecution. If accused persons are being represented by lawyers with significantly lower levels of experience and expertise than prosecuting counsel, this standard is not being achieved.
Clearly, making such assessments can never be an exact science, but this does not mean that it is impossible to provide certain basic guarantees of equality. Perhaps the simplest preliminary step is to provide that the levels of experience of a lead defence counsel are similar to those of a lead prosecution counsel. At the SCSL, prosecution teams are likely to be led by prosecutors at P5 level, which generally means that they have a minimum of 10 years’ experience. It may therefore be appropriate to have a basic “threshold” rule that lead defence counsel have a minimum of 10 years of experience.
A comparable rule was introduced into the Rules of Procedure and Evidence of the ICTR, to counter the difficulty that inexperienced counsel were taking cases before the court. Under these Rules, any counsel who appears on the list of counsel kept by the Registrar must have at least 10 years’ relevant experience.
There have been some discussions about having a lower level of experience required for defence counsel, based on the comments of some defence organizations, which have complained that the threshold at the ICTR prevents some junior counsel from working on cases. However, it is suggested that it is entirely inappropriate for a lawyer of less than 10 years’ experience to be leading the defence in cases of this gravity. In most common law systems it would be considered highly unusual for a lawyer other than a very senior and experienced practitioner to lead a simple murder trial. Trials before the SCSL will be of far graver charges. 10 years’ call should be regarded as a minimum level rather than an optimum one, and it is to be hoped that most lead counsel would be substantially more senior. If junior defence lawyers want to play a role, they can apply for positions as co-counsel, duty counsel or legal assistants.
It should be added that the use of junior lawyers to lead cases is not only entirely inappropriate to the level of work; it is also unlikely to provide overall cost savings. As one senior counsel comments:
One thing that the Special Court for Sierra Leone has to get right is expedition. That requires senior and highly experienced competent counsel on both sides. […] It is not cheap defence that is required, it is a system that encourages skilled and swift professionalism.
It is important that any requirement of experience should be for experience that is truly relevant to the work of the court; that is, experience of conducting high profile criminal trials in domestic and/or international courts. It is not sufficient that a person has simply been qualified or practising as a lawyer for the relevant period. In other international and internationalized courts there have been severe difficulties caused by the assignment of lawyers who have either never practiced, or have practiced in fields such as commercial or family law which have no relevance to the work before the court.
c. Selecting, or assisting defendants in the selection of, counsel
The selection of the right lawyers to appear as counsel in cases before the court is clearly a crucial requirement in ensuring that trials are properly defended. The manner in which this is done will depend on the system of defence representation used. This is discussed in more detail below.
d. Determining which accused should be entitled to legal assistance free of charge
Under the Statute of the SCSL the accused should have legal assistance free of charge if he or she lacks the means to pay for it. This requires an assessment of the means of an accused who requests legal assistance to be made.
In the first instance, such assessments rely on representations made by the accused. It is a matter for the court as to what further enquiries should be made pursuant to such representations.
It should however be noted that there are in most circumstances few accused persons who are assessed as being able to pay for their own defence. All defendants at the ICTR, and all but four at the ICTY, have claimed indigence. This is despite the fact that many trials before these courts have been of persons who have until recently held high positions in their respective states.
It should also be noted that both the ICTR and the ICTY have found difficulties in investigating claims of indigence. In one recent case at the ICTY, an accused person who had successfully claimed indigence was found to have purchased real estate while in detention.
How matters of documentation and investigation are to be resolved falls outside the scope of this report. For budgeting purposes, it would be wise to assume that the vast majority of defendants will require the cost of their representation to be covered by the court.
e. Determining what such legal assistance should consist of
The Statute guarantees a right to legal assistance, but it is silent as to what this assistance should consist of. Again, the guiding principle must be equality of arms. This does not mean that the defendant must be afforded exactly the same resources as those of the state (or in this case the prosecution). The role of the prosecution in bringing and proving a case requires an operation of an entirely different nature than that of mounting a defence.
At one end of the scale, the ICTs provide for teams for each defendant consisting of one counsel, one co-counsel, and up to three legal assistants and investigators. A comparative table of costs of defence teams at the ICTR drawn up in 2000 revealed that even the comparatively short trials of one or two defendants carried an average cost of USD $500,000 per defendant. More recent, longer trials have far exceeded this level, and the cost is now assessed at nearly USD $1,000,000 per defendant. The delays endemic to the system at the ICTR have resulted in defence cases costing hundreds of thousands of dollars before they have even reached the trial stage.
It should be noted that the costs of the defence in these cases are still very significantly lower than the costs of prosecution. Defence cannot be seen in isolation: the ICTR is an unfortunate example of an entire system which is disastrously out of control. One senior lawyer who has represented defendants at both the ICTs writes:
The chronic problem of delay at both the ICTY and the ICTR causes vast avoidable expense, and at the ICTR has simply descended into a farce which drives a coach and horses through any notion of fair and expedient trials. It is a malorchestrated and continuing abuse of process. The money used to support the ICTR would be much better transformed into food for starving African children.
