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Summary

The Special Court for Sierra Leone (SCSL) needs a defence system which effectively protects the rights of the accused, while working within a reasonable and sustainable budget.

In order to ensure that the SCSL is, and is perceived to be, conducting fair trials, it is necessary to ensure that indigent defendants are represented by highly qualified lawyers who can provide “equality of arms” with the prosecution. A failure in this respect would violate the rights of the accused, and would tarnish the image and legacy of the Court.

The two principal ways in which a defence system can be organised are the Public Defender System, and the List System. In the former, indigent defendants are assigned staff counsel from a Public Defenders’ Office; in the latter, they choose counsel from a list of qualified and available lawyers, who are then paid on a consultancy or freelance basis. It is commonly thought that a Public Defender System provides a lower cost alternative to the List System.

There are significant problems with a Public Defender System. In particular, in a small field of subject matter such as that covered by the SCSL, there are likely to be insuperable conflicts of interest if one lawyer represents more than one defendant at trial. This means that the cost benefits of employing staff lawyers are significantly diminished, as payments are inflexible regardless of whether lawyers are fully occupied. Further, a “no-choice” system is likely to lead to some defendants refusing counsel and representing themselves. This is likely substantially to prolong the trial process, as well as providing unwelcome accusations of inequality of arms.

This report argues that a better way is to combine the best elements of both systems. This would involve setting up a defence unit to provide basic facilities such as duty counsel for newly arrested defendants, and research and investigation resources. However, defendants would be able to choose trial counsel from a list drawn up by the defence unit.

In order to ensure that the costs of employing trial counsel are limited, counsel should be paid set brief fees for trial preparation, and set daily fees for days in trial. This would eliminate the possibilities of overbilling. In contrast to the Public Defender System, it would mean that counsels’ fees did not continue to be paid on a monthly basis during periods when their cases were not in trial. This flexibility would provide substantial cost benefits over the period of operation of the SCSL.

This mixed system would:

· Provide a fully functioning defence unit to deal with emergency matters and to be a  continuous fixed cost resource for all defendants
· ensure choice of counsel
· avoid problems of conflict of interest
· reduce the incidence of unrepresented defendants
· provide equality of arms
· allow flexibility in personnel and payments

The result would be a better quality system operating at a limited overall cost.

Annex 1. Inclusion of the Sierra Leone Bar
Annex 2: Lists of persons and organizations consulted in the preparation of this report

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