If UKLFI base their complaint on the premise that Karim Khan is a private prosecutor, or is otherwise acting as a barrister subject to the professional standards of the BSB, then this premise is misplaced. The Statute establishes that the Prosecutor is one of the Court’s principal officers (along with the President and the Registrar) - Article 34(1). Furthermore, Article 42(5) dictates that Karim Khan cannot engage in any other professional obligations while he is the Court’s Prosecutor, so he cannot hold himself out as an active member of the English and Welsh bar. Indeed, paragraph 10 of the Code of Conduct for the Office of the Prosecutor provides that where there is a conflict between the requirements in the Court’s Code of Conduct, and any external codes of professional responsibility (such as the Code of Conduct of the BSB), the OTP’s Code of Conduct prevails. Therefore, for as long as Karim Khan is the Prosecutor of the Court, he cannot reasonably be said to be acting as a barrister subject to the BSB’s regulations and Code of Conduct.
Joshua… firstly I would like to thank you for this blog. Unlike another here I appreciate that you raise matters of law of interest to you especially if it involves the work of the ICC. Secondly I asked the question initially because I felt that prosecutor’s for the ICC would not always enjoy the approval of the country they hailed from in carrying out their role. It seemed to me *pressure* might be put on them in some situations & some protections would need to be built in - it seems it may have been? Thirdly I can’t imagine the ICC’s codes of conduct don’t include a prohibition on misleading the court.
*thanks for your response here but be assured I am grateful for links you unfailingly append to your blogs & read them all.
There’s almost certainly (I’d say certainly but I don’t know for certain - just seems inconceivable that there are not) disclosure obligations at the ICC *BUT* (importantly imo) the arbiter of breaches of those codes/obligations would be the ICC. To suggest that the Bar Standards Board have any role here seems, in principle, very odd to me… so, for instance, the idea that claims made by the state of Israel (or state actors) should be accorded any reliability whatsoever (given independent scrutiny by press is currently being denied) could/would render the ICC useless. The British state (& therefore the BSB) may regard Israel’s assertions as reliable *in principle*… the ICC might say that until restrictions on journalists reporting are removed nothing the State of Israel asserts can carry any weight *in principle*. Our world (& the rule of law) might greatly benefit from such a rule? Only if you believe states can never commit crimes against there own citizens would independent scrutiny be wholly unnecessary. I’m addressing you as a journalist here.
Joshua, your legal commentary is invariably well balanced and worth reading…….except in the very important and tragic case of the conflict in the Middle East. You are perfectly entitled to be a strong supporter of the government of Israel if you so wish, but speaking personally, I’d prefer you not to bring it in to your otherwise excellent legal blog. To many neutral observers it seems obvious that serious war crimes have been and are still being committed in Gaza and possibly the West Bank too, and I personally welcome the involvement of the ICC.
I couldn’t have put it better myself. I will add that the Prosecutor’s submission that the issue of arrest warrants can be challenged after the fact is technically correct, as Article 15 of the Statute of the ICC allows for the defence to bring pre-trial challenges to the indictment and the jurisdiction of the Court as a preliminary matter.
Is Khan (when acting as advocate in ICC) holding himself out as a member of the E & W Bar?
This is what the UKLFI letter to him says:
You are registered as a practising barrister by the Bar Standards Board. You are also
identified and promoted as a member of Temple Garden Chambers on its website. On the
ICC’s website you are identified as Karim A.A. Khan KC and the biographical description
states “Karim is a barrister and King’s Counsel with more than 30 years of professional
experience as an international criminal law and human rights lawyer.” It adds that you
are a Bencher of Lincoln’s Inn. In short, you are, and hold yourself out as, a practising
member of the Bar of England and Wales.
As a practising barrister regulated by the Bar Standards Board, you must comply with the
requirements set out in the BSB Handbook. We set out the relevant provisions in Annex
A to this letter. Other members of your Office who are practising English barristers are
also subject to the rules.
In our view you provide legal services within the meaning of these rules when acting as
the Prosecutor of the ICC.
In applying these rules to your conduct as a prosecutor, particularly when making an ex
parte application, we consider that regard should be had to the principles set out in R (Kay
and another) v Leeds Magistrates Court [2018] EWHC 1233 (Admin):106
“23. It is not disputed that…
(1) Whilst the Code for Crown Prosecutors does not apply to private
prosecutions, a private prosecutor is subject to the same obligations as a Minister
for Justice as are the public prosecuting authorities – including the duty to ensure
that all relevant material is made available both for the court and the defence.
(2) Advocates and solicitors who have the conduct of private prosecutions must
observe the highest standards of integrity, of regard for the public interest and
duty to act as a Minister for Justice in preference to the interests of the client who
has instructed them to bring the prosecution – owing a duty to the court to ensure
that the proceeding is fair.