At the other end of the scale, recent crimes against humanity trials in East Timor have seen up to three defendants sharing a single Timorese public defender who has been qualified for less than two years. The cost of this is unsurprisingly negligible: public defenders are paid less than USD $250 per month. Similarly, in recent UN prosecuted trials in Kosovo, only local counsel with necessarily limited experience were employed for the defence.
There appears to be general agreement in the SCSL Registry that each defendant should have a lead counsel at a very senior level. Whether these lawyers should be employed or chosen from a list is discussed below. It is also generally agreed that there is no way in which the system can sustain the kind of 5 person teams used at the ICTR.
It may be that the question of whether a co-counsel (employed or otherwise) is needed for a case is a matter that can best be decided on a case by case basis, depending on the size, length and complexity. If co-counsel are used, it may be that it is felt inappropriate to specify a threshold level of experience. It should noted that many Sierra Leonean defence lawyers are interested in working on cases before the court. These are by and large junior lawyers of 5 years’ experience or less. The use of these lawyers as co-counsel may be desirable for a number of reasons which are discussed in more detail in Annex 1.
Applications for co-counsel could be decided by the defence unit, if necessary with the assistance of a recommendation by the court. This would provide substantial flexibility in deciding how each defence team was to be staffed. The granting of co-counsel would not be a given, but would have to be justified in the individual case. It may be that co-counsel could be granted for part of a trial, e.g. to research and argue a particular legal issue, or to assist in dealing with defence witnesses.
There is also likely to be a need for interpretation, investigation and legal assistance. It will clearly be cheaper to have a pool of interpreters for the use of all defence lawyers. It has been suggested by the Bar Human Rights Committee of England and Wales that there should also be a pool of researchers and investigators working in a defence support unit for use by all counsel. Clearly this would have substantial cost benefits. Thought would have to be given as to how resources were to be shared fairly among defence teams, and how conflicts of interest were to be avoided. However, these difficulties are not insurmountable.
It may also have to be considered that in more complex cases there should be a dedicated legal researcher or investigator appointed to work with a particular team. Applications could be decided in a similar way to applications for co-counsel. Again, this allows a desirable degree of flexibility.
f. Providing a system of remuneration for defence
The system provided, and the mechanism for running it, will depend crucially on the choices which are made regarding the employment of public defenders or the use of a list system of choosing defence counsel. This is discussed in detail below.
g. Assessing and paying claims for remuneration by defence teams
Whichever system of remuneration is used, there will need to be a mechanism within the defence unit for assessing and paying claims for remuneration. Clearly the ultimate control over payments will remain with the Registrar, but he will be greatly assisted if there is a smoothly operating system within the defence unit.
III. Public Defenders or List System
Much of the current debate centers around whether a public defender or a list system should be employed. Both systems are attended by difficulties, and this report argues that the best solution is to use a combination of the two.
There is a suggestion in circulation that the defence unit should be staffed by well qualified (P4 and P5 level) public defenders. These salaried defenders would be able to undertake all cases before the court. It is commonly thought that such a system limits the costs of the defence, and assists in the advance calculation of costs.
The “model” for such a system which is frequently cited is that used in trials before the Special Panels for Serious Crimes in East Timor. A large number of crippling problems were suffered by the defence unit in operation in East Timor. Many of these were due to underfunding, and it is not necessary to go into these difficulties in detail. It is possible however to outline briefly the difficulties of attempting to operate a public defender system in a situation such as this.
There is no requirement in the Statute of the SCSL that an indigent accused should be provided by the court with a free, or indeed any, choice of legal representation. However, concerns have been expressed that a public defender system limits the defendant’s choice of counsel, and that this reduces the confidence that a defendant is likely to have in his or her lawyer.
While this is undoubtedly true, it is perhaps worth noting that in many legal systems defendants who rely on the state for the funding of their cases are not permitted to choose their counsel, but must make do with assigned counsel that the state provides.
However, if a defendant lacks confidence in his or her assigned counsel, it may be counterproductive to the efficient administration of justice. In particular, a defendant who rejects assigned counsel will be self-represented at trial. This is not only highly undesirable in terms of equality of arms; it is also likely to significantly prolong the case, and therefore to increase its costs. On the other hand, a defendant who has had some degree of choice of counsel is far more likely to have confidence in him or her.
Of greater concern is the question of conflict of interest. In a limited field such as the SCSL has been set up to deal with, there is a potential risk that each defendant’s case will be in conflict in some degree with every other defendant’s. It is therefore more than a possibility that each of these salaried defenders would be able to act in no more than one case without coming into conflict with other cases.
The mandate of the SCSL is to try those “who bear the greatest responsibility” for the conflict in Sierra Leone. This cannot be compared with a system in a state or country prosecution service, which is trying a wide range of different and unrelated cases. All defendants before this court will be tried for a similar range of offences relating to the same factual situation.
Therefore the defence unit cannot be compared to a solicitor’s office, which represents a number of different clients in different trials. All clients are defendants in what is broadly the same case – i.e. all are charged with being among those “who bear the greatest responsibility” for crimes committed during the conflict.
