The obligation to disclose materials in International Tribunals is centred towards having fair trials and upholding the rights of parties engaged in a course of action. However, the need for disclosure should be subjected to close examination by judges, prosecutors and defence alike. In spite of numerous decisions from the Special Court for Sierra Leone (SCSL) granting or dismissing motions for disclosure of materials by both prosecution and defence, difficulties still arise as to what should be disclosed and who has the obligation to do so. Such difficulties recently arise in the closing phase of the case for the defence in the trial of former Liberian president Charles Taylor, when they requested that the prosecution should disclosed all materials relating to payment made to potential defence witnesses whom the prosecution had earlier on contacted. This will not only bolters their case on allegation that the prosecution has been giving incentives to witnesses, but will points to the prosecution’s lack of discharging their obligations with regards disclosing materials to the defence. Is the prosecution obliged to make all materials available to the defence, be it exculpatory or otherwise? Or is the defence in turn has such responsibility of disclosing all materials they intend to use during their case? Or can they incriminate themselves by making available document they have come in contact with during investigation and which can be of assistance to the prosecution? While the latter question seems rhetorical, and potentially damaging, answers to the former ones can be demanding as they might seek to avoid trial by ambush, thus protecting and upholding fair trial rights. Unequivocally, this work seeks to restate the provisions of disclosing materials at the Special Court for Sierra Leone and what responsibility a party has.
The law governing the disclosure of materials at the SCSL is encapsulated in Rules 66, 67, 68 and 70 of the Court’s Rules of Procedure and Evidence (The Rules). The provisions are existing rules covered by other International tribunals that paved the way for the SCSL. Rule 66 provides for the prosecutor to disclose copies of all materials intended to be used throughout the case. Further, the defence can request for permission to inspect documents in the prosecutor’s custody which will be relevant for the preparation of their case. Rule 68 provides for the disclosure of materials which point to the innocence or will attempt to vindicate an accused. Simply put, the prosecution is under an obligation to disclose any material that is said to be exculpatory. The rule also guarantees the continuous obligation on the prosecutor to be disclosing such materials to the defence at any stage during proceedings. Despite these obligations on the prosecutor, must relevantly, Rule 70 may inhibit other provisions which guarantee disclosure if the source of the material is confidential. Thus it appears as if rule70 can override all disclosure obligations especially the continuing obligation of disclosing exculpatory materials to the defence, as long as the prosecution can establish that the material was obtained confidentially and the party has not consented into disclosing such materials. It follows that materials that the prosecution may not want to disclose would simply be placed under this category. While the rules are silent with regards the veracity of such claims, the trial Chamber has been exercising a fair degree of discretion on how to deal with such novelty questions.
The defence is obligated to disclose materials that amount to special evidence in so far as their case is concern. Specifically, Rule 67 provides for the defence to notify the prosecutor of its intent to enter the defence of alibi that is, claiming that the accused was not present at the scene where the crime was allegedly committed, in which case they will be required to disclose any material relating to the suggested location of the accused.[1][2] Remedy for breach of responsibility however differs from case to case. Theoretically, in ensuring effective disclosure, the Rules placed the responsibility on the defence to provide the prosecution with a case statement, setting the nature of their case and matters they tend to challenge in the prosecution’s case.[3] Notwithstanding this responsibility, there can be situations were in parties may not be clear as to their disclosure obligation. Further, materials relating to any special defence, such as insanity or lack of mental responsibility should be disclosed to the prosecutor. On the other hand, the Rules clearly impose the obligation on the prosecution to disclose all materials in its possession, save for those that come under rule 70. Whilst the Chamber can exclude evidence that has not been disclosed to the defence, the defence has the liberty to rely on special evidence even in situations where it has not been disclosed to the prosecutor.
