Ethical obligations of counsel in criminal proceedings: Representing an unwilling client

Criminal Law Forum

Volumn 12, Issue 4, 2001, Pages 487-507

  Ntanda Nsereko, Daniel D ^a,b,c,d  

^a UNIVERSITY OF BOTSWANA   (Botswana)

^b University of Eastern Africa   (Kenya)

^c HOWARD UNIVERSITY   (United States)

^d NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27144512579     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/a:1016198403235     Document Type: Article

References (54)

1. International Covenant on Civil and Political Rights, (1976) 999 U.N.T.S. 171, art. 14(3)(d);
2. African Charter on Human and Peoples' Rights, O.A.U. Doc. CAB/LEG/67/3 rev. 5, art. 7(1)(c);
3. American Convention on Human Rights, (1979) 1144 U.N.T.S. 123, art. 8(2)(d);
4. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), (1955) 213 U.N.T.S. 221, E.T.S. 5, art. 6.
5. Statute of International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), annex, art. 21;
6. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex, art. 20;
7. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (1998), art. 67.
8. Pett v. Greyhound Racing Association (No. 1), [1968] 2 All E.R. 545, p. 549.
9. 5 Boswell's Life of Johnson (Birkbeck Hill, ed.) 26. Cited by Lord Simon of Glaisdale in Waugh v. British Rails Board, [1979] 2 All E.R. 1169, p. 1176.
10. See Yuill v. Yuill, [1945] pp. 15, 20 where Lord Greene, M.R., of the English Court of Appeal said: "A judge who observes the demeanour of the witnesses while they are being examined by counsel has from this detached position a much more favourable opportunity of forming a just appreciation than a Judge who himself conducts the examination. If he takes the latter course he, so to speak descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the Judge's examination is, as it was in this case prolonged and covers practically the whole of the crucial matters which are in issue." 6 Note 1, supra, article 14(3)(d) (emphasis added).
11. Statute of International Criminal Tribunal for the former Yugoslavia, supra note 2, art. 21(4)(d);
12. Statute of the International Criminal Tribunal for Rwanda, supra note 2, art. 20(4)(d).
13. Directive No. 1/94 (IT/73/73/REV.7). Available at http://www.un.org/icty/ basic/ counsel/IT73_rev7-e.htm.
14. See Kambanda v. Prosecutor (Case No. ICTR 97-23-A), Judgement, 19 October 2000, and the authorities cited therein at para. 33; also see Prosecutor v. Ntakirutimana, (Case No. ICTR-96-17-T), Decision on the Motion for Replacement of Assigned Counsel, 11 June 1997.
15. Generally see Meredith Blake & Andrew Ashworth, Some Ethical Issues in Prosecuting and Defending Criminal Cases, [1998] CRIM. L. REV. 16.
16. In the Botswana case of Ditshwanelo & Anor v. Attorney-General, Misc. App. No. 2 of 1999 (unreported), the applicants were charged with murder. They were previously represented by counsel who, because of conflict of interest reasons, withdrew from the representation. Their defence was that the confession statements that the prosecution sought to use against them were obtained as a result of torture and that they did not receive adequate interpretation when the statements were being taken from them. The new counsel who was pro deo did not talk to them about their defences or at all before he appeared in court to represent them. Consequently counsel did not object to the admission of the confessions. They were accordingly convicted and sentenced to death. The conviction was subsequently set aside on account of inadequate representation.
17. Counsel may withdraw from a case where the accused person, contrary to the advice of counsel, insists on giving evidence. If the accused complies with counsel's advice and does not give evidence and is subsequently convicted he or she cannot use the fact that he or she did not give evidence as a ground of appeal. The accused may however do so if it is apparent that counsel did not inform him or her of the right to withdraw counsel's mandate in case of disagreement with counsel. On this point see the South African cases of R. v. Matonsi, [1958] 2 S.A. 450; S v. Mushimba & Anon, [1977] 2 S.A. 829; and S v. Majola, [1982] 1 S.A. 125.
18. In Kambanda v. Prosecutor, supra note 9, the appellant pleaded guilty to charges of genocide and was convicted and sentenced to life imprisonment. He appealed against the conviction and sentence on the ground that he was not adequately represented by counsel. The Appeals Chamber of the International Criminal Tribunal for Rwanda dismissed the appeal, holding that the appellant failed to prove to its satisfaction that counsel was incompetent. On the contrary, it was satisfied that counsel "carried out the functions of his office in the normal manner." Regarding the standard that may be applied to cases of incompetent representation note the following opinion of the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 674 (1984), at p. 694: "Judicial scrutiny of counsel's performance must be highly differential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defence after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effect of hind-sight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; . . . There are countless ways to provide effective assistance in every given case. Even the best criminal defence attorneys would not defend a particular client in the same way."
19. See the English case of Rondel v. Worsley, [1969] 1 A.C. 191.
20. [1962] 1 All N.L. 287.
21. Ibid., at p. 292.
22. Ibid., at p. 293.
23. For example, Rule 97 of the ICTR Rules of Procedure and Evidence provides: "All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure." See also Rule 97 of the ICTY Rules of Procedure and Evidence.