The situation is more accurately comparable with that in which a number of people are being tried in relation to a major fraud, or a large drug smuggling operation. All defendants may be charged with playing different roles within the operation, and having played a part in different events at a different time. The larger case may be separated into a number of different, smaller trials in order to make the prosecutions more manageable. However, the overall case remains an interconnected whole.
Lest it should be thought that this problem is technical or hypothetical, the following true examples are taken from recent trials before internationalized courts:
· Defendant A pleads not guilty to a charge. His defence is that defendant B, who is charged in relation to quite different matters, was the true perpetrator of the crime.
· Defendant A pleads not guilty to a charge, on the basis that he did not commit the crime, but he does not know who did. In the course of his investigations, counsel for defendant A finds evidence that the crime with which his client is charged was in fact committed by defendant B.
· Having initially entered a plea of not guilty, at a late stage in the trial defendant A pleads guilty to a number of charges. He is called by the prosecution to give evidence against co-defendants in his own trial, and also against defendants in other quite separate trials.
This last situation has frequently arisen before internationalized courts. It is impossible to predict when it will occur, but it is safe to say that in every case where a defendant pleads guilty they become a potential witness for the prosecution in their own and other cases. This is true even if the cases have no apparent relation to each other, due to the fact that in trials of this nature the prosecution has to prove “context elements” of crimes (e.g. a “widespread or systematic attack” in the case of crimes against humanity).
Further examples could be cited at length. It should be stressed that these situations are not foreseeable in advance, and can arise at any point during the trial process. This may cause trials to have to be aborted at a late stage for counsel to be reassigned. In many cases it may be impossible to reassign a case to any among the small pool of defenders in the public defenders’ office.
When the pool of defendants and the subject matter of offences is very limited, as it will be at the SCSL, the likelihood is that the only way in which conflict can be avoided is to have a different counsel for each defendant. If the system provides only for staff public defenders, the cost of having at least one full time staff defender for each accused is potentially enormous.
In addition, if trials are to last for any length of time, severe problems can be occasioned when a staff defender comes to the end of a contract and leaves the mission, leaving unrepresented defendants and part heard trials. Again, this problem occurred frequently in East Timor, where it was commonplace for a defendant to have three different defence counsel working on the trial, with no hand-over process and no communication between successive representatives. The lawyer making the closing speech often had very little idea of what evidence the judges had heard, or on what basis it had been challenged by his or her predecessors.
This is quite different from the situation in a prosecution office, where larger teams and the presence of overall strategists in the form of the Prosecutor and his Deputy can ensure that if a staff member leaves the mission a proper handover process can take place.
Those who advocate the public defender system do so principally on the basis of cost efficiency. However, if public defenders cannot take more than one case due to problems of conflict of interest, the cost situation is likely to be worse than in a system in which a list system is used. Defence counsels’ salaries will have to be paid regardless of whether or not their case is in trial, and regardless of whether or not the current stage of their case occupies them on a full time basis.
There are also likely to be adverse cost implications, in the form of delays and prolongation of trials, if there are changes of counsel due to lawyers leaving the mission at the end of their contracts.
For these reasons, it is suggested that the employment of permanent defence lawyers may be a false economy, and may limit defence rights without providing even the cost benefits which the proponents of this system hope for.
The basic alternative to a public defender system is a list system, under which a defendant chooses a lawyer from a list of suitably qualified counsel. A defendant may also ask that his or her choice of lawyer be added to the list, which can be permitted subject to the lawyer fulfilling the set minimum requirements.
In order to be prepared for requests made by accused as soon as possible after arrest, a list of properly qualified counsel (the criteria for which has been pre-determined) should be compiled and retained by the defence unit. This list should also include the CVs of such counsel, and should be made available to any accused who requests legal assistance.
· Remuneration under the List System
There is a variety of ways in which remuneration can be organized for defence counsel:
The ICTs use a system of hourly rates for the remuneration of defence counsel. This broadly works in the following manner: each defendant is entitled to one lead defence counsel, one co-counsel, and up to three assistants and investigators. Lead defence counsel is remunerated at a rate of US $110 per hour, co-counsel at a rate of US $80 per hour; and assistants and investigators at a rate of US $25 per hour. There are caps on the number of hours allowed in a month at 175 hours for counsel and 100 hours for assistants and investigators. All members of defence teams are required to fill in forms accounting for hours spent and describing the manner in which this time has been used. These forms are then processed by defence unit staff who will make decisions on what payments will be allowed.
There have been concerns in recent years at the wide scale abuses which have been uncovered in this system of remuneration. These have included dramatic levels of overbilling by legal teams, and the apparent inability of defence unit staff to challenge overblown claims.
The real difficulty with a system based solely on hourly rates is that there is no limit or control over spending. Although claim forms are assessed by defence unit staff, the only real decisions made are as to whether the activity described falls into the categories of billable work set by the Registry. Since most counsel soon learn which activities are allowed and which are disallowed, this acts as no real cap on spending. Inefficiency is consequently rewarded: if lawyer A takes six hours to do what lawyer B does in 3 hours, lawyer A is paid twice as much for the task. Dishonesty regularly goes undetected. The phenomenon of “excessive lawyering”, particularly by nationals of countries where normal legal fees of counsel are substantially lower than the ones paid by the ICTs, has been regularly observed. As a result, huge claims mount and spending spirals out of control.
