Thank you for offering the Prosecution that opportunity, Madam President. We have just a few comments to make.
First of all, the difficulty that we are in now, we suggest to you, was orchestrated by the accused by waiting until the 4th of June, at the session in which the Prosecution was to give its opening statement, to indicate he would not be present, he would not participate in the proceedings, and that he was terminating the counsel. So it's a bit difficult for this accused, through the Principal Defender, to now come and say, even though it's difficult, we should take all the time that the accused decides he needs to get what he thinks he wants in this case. That is not to say that he is not entitled to competent representation, and indeed he is. However, he is not entitled to determine who that representation will be presented by, nor the exact title of the people who will provide that representation.
The Statute, the jurisprudence, and fundamental fairness require competent counsel. Hopefully we have not heard the Principal Defender say in this courtroom that the list he maintains is a list that includes counsel who are not competent. Hopefully that has not been said. The Prosecution trusts that, indeed, that list contains the names of competent counsel.
So as to the way forward, first of all, we suggest you have to deal with this issue of purported self-representation, and we suggest that is not an issue because an accused such as this one cannot on one hand boycott the proceedings by refusing to attend and on the other hand say that he is representing himself. If he is boycotting the proceedings, he is not representing himself and so that, at this point at least, is not an issue.
Secondarily to that issue, even were this Trial Chamber to determine that the accused has made an unequivocal request to represent himself and that he will be allowed to do so, this Chamber, because it is your obligation and authority to ensure a fair trial, could take steps to appoint either stand-by counsel or, if the accused proved unable to represent himself, to then provide court-appointed counsel. But the Prosecution's position is that the Trial Chamber today should determine there is no issue of self-representation because this accused is, in effect, boycotting these proceedings.
Now, what about representation? This accused has Assigned Counsel. He has availed himself of the legal aid regime of the Special Court. He has no right to choose his counsel. He has a right to be consulted, but his attempts to boycott the proceedings or to obstruct the proceedings may not lead this Court to conclude that counsel cannot be assigned unless he agrees to it. He has no absolute right to agree.
So what counsel might be available either temporarily to move us forward or on a permanent basis?
First of all, counsel from the list, competent counsel from the list, to be assisted by members of the fully constituted Taylor team, who did not take it upon themselves to remove themselves from the case.
In that regard, your Honours, it appears that the Trial Chamber has accepted the termination by the accused of Mr Khan and has accepted his withdrawal. However, we do suggest that unless the Trial Chamber accepts that, that withdrawal is not effective; that, indeed, under 45(E), Rule 45(E), it is for the Chamber to determine such matters, especially now that we are at the commencement of this trial.
So we would suggest that counsel from the list be appointed, with or without the accused's agreement; that those counsel be assisted by members of the fully constituted Taylor team, who may still be available. We also suggest that, contrary to the assertions of the Principal Defender, that he and Duty Counsel are available to assist, at least in the short term, so that undue delay is avoided.
The Principal Defender has indicated that because of his position, he may have received confidential communications that would be a conflict. Absent a conflict, the theoretical possibility does not preclude him from participating in these proceedings.
In addition, Duty Counsel should be allowed and encouraged to proceed with the counsel from the list in that he has been involved in these proceedings. Any restrictions on the role of Duty Counsel which were in effect when Assigned Counsel was here and was performing his duties are no longer in effect if this Trial Chamber has accepted the withdrawal of Assigned Counsel. And in that regard, of course, we do note that Mr Khan is not here today in this courtroom.
That is the way forward that we would recommend.