24. See the English case of Minter v. Priest, [1930] A.C. 558, p. 568, where Lord Buckmaster said: "The relationship of solicitor and client being established, it is not a necessary conclusion that whatever conversation ensued was protected from disclosure. The conversation to secure this privilege must be such as, within a very wide and generous ambit of interpretation, must be fairly referable to the relationship, but outside that boundary the mere fact that a person is speaking as a solicitor, and the person to whom he speaks is his client affords no protection." For South African cases on the point see State v. Green, [1966] 3 S.A. 896 and R. v. Fouche, [1953] 1 S.A. 440. The broad wording of the ICTR Rule cited above tends to suggest all communications between a lawyer and his client irrespective of the purpose are privileged. But for a contrary view, see Daniel D. Ntanda Nsereko, Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 2-3 CRIM. L. FORUM 507 (1994), p. 546.
25. See for example, R. v. Cox and Railton, (1884) 14 Q.B.D. 143, p. 167, where Stephen J. said as follows: "The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not come into the ordinary scope of professional employment."
26. Generally see P.J. Baker, Lawyers' Duty to the Court, 114 LAW QUARTERLY REV. 63 (1998).
27. In the Ditshwanelo case, supra note 11, counsel withdrew from the case on discovering that the victim of the murder with which his clients were charged was his wife's relative.
28. Generally see Michael Bohlander, A Silly Question? Court Sanctions Against Defence counsel for Trial Misconduct, 10 CRIM. L. FORUM 467 (1999).
29. See Rames & Lawrence Maharaj v. Attorney General of Trinidad and Tobago, [1977] All E.R. 411. In Prosecutor v. Aleksovski (Case No. IT-95-14/1), Judgement on Appeal by Anto Nobilo against Finding of Contempt, 30 May 2001, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia acquitted Anto Nobilo, defence counsel for General Blaskic, of contempt after naming and describing a witness who had been granted protective measures on the ground that he did not do so knowingly.
30. State v. Lesego Thebe & Anor, [1993] B.L.R. 484 at p. 511. Emphasis added.
31. See Linwood v. Andrews Moore, (1888) 58 L.T. 612.
32. Incorporated Law Society v. Bevan, [1908] 2 T.S. 724, 731-732, per Innes, C.J.
33. Prosecutor v. Tadic (Case No. IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000.
34. See the South African case of Schoeman v. Thompson, [1927] 2 W.L.D. 282.
35. In re G. Mayor Coke, (1889) 5 T.L.R. 407.
36. In a case from the former Gold Coast (now Ghana), the West African Court of Appeal deprecated the action of counsel when he lodged an appeal with no grounds of appeal merely to delay the successful party: Neif Joseph Halaby v. Anis Joseph Halaby & Anor, 13 W.C.A. 170 (1951).
37. "When the counsel has satisfied himself that he has no argument to offer in support of his case, it is his duty at once to say so, and to withdraw altogether. The counsel is master of the argument and the case, and should at once retire if he finds it wholly unsustainable, unless he has express instructions to the contrary." The Earl Beauchamp v. The Overseers of Mandresfield, I.R. 8 C.P. 245, 253 (1872).
38. Prosecutor v. Kupreskic et al. (Case No. IT-95-16A), Decision on Motions by Zoran Kupreskic & Another, 18 June 2001. It is pertinent to note that Rule 73(E) of the ICTR Rules of Procedure and Evidence explicitly empowers a Chamber to "impose sanctions against counsel if counsel brings a motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof."
39. Prosecutor v. Tadic, supra note 28. See also the Botswana case of Rugwaro v. State, [1996] B.L.R. 660 in which the Botswana Court of Appeal set aside a conviction against the appellant on the ground when the appellant arrived late in court he did not do so with intent to interfere with or to obstruct the proper administration of justice.
40. (1844) 7 Ir.L.R. 216, pp. 311-312, per Crampton, J.
41. Rondel v. Wosley, [1969] 1 A.C. 191, p. 227.
42. Prosecutor v. Barayagwiza (Case No. ICTR 97-19-T), Decision on Defence Counsel Motion to Withdraw, 2 November 2000.
43. Prosecutor v. Milosevic (Case No. IT-99-37-PT), Order Inviting Designation of Amicus Curiae, 30 August 2001.
44. In a hard-hitting judgment the Chamber said, at para. 112: "The Tribunal - an institution whose purpose is to ensure that justice is done - must not place its imprimatur on such violations. To allow the Appellant to be tried on the charges for which he was belatedly indicted would be a travesty of justice. Nothing less than the integrity of the Tribunal is at stake in this case. Loss of public confidence in the Tribunal, as a court valuing human rights of all individuals - including those charged with unthinkable crimes - would be among the most serious consequences of allowing the Appellant to stand trial in the face of such violations of his rights. As difficult as this conclusion may be for some to accept, it is the proper role of an independent judiciary to halt this prosecution, so that no further injustice results."
45. Under article 25 of the Statute and under Rule 120 of the Tribunal's Rules of Procedure and Evidence. A requirement of this Rule is that the new facts "could not have been discovered through the exercise of due diligence".
46. Emphasis added.
47. Excerpts of the letters are reproduced at paragraphs 11 and 12 of the decision.
48. It cited a case of the European Court of Human Rights, Poitromol v. France, Series A, Vol. 277A, Judgment of 23 November 1993, para 23, and stated that "a person charged with a criminal offence does not lose the benefit of the right to legal assistance merely on account of not being present at the trial".
49. Para 24.
50. Para. 21. Emphasis added.
51. Prosecutor v. Nyiramashuko & Nthobali (Case No. ICTR-97-21-T), Decision on Ntahobali's Motion for Withdrawal of Counsel, 22 June 2001.
52. Prosecutor v. Milosevic, supra note 38.
53. Rule 47 of the Tribunal's Rules of Procedure and Evidence provides: "A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organisation or any person to appear before it and make submissions on any issue specified by the Chamber."
54. According to the Shorter Oxford English Dictionary, "issue" means "a point or matter in contention between two parties". According to Black's Law Dictionary, "issue" means "a disputed point or question to which parties to action have narrowed their several allegations and upon which are desirous of obtaining either decision of the court."