It should be noted that the reports of the UN Office of Internal Oversight (OIOS) into fee-splitting and related activities at the ICTs found that the problem lay not just with defence lawyers, but with tribunal staff. There was substantial evidence that there had been not only incompetence but actual dishonesty and corruption among tribunal staff in the processing of claims made by defence lawyers:
…a staff member of the International Tribunal for Rwanda, whose responsibilities included the review of the financial statements submitted by defence team members had repeatedly requested and received kickbacks. Cash and cheques were found by OIOS investigators to have been paid under duress by several defence team members. The evidence demonstrates that failure to make such payments, often more than $1,000, resulted in significant delays in payment authorization by the staff member.
While it would perhaps be wrong to make too much of a single case of corruption, it should be noted that the same report found that the Chief of the Lawyers and Detention Facilities Management Section at the ICTR had failed to investigate evidence of inflated billings, and had further given “inaccurate and untrue information about his actions in the matter.” Therefore, while it was clear that there had been some dishonesty on the part of a small minority of defence lawyers, the problem was far deeper-rooted within the system.
In addition, the administrative burden of assessing and paying such claims is very substantial. Each member of a defence team submits lengthy and detailed claim forms which must be checked and assessed by defence unit staff. Payments must then be processed. This results in substantial delays in payments, and means defence lawyers have to make significant financial outlay before their claims are paid.
A flat rate daily payment for work done can be a simpler mechanism. This can work particularly well when cases are in trial.
The advantage of this mechanism is that it is cheap and easy to administer, and can result in comparatively speedy payments. Days in trial can be simply billed and paid, without the need for extended explanations and assessments. Any imbalances resulting from cancelled, extra short or extra long days work themselves out in the course of time.
The disadvantages of this mechanism would be apparent if cases were not to proceed expeditiously once they had commenced. Clearly, if overseas counsel are employed, it would be very inefficient to have a system in which more than one case is running at the same time. If cases were to run, for example, alternate weeks or alternate fortnights, a daily rate for court days would no longer be fair payment, as counsel would be required to wait in Freetown for their next court day. In order to operate fairly, counsel should be paid a daily rate for each working day on which they are required to be in Freetown, whether or not their case goes ahead.
This system is also difficult to administer in the pre-trial stages of a case; when time is not easily measurable in court days, the system suffers from similar disadvantages to those experienced for hourly rates, i.e. rewards for inefficiency and costs spiralling out of control.
A third option is to introduce a system of payment of flat rate brief fees for work taken on. This involves making an assessment of the value of the brief, based on its size and gravity. This could lead to a basic assessment of the hours of preparation required, and a brief fee could be calculated on this basis. One could add to this payment for pretrial work which would be needed for every trial, e.g. preliminary conference with defendant, attendance at a preliminary hearing, further conference with defendant.
For example, if a unit of payment, roughly designed to reflect an hour of work, is X, calculations on a basic case could be as follows:
Preparation (based on page count and number/gravity of charges)
100X
Preliminary Conference (and ensuing work) 30X
Preliminary hearing (including preparation, conference, and complying
with orders of court for preliminary motions) 50X
Further conference (including final preparation for trial)
40X
Trial (e.g. 6 weeks at 40 hours per week) 240X
Closing arguments (e.g. 5 days preparation and 2 days in court)
56X
Verdict (including conferences and day in court)
20X
Brief fee: 460X
Clearly many modifications and additions could be made to this rough outline, and it could be changed to apply to co-counsel and any other members of a legal team. Modifications could be made in the case of a guilty plea. A different outline could be drawn up to deal with cases on appeal.
This payment should cover all drafting of preliminary motions, interviewing of witnesses and other matters, regardless of hours actually spent. Any claims made outside this would have to be justified. It might be helpful to require the judges to assist in hearing applications for payment for extra work (e.g. researching a particularly complex and unusual point of law, interviewing a particularly large number of witnesses, instructing an expert in a matter which required expert evidence) as they would be best placed to assess whether the extra work was really necessary to the case.
Some counsel consulted in the preparation of this report have made the further suggestion that a defence unit should take into account initial estimates from counsel, who should be able to gauge the amount of work necessary from the brief. Payment could then be fairly tailored to the demands of a particular case.
The advantage of this system would be that one would be able to assess immediately the basic cost of the case. Payments could be made as a matter of course on the completion of a particular stage of the case.
Disadvantages would occur if it resulted in the system being clogged up with multiple claims for extra payments. This could be averted by adopting a realistic approach from the start towards payment: it is cheaper and more efficient not to under-assess a case at the outset. It could also be made clear (and adhered to) that extra payments were to be very much the exception rather than the rule. If it appeared over time that a particular type of activity was the subject of constant claims, it might be appropriate to review the option of including that activity in a raised brief fee.