24. There is no doubt that the duty of candour applies to an ex parte application for
the issue of summonses. In R v Grays Justices, ex parte Low 1988 3 AER 834 a refusal
to dismiss summonses was quashed by this court because of a failure to comply with
the duty of candour. Nolan J (as he then was), who gave the leading judgment, said
at 837G (my emphasis):
… it is now established that the withholding of material information is in itself a
critical factor in determining whether a summons should be set side as an abuse
of the process of the court…
25. More generally, authorities…variously describe the duty as being one of “full and
frank disclosure” which “necessarily includes a duty not to mislead the judge in any
material way” and which requires the disclosure to the court of “any material which
is potentially adverse to the application” or “might militate against the grant” or
which “may be relevant to the judge's decision, including any matters which indicate
that the issue….might be inappropriate”.
26. As Hughes LJ (as he then was) memorably put it in In re Stanford International
Bank Limited [2011] Ch 33 at [191]:
“…In effect a prosecutor seeking an ex parte order must put on his defence hat
and ask himself what, if he were representing the defendant or third party with a
relevant interest, he would be saying to the judge, and, having answered that
question, that is what he must tell the judge….”
[…]
38. As this case demonstrates, the grant of summonses, typically conducted ex parte,
can have far reaching consequences. Compliance with the duty of candour is the
foundation stone upon which such decisions are taken. In my view, its importance
cannot be overstated.”
It seems to us, with all due respect, that
(1) On any view, the continuing publication of the Statement containing false allegations
is in breach of Core Duties CD3 and CD5 as well as Rules 8 and 9
(2) If the Statement is a fair summary of the Applications, in pursuing the Applications
you are not acting with candour and are not complying with the requirements of the
Handbook, including Core Duties CD1, CD3 and CD5, and Rules C3, C6, C8 and C9.
(3) If, on the other hand, the Statement is not a fair summary of the Applications, then
the Statement would be additionally misleading in misrepresenting the Applications
(as well as making false allegations), in breach of CD3, CD5, Rule 8 and Rule 9.
If UKLFI base their complaint on the premise that Karim Khan is a private prosecutor, or is otherwise acting as a barrister subject to the professional standards of the BSB, then this premise is misplaced. The Statute establishes that the Prosecutor is one of the Court’s principal officers (along with the President and the Registrar) - Article 34(1). Furthermore, Article 42(5) dictates that Karim Khan cannot engage in any other professional obligations while he is the Court’s Prosecutor, so he cannot hold himself out as an active member of the English and Welsh bar. Indeed, paragraph 10 of the Code of Conduct for the Office of the Prosecutor provides that where there is a conflict between the requirements in the Court’s Code of Conduct, and any external codes of professional responsibility (such as the Code of Conduct of the BSB), the OTP’s Code of Conduct prevails. Therefore, for as long as Karim Khan is the Prosecutor of the Court, he cannot reasonably be said to be acting as a barrister subject to the BSB’s regulations and Code of Conduct.
See update above.
I did wonder... thank you for your response... appreciated.
Joshua… firstly I would like to thank you for this blog. Unlike another here I appreciate that you raise matters of law of interest to you especially if it involves the work of the ICC. Secondly I asked the question initially because I felt that prosecutor’s for the ICC would not always enjoy the approval of the country they hailed from in carrying out their role. It seemed to me *pressure* might be put on them in some situations & some protections would need to be built in - it seems it may have been? Thirdly I can’t imagine the ICC’s codes of conduct don’t include a prohibition on misleading the court.
*thanks for your response here but be assured I am grateful for links you unfailingly append to your blogs & read them all.
See update above.
There’s almost certainly (I’d say certainly but I don’t know for certain - just seems inconceivable that there are not) disclosure obligations at the ICC *BUT* (importantly imo) the arbiter of breaches of those codes/obligations would be the ICC. To suggest that the Bar Standards Board have any role here seems, in principle, very odd to me… so, for instance, the idea that claims made by the state of Israel (or state actors) should be accorded any reliability whatsoever (given independent scrutiny by press is currently being denied) could/would render the ICC useless. The British state (& therefore the BSB) may regard Israel’s assertions as reliable *in principle*… the ICC might say that until restrictions on journalists reporting are removed nothing the State of Israel asserts can carry any weight *in principle*. Our world (& the rule of law) might greatly benefit from such a rule? Only if you believe states can never commit crimes against there own citizens would independent scrutiny be wholly unnecessary. I’m addressing you as a journalist here.
Joshua, your legal commentary is invariably well balanced and worth reading…….except in the very important and tragic case of the conflict in the Middle East. You are perfectly entitled to be a strong supporter of the government of Israel if you so wish, but speaking personally, I’d prefer you not to bring it in to your otherwise excellent legal blog. To many neutral observers it seems obvious that serious war crimes have been and are still being committed in Gaza and possibly the West Bank too, and I personally welcome the involvement of the ICC.
I couldn’t have put it better myself. I will add that the Prosecutor’s submission that the issue of arrest warrants can be challenged after the fact is technically correct, as Article 15 of the Statute of the ICC allows for the defence to bring pre-trial challenges to the indictment and the jurisdiction of the Court as a preliminary matter.
Much needed and appreciated update.Thank you.