The SCSL in earlier decisions has attempted to explain the underlying principle behind rules of disclosure and what is expected of applicant or respondent. Firstly, all parties are presumed to be acting with a reasonable degree of honesty, thereby placing them under the obligation to do what have been prescribed in the rules with regards discharging their obligation as to disclosure what will assist opposing party in the preparation of their case. In an event where a party acts contrary, the court can subsequently determine what materials can be disclosed under Rule 66, 67 and 68, or which materials cannot be disclosed pursuant to the provisions of Rule 70. In exercising this discretion, the Chamber has noted that the rights of the accused as enshrined in Article 17 of the Court’s Statute, should be necessarily protected at all stages of the trial. Chief among these is the right for adequate preparation, and disclosure forms the basis for such. To ensure adequate preparation, the accused must know the case that has been brought against him and he must be given sufficient time to prepare his defence. By disclosing materials to the defence, he can learn the nature of the case against him and consequently prepare his case.
In assisting the defence, Rule 68 also provides for the prosecution to further disclose materials that points to the innocence of an accused. Such evidence includes those that an accused can use in his defence in a bid to exonerate himself. Dramatically however, the prosecution determines what material amounts to exculpatory evidence. For the defence to make a successful application for disclosure where it appears that the prosecution has failed to disclose, they (defence) must establish that the requested materials are in the custody of the prosecution. However, it is inadequate to only say that the prosecution posses materials that are exculpatory and has reneged on their responsibility to disclose them. The defence must show with certainty the materials that are exculpatory and how they will establish the innocence of the accused.[4] Again this standard should be met in all matters regarding disclosure. There must be particularity with regards the materials being sought for disclosure and also what potential benefits a party is likely to have. Also, since the Chamber has discretion in determine materials for disclosure, for the defence to succeed, it must show that the prosecution has not acted in good faith and that by not disclosing, the accused may suffer undue and irreparable prejudice.
Exculpatory material has however not been a common future before the SCSL. The OTP has claimed to have been disclosing exculpatory evidence under Rule 68 but have largely been done in confidentiality, with the referred materials not been disclosed to the public. Other legal tussle relating to witness statement, interview notes and other documents in the prosecution’s possession have formed a larger part of the disclosure jurisprudence at the SCSL. In spite of its numerous decisions, a contending issue with respect to material that can form the subject for disclosure still looms. In addition to the prosecution’s responsibility of determining what amounts to exculpatory evidence and what in a given circumstance can form the subject for disclose, Rule 70 can override disclosure obligations. It provides for the prosecution not to disclose materials that have been obtained from a private source, except with the consent of such source. Arguably, prosecution may withhold materials and invoke the provision of rule 70. Nonetheless, if the defence can establish that such materials are in the possession of the prosecution and their sources are likely to be public, they can apply for disclosure. Applicable jurisprudence guarantees the defence can succeed if they can establish the availability of tangible evidence whose source would not require consent for disclosure and that such is in the custody of the prosecution.[5] Consequently, in as much as the rule provides for non-disclosure of certain materials the prosecution only have the onus to protect the source if that source has requested that the information or material be kept confidentially. Thus they cannot elect to shield their disclosure obligation by claiming that materials are from a confidential source and cannot be disclosed without the prior consent of the source.
Conclusively, the provisions of Rules 66, 67, 68 and 70 should be read concurrently with the provision of Article 17. The rights of an accuse should be protected and any issue that will cause irreparable prejudice with respect to the ability of the accused to adequately and effectively know about the case against him and subsequently prepare his defence, should be avoided. Protecting a source of information might be minimal with respect to the importance of the information for the exoneration of an accused. Defence however has the onus to get consent from confidential sources in order to pursue applications for exculpatory evidence. While the provision of Rule 70 should be adhered for respect of confidentiality, there should be a balance of disclosure obligation to show respect for fair trails and upholding the rights of accused persons.
[1] See SCSL Rules of Procedure and Evidence as amended May 2010 ( Rule 67)
[2] See SCSL Rules of Procedure and Evidence as amended May 2010 Rule 67 (B)
[3] See SCSL Rules of Procedure and Evidence as amended May 2010 Rule67 (c)
[4] See Prosecutor v Sesay, Kallon and Gbao, SCSL-04-15-T Decision on the Motion for Inspection of Witness Statement (Rule 66(A)(iii) and/or order disclosure pursuant to Rule 68
[5] See Prosecutor v Sesay, Kallon and Gbao, SCSL-04-15-T DECISION ON SESAY APPLICATION FOR DISCLOSURE PURSUANT TO RULES 89(B) AND/OR 66(A)(ii)