There would also be difficulties if a defendant decided to change his legal representation, as this would result in a recalculation of fees for a new defence team, and an added cost for the court. However, it should be noted that a change of defence team is likely to incur a substantial additional cost whatever the method of payment. Most international tribunals (and national courts) strictly limit the ability of legally aided defendants to change their defence teams. At the very least, it should be made clear to defendants from the outset that once they have chosen trial counsel they will not be permitted to change except in exceptional circumstances and with the leave of the court. It should also be made clear to trial counsel that they are committed to the case they have undertaken unless and until they are permitted to withdraw by an order of the court.
iv. Combined brief fee/daily rate
It may be difficult at the outset to assess the length of any trial: representations made by lawyers at the start of cases are often inaccurate. Much depends on the particular judges in charge of the trial, the number of defendants joined in an indictment, as well as unforeseeable elements such as the availability of witnesses. It may be felt that this could best be accommodated by having a brief fee for the pre-trial stage, and a daily rate from the start of trial. The brief fee in the example given above could then be calculated as follows:
Preparation (based on page count and number/gravity of charges)
100X
Preliminary Conference (and ensuing work) 30X
Preliminary hearing (including preparation, conference, and complying
with orders of court for preliminary motions) 50X
Further conference (including final preparation for trial)
40X
Brief fee: 220X
Additional daily refresher payments could be made on a weekly of monthly basis in respect of days in court.
It should be noted that under this system the brief fee should be assumed to cover further preparation during the course of the trial. If an unusual amount of extra preparation is required, application should be made to the court for a recommendation that there be reimbursement of an extra expense.
· Control of Costs of Counsel employed under the List System
Based on the experience of the ICTs, concerns have been expressed by those involved in setting up the system for the SCSL about matters relating to the conduct of defence counsel. These include, but are not limited to: fee splitting; refusing to attend hearings due to other commitments; overbilling; and creating unnecessary expenditure for travel.
The practice which is widely believed to take place at both ICTs whereby counsel split fees with defendants – i.e. they effectively pay defendants to retain them – has been the cause of substantial concern, and has been the subject of extensive investigation by the Office of Internal Oversight.
When counsel are employed and paid at levels far higher than they would be at home, there is a risk that they may be tempted to pay defendants part of their fee in order to keep a case. Defendants may also be tempted to use counsel who they know to be incompetent if they are receiving payments for themselves and their family. There is evidence that many defendants at the ICTs retain a lawyer from their home jurisdiction on this basis, who then acts as co-counsel with an international lawyer (who may know nothing about the arrangement). There is similarly evidence that defendants split fees with other members of the defence team such as investigators and legal assistants.
There can never be a complete guarantee against such a practice. Evidence of such payments is by nature extremely difficult to obtain. But certain safeguards can be put in place, e.g.: using salaried support staff from the defence unit, who are not dependent on a particular defendant for their position; limiting the direct contact between defendants and members of the defence team other than counsel; and providing for the payment of brief fees, rather than hourly rates, which controls the maximum paid to any one counsel.
It should also be noted that a strong and competent director of the defence unit would be able to decide whether counsel should be included on the list, and genuine suspicions concerning their honesty should militate against inclusion.
ii. Failure to attend hearings
It should be made clear to any counsel who wishes his or her name to be added to the list of those willing to act as defence counsel that upon undertaking a case, he or she is expected to comply with rulings of the court concerning attendance at hearings. Failure to comply is likely to result in removal from the case, being reported to his or her bar organization, and/or financial penalties.
It should be noted that it is much easier for counsel to comply with court rulings if dates are set well in advance, and adhered to. For this, as well as many other practical reasons, adjournment of hearings and trials should occur only in exceptional circumstances. When counsel are being flown in from abroad to attend hearings, it is essential that they should go ahead as planned.
It should further be noted that it is much easier to ensure that counsel are present for all hearings if trials are organized in such a way that they proceed continuously (possibly with a break between prosecution and defence cases if further preparation is required). It is also much more convenient for counsel, who are required to be away from their own practices for extended periods of time, if a trial continues straight through rather than stopping and starting.
It will be much easier to tempt highly qualified international counsel to come and act in these cases, at what may be far lower rates of pay than they would be receiving at home, if they can be assured that trials will last for a limited time and will not be held up by constant adjournments. The experiences of counsel who get stuck in the endless stopping and starting of cases at the ICTR, which can keep them from their practices for up to three years, have severely discouraged many senior counsel from taking this kind of case.
This has been dealt with above in Section III b 1 (Hourly rates: see page 12). The argument of this report is that a system of brief fees, properly administered, should eliminate the problems of overbilling suffered at the ICTs.
Accommodation expenses can be covered by a DSA in the same way that they are at the ICTs; presumably this should be at the same rate as the living allowance for staff members (currently $115 per day in Sierra Leone): this provides both a clear limit and an easy calculation.
Travel expenses to and from court can be minimized if the proposals of the preceding paragraphs are adopted, namely appearances go ahead when scheduled, and cases are in court continuously after the start of trial.
Travel expenses for the purposes of making investigations and interviewing witnesses will have to be assessed on a case by case basis. It should be noted that the hours spent undertaking this task should be in the first instance covered by the brief fee. It should also be noted that the estimate of the Victims and Witnesses Unit of the SCSL is currently that 85-90 per cent of witnesses will be resident in Sierra Leone.
