Monday, 3 September 2012

Privileged Communication and the Principal Defender

One of the innovations of the Special Court for Sierra Leone was establishment of an office of 'Principal Defender'. This is an officer of the Court with particular responsibility for the defence of accused persons. Although there is little or nothing remaining in terms of concerns for those accused of core crimes, the Principal Defender has an ongoing role with respect to persons who have been convicted as well as those charged in the ongoing prosecutions for contempt.
Several weeks ago, in a prosecution involving attempts to influence witnesses to recant their testimony and thereby nourish a claim by convicted persons to have their verdicts overturned, an issue arose concerning privileged communication with the Principal Defender. The ad hoc Prosecutor sought a subpoena in order to compel the testimony of the Principal Defender with respect to communications with persons convicted by the Court.
Judge Doherty, who is hearing the case, asked me to act as amicus curiae and submit a brief on the question. Today, she issued her decision, declining to issue the subpoena to the Principal Defender. This is a decision that may have broader repercussions, notably at the International Criminal Court and the Extraordinary Chambers of the Courts of Cambodia (I exclude the Special Tribunal for Lebanon, on the assumption that there has been no communication with those who have been charged). Here is today's decision.