Lack of control over the investigation process at the ICTR has led to
considerable unnecessary expenditure. One senior counsel at the ICTR writes:
One great expenditure for the defence at the ICTR is in relation to
the numbers of witnesses who are interviewed. I have heard of hundreds,
and in one case over a thousand, potential witnesses being interviewed
at the expense of the Tribunal. I would have thought that greater
control could be exercised without hampering the fairness of the trial
process.
In the domestic systems of most countries, it would be inconceivable
that the defence would be given free rein to travel around the world interviewing
large numbers of unidentified witnesses at the public expense. There is
no reason why the international courts should sanction such a practice.
Again, the defence unit should require all such travel over a certain minimum
amount to be justified. If there were to be applications for expensive
investigations, these could be decided (if necessary in an ex parte hearing
in chambers) by a judge.
The above quoted counsel further suggests:
If the defence could build up an information base accessible to all
counsel that would save some travel expenditure. To take one example,
at the ICTR counsel in various trials wish to use the archive material
of a journalist. It is held at a University in the UK. It amounts
to about 150 pages and the cost of travel and copying is very small for
a UK based lawyer, yet the Tribunal has funded travel costing thousands
of pounds for counsel to come from other parts of the world to view the
material.
If this type of work could be done by the defence unit and made available
to all lawyers, significant savings could be made.
It has been pointed out by several senior counsel at the ICTR that many
of the cost problems stem from a lack of control of the case by the judges
from the outset. One writes:
A system similar to that operating in the UK of Plea and Direction
Hearings (PDHs) would provide, from a very early stage, a clearer framework
and understanding of the nature of the case. It would mean
that the nature of the trial and the type of resources required would be
appreciated at an early stage.
If the present system of written motions was curtailed and PDHs were
used as the forum for legal argument it would also have an enormous impact
on the progress of the case. A lawyer contracted to work on a particular
case should be expected to attend such preliminary hearings, or to send
someone else to argue the point. It is within the capacity of the
Registry to impose terms in the 'contract' which make it possible to ensure
the attendance of all parties at designated times.
[…]
If a PDH type system led to the provision of the material to be relied
upon by the prosecutor to prove the case at an early stage, then the case
could be properly prepared in advance of the commencement of the trial.
Clearly matters can arise unpredictably after the trial has started, but
as a general rule most of the work could then be undertaken in advance.
It is clear that the costs of the defence are very much dependent on
the costs of the trial as a whole. This is something which can only be
dealt with by a complete review of the system, in particular the system
with regard to pre-trial matters: a thorough and efficient pre-trial process
leads to swift and efficient trials. This limits the cost of all organs
of the court, including the defence.
c. Combined Public Defender and List System
The suggestion which has most appeal to the Registry and others spoken to in connection with the preparation of this report combines elements of a list system and a public defender system to minimize the disadvantages of both. Under this proposal, each defendant would have a free choice of senior counsel from a list. Support for counsel would be provided by a permanently staffed defence unit. This would reduce overall costs significantly, while providing proper support for counsel working on cases before the SCSL.
There is broad agreement that, while counsel must work exclusively for a particular defendant, the same is not true for legal assistants, researchers and investigators. These support staff would not be representing defendants but would be providing assistance to counsel on matters of legal and factual research. With careful management, the possibility of conflict could be minimized.
The great advantage of this system is that it is capable of expanding or contracting according to the immediate needs of defendants before the court. At present, the SCSL has only one Trial Chamber. The following possible scenario illustrates the cost benefits of a mixed system.
Trial 1 lasts 5 months and has 8 defendants: under either system, 8 counsel are employed to represent these defendants. This is followed by Trial 2, which lasts 3 months and has 2 defendants. Under the public defender system, the 8 counsel are still employed under their staff contracts, but only 2 are in court. Under the list system, only 2 counsel are employed.
In the first scenario, the court is paying for 8 counsel over an 8 month period: this is a total of 64 monthly payments for counsel. In the second scenario, the court is paying for 8 counsel for 5 months, and 2 counsel for 3 months. In the same 8 month period, there are only 46 monthly payments for counsel.
This simple example illustrates the need for flexibility in the system. In a limited system such as this, there will not be a constant need for the same number of counsel. There will be times when a large number of counsel are required, and other times when only a very few are needed. The defence unit will operate far more cost-efficiently if it is able to expand and contract at very short notice to accommodate a number of different situations.
At all times, there would be a skeleton defence unit in operation consisting of permanent staff employed to run the unit and provide representation as duty counsel at short notice. This would mean that the unit was able to act quickly and efficiently to deal with any situation.
This flexibility, if properly administered, should provide substantial cost benefits while still allowing defendants to have their cases conducted by their choice of counsel.
While there is still room for negotiation as to how exactly this division will be made, the following is a proposal for how the projected defence unit could be staffed and operated.
The Defence Unit should be as small as possible consistent with carrying out an efficient operation. It should be borne in mind that there is currently only one trial chamber of the SCSL. Therefore, unless there are to be cases running alongside each other there can only be one case in trial at any one time. It is likely to be some months before any cases are in appeal (although there may be interlocutory appeals in the interim).
Staffing of the unit, at least in the initial stages, should be undertaken bearing this in mind. It is likely that the requirements for legal research, interpretation and investigation will be limited at the outset. However, there is a suggestion that, under the guidance of the director of the defence unit, research and investigation could take place into general legal and factual matters, the results of which would be of use and could be made available to all defence counsel.
In order to ensure that representation can be secured for all defendants at short notice in respect of arrest, early appearances and in relation to matters such as bail, it is proposed that there should be three junior duty lawyers. These lawyers would be able provide representation to defendants at short notice, and to deal with the initial conduct of the case, but would not deal with matters of substance relating to any particular trial. Under the management of the director, they would also be able to assist with the other work of the defence unit with regard to general research and investigations.
Clearly it is very difficult to make any concrete proposals for staffing requirements before there is any indication from the prosecution as to how many indictments and cases there are likely to be, over what timescale. The overall number of defendants, and the number of multi-defendant cases, will affect the requirements of the unit. For the present, it is desirable to begin by staffing the unit with the minimum requirements, with flexibility as to whether expansion is required in the future.
Based on discussions with the Registry, it is proposed that the following staff structure is appropriate from the outset:
· Director/Public Defender (D2)
· Deputy Director/Public Defence Adviser (P4)
· (3) Duty lawyers (P2)
· (3) Investigators (P2) N.B. These posts may not be required
to be staffed until indictments are issued and lead counsel are employed
· (3) Interpreters
· (2) Legal researchers (Interns)
· Financial Administrator
· Administrative Assistant
It would be possible for the defence unit to deal with matters such as training. It would be appropriate for it to assist in defence aspects of outreach and public education, which is currently undertaken by the prosecution, the Registry and NGOs. It could also deal with residual matters which have been raised, for example security issues for defence lawyers.
This unit will be the principal point of contact between counsel and the Registry. The huge majority of matters relating to counsel should be able to be resolved at this level. It will therefore need to be run by a person employed at a high level.
The defence unit would be under the control of a Director. Extensive discussions in the Registry have taken place over this, and a post is to be advertised at D2 level. This would provide for the employment of a person of real quality and experience to head the defence unit, who would carry sufficient weight to ensure that defence interests were properly represented within the court system.
The success of the plan for the defence unit will substantially depend on the Director. For this reason, although there is some feeling of urgency, careful consideration should be given to a wide range of candidates before any appointment is made. The SCSL is still at an early stage (at the date of writing this report no defendant has yet been indicted, arrested or even identified as a suspect). In any event, it is of the utmost importance to ensure that the right person is chosen for this role. While any problems arising from delay in filling this post can be remedied, the wrong choice of applicant cannot. If any situation arises in the meantime, the Registry is well equipped to deal with it on an interim basis.
The Director should ideally be a person who has extensive experience of high level criminal trials (either as a prosecutor or as defence counsel), as well as experience of heading and running an organization – either a legal aid organisation, a lawyers’ or solicitors’ firm or a prosecution office. Although experience of international criminal law may be useful, this should not be over-estimated. There is still a very small pool of lawyers who have worked in this field, and choice should not be restricted by limiting selection to these candidates. It should not be assumed that those who are already in the system are those who are best qualified to be there.
This person should be qualified to appear in court in serious cases. However, it is managerial qualities which will really be required: it is not anticipated that he or she would be able to take part in the substantive trials handled by the office. Not only would this detract from other duties, but, more importantly, there would be a serious risk of conflict of interest. The difficulties of conflict with regard to counsel have been discussed extensively above. They apply a fortiori to the director of the unit. If this person were to act for defendant A, there would be severe difficulties if he or she were also to have a principal role in providing and organizing a defence team for defendant B.
The person chosen will be responsible for the set up and organization of the unit. He or she will compile and maintain a list of qualified counsel; ensure that counsel on the list comply with a set of mandatory minimum conditions; ensure that information is disseminated to defendants; receive and answer the concerns of all defendants with regard to their defence teams and the practical conduct of their trials; assess claims for legal assistance made by defendants; institute systems for payment of counsel; assess appropriate levels for brief fees; control payments; and advise staff on all relevant matters.
The Director could be used as a resource for lead counsel in terms of advice concerning international and national law, the applicable rules, codes and directives of the court, and general matters of factual and legal assistance to the conduct of trials.
The director will also have an important role in liasing and co-ordinating activities with the other organs of the court. Matters will run far more smoothly if a good relationship can exist between prosecution, defence and chambers, as well as with the Registry. Trials can be greatly prolonged by lack of understanding and co-operation between prosecution and defence in particular. One of the principal advantages of this system is that it provides a channel of communication between defence and prosecution. The director should be able to represent and stand up for defence interests, while ensuring that a good working relationship is maintained with the prosecution.
For all these reasons, the choice of the correct person for this post is crucial to the success of the system.
After extensive consultations, the recommendation of this report is that a defence unit is established under the control of a Director. It should operate a combined public defender/list system under which a small staff would service the needs of defendants and their chosen counsel. Facilities for legal research and investigation would be shared to reduce cost, while separate counsel would represent individual defendants in order to minimize conflict, maximize choice and allow for flexibility in the defence budget according to changing needs.
Counsel would be paid under a system of brief fees and refreshers, in order to avoid problems of overbilling and spiralling defence costs.
This system would be unlike any other operated by any international
or internationalized court. It is hoped that by benefiting from the experiences
of other systems, the problems experienced under these systems can be avoided.
28 February 2003
Annex 1: Inclusion of the Sierra Leone Bar
There is a frequently expressed concern that Sierra Leonean lawyers are being excluded from the proceedings of the court.
It is suggested that there are two reasons why Sierra Leonean lawyers should be included on as wide a scale as possible. Firstly, it is clear that there is a shortage of highly experienced defence lawyers in Sierra Leone. Most criminal defence lawyers, and almost all criminal defence lawyers who are interested in working with the Special Court, are of 5 years’ call or less. I am told by the President of the Bar Association that more senior lawyers have little time to devote to training and education of junior lawyers due to their heavy workload.
I am aware that there are plans by the Bar Human Rights Committee of England and Wales, and No Peace Without Justice, to hold training courses for the Sierra Leone Bar. The Special Court would provide an excellent opportunity for these lawyers to receive the sort of ongoing training that can only be obtained by working with more senior practitioners for extended periods of time. This is a real legacy which this Court can leave to Sierra Leone, and which would be of benefit not only in the instant cases but also in years to come.
Secondly, one of the main points of setting up a court such as this is to have a system which operates within the country in which the crimes were committed, and is therefore more accessible to the people who have suffered during the course of the conflict than the work of the ICTs. However, this aim is substantially undermined if proper use is not made of indigenous participants. The fewer national lawyers who take part in the system, the greater the gap between the ordinary Sierra Leonean and the work of the court. Justice operates on many levels; in order to be accepted by the people of the country it needs to be as inclusive of them and their interests as possible. The extensive use of the Sierra Leone Bar can only enhance this, and conversely their exclusion will seriously undermine it. The distancing effect which occurred in East Timor when the Special Panels system manifestly failed to harness the abilities of the local bar should act as a salutary lesson. It is increasingly likely that the new East Timor government will dispense with the Special Panels as soon as they are able, as they are not felt to be an institution that is relevant to the Timorese people.
I am aware that a significant step has been taken by the employment of two Sierra Leoneans in the new defence unit at P2 level. The intention as I understand it is that they are to act as duty lawyers. This development is to be commended. However, in my opinion this should only be the beginning of the process. Under current plans, duty lawyers will have a substantial part to play in the early stages of cases, before trial counsel are employed. They will however not be able to represent clients at trial without substantial conflicts of interest arising, which would negate their ability to continue working as duty lawyers in other cases. In other words, once they are employed on an individual case, their duty work is likely to stop.
There may well be many other cases in which the use of a Sierra Leonean “junior” to assist with all or part of a case is helpful. The director of the defence unit could identify such cases. He or she could also assess the extent of such a need. It might be possible to have a junior counsel to assist with a particular point of law or set of witnesses, rather than the whole trial. It should also be noted that it is often beneficial in cost terms if a junior can conduct earlier and simpler parts of the case, thus avoiding the need for senior counsel to be brought in from abroad on all matters.
This use of juniors would be a more inclusive approach towards the Sierra Leonean Bar. It would encourage many more lawyers to get involved on a limited level, without giving up their own practices which they have often striven to build up in recent years. The use of local lawyers would not thereby be restricted to those lawyers who were prepared to leave private practice and go into permanent employment with the Special Court.
Annex 2: Lists of persons and organizations consulted in the preparation of this report
I am grateful for the time taken by many participants in the SCSL and the legal system of Sierra Leone for taking the time to assist me in the compilation of this report during my visit to Freetown 14-21 February 2003. In particular:
Hon Eke Ahmed Halloway - Attorney General and Minister of Justice
Robin Vincent - Registrar SCSL
Mariana Goetz - Legal Adviser, Registry SCSL
Oliver Nylander - President, Sierra Leone Bar Association
Saleem Vahidy - Chief, Victims and Witness Unit,
SCSL
Claire Carlton-Hanciles - Duty Counsel, SCSL
Ibrahim Yilla - Duty Counsel, SCSL
Alison Smith - No Peace Without Justice
John Stompor - No Peace Without Justice
Andrew Swindells - No Peace Without Justice
Deborah Chatsis - Chairman, Management Committee
Various members of the Management Committee of the SCSL
I am also grateful to a number of experienced practitioners who took the time to read and comment on this report, and to share their experiences of other international tribunals in respect of providing a proper system for defence. I would particularly like to thank:
Diana Ellis QC - Defence Counsel, ICTR
Howard Morrison QC - Defence Counsel, ICTY and ICTR
Steven Kay QC - Defence Counsel and amicus curiae, ICTY
and ICTR
Quincy Whitaker - Criminal Justice Consultant for DFID,
Kosovo
Steven Powles - Defence Counsel, ICTY
Caitlin Reiger - Defence Counsel and Court Monitor, East
Timor
Stuart Alford - Prosecution Counsel, East Timor