Edward Montague Associates
In 2017 the EU European External Action Service informed Judge Malcolm Simmons that he would be subject to an investigation. It was alleged that (a) he had “improper” communication with defence counsel; (b) he “interfered” in a case and © he had failed to comply with correct EU whistleblower rules of procedure. So what were the facts?
In the first case it was alleged Judge Malcolm Simmons had “improper” communications with defence counsel. What were those “improper” communications? The case in question was a war crime case. Judge Simmons had performed no judicial function in that case. At that time he was President of EULEX Judges. His was primarily a managerial role. He was also responsible for overseeing the allocation of cases to judges. There was nothing “improper” in him speaking with defence counsel.
In 2014 Judge Simmons was approached by defence counsel who expressed concern about the way EULEX judges had been assigned to the case. A Polish Judge had been assigned to preside in that case. All trial panels comprised three judges (two EULEX and one local judge). Another Polish judge was then assigned to the case as the second EULEX judge. It was alleged by defence counsel that (i) the Polish Presiding Judge had requested the assignment of the second Polish judge to the case; (ii) the assignment of the second Polish judge did not follow objective case allocation rules; (iii) the two Polish judges were having an illicit affair and (iv) by reason of the aforesaid there were questions regarding the fairness of the proceedings. These were matters that should have been addressed.
On appeal, defence counsel again raised these matters with the Supreme Court. The Supreme Court appeal panel, comprising a majority of EULEX judges, decided not to hear the evidence of Judge Simmons regarding the way the panel had been selected. That was a surprising omission given the obvious importance of his evidence. Of course, had the court heard his evidence it would have revealed the manipulation of the trial panel. The courts decision not to hear the evidence of Judge Simmons was simply damage limitation, or so the judges thought.
The defendants referred the case to the Constitutional Court of Kosovo. In June 2018 the Constitutional Court of Kosovo decided the Supreme Court should have heard the evidence of Judge Malcolm Simmons and found the EULEX judges of the Supreme Court in breach of Article 6 of the ECHR (the defendants right to a fair trial). Can there be anything more serious than judges of a EU rule of law mission denying defendants their right to a fair trial.
The Second allegation against Judge Simmons was that he had “interfered” in a case. It was alleged that Judge Simmons had interfered in a case, in which another EULEX judge was presiding, by temporarily suspending the transfer of a high-risk prisoner from a maximum-security prison to a lower security prison. There was no dispute that Judge Malcolm Simmons had spoken with the judge in the case who had made the order to transfer the prisoner and that he had “invited” her to “reconsider” her decision to transfer the prisoner from the high security prison. The judge in the case was the same female Polish judge involved in the first allegation against Judge Simmons. Judge Simmons reminded the judge that the prisoner was high-risk and that there were substantiated concerns that he might attempt to interfere with witnesses. The Polish judge refused to reconsider her decision. Thereafter the Acting President of the Court – not Judge Simmons – issued an order temporarily suspending the transfer of the prisoner. The transfer eventually went ahead and the prisoner was transferred to the lower security prison. One week later, during a search of the prisoners cell, a mobile telephone was found and the telephone call log revealed the prisoner had been in communication with alleged co-conspirators and witnesses. A red-faced judge then decided to transfer the prisoner back to the high security prison. So, Judge Simmons’ “interference” was that, as senior EULEX judge he had had the temerity to discuss with a junior colleague the transfer of a high risk prisoner – concerns that proved well-founded.
The third allegation was that Judge Simmons had failed to comply with whistleblower rules. Judge Simmons made allegations of serious misconduct against members of staff of the EU Rule of Law Mission including several Judges. In accordance with EU whistleblower rules Judge Simmons submitted his claim for whistleblower protection to Kenneth Deane, former Civilian Operations Commander of the EU European External Action Service. However, it is alleged in proceedings ongoing before a London Tribunal that Kenneth Deane and his Deputy Bert Versmessen had received copies of the emails unlawfully accessed from Judge Simmons’ private email account. Therefore, Judge Simmons requested that his claim for whistleblower protection be referred to a more senior, independent member of staff to assess. That did not happen. Instead, it is allleged that Kenneth Deane instructed Bert Versmessen to take charge of the investigations. The same investigators were investigating the allegations against him. Clearly this was not an independent investigation. The persons the subject of the allegations were, in effect, investigating themselves. Having pointed this out to the Foreign & Commonwealth Office it responded that it believed the investigation into Judge Simmons’ allegations was independent. Boris Johnson was the Foreign Secretary at the time and documents received from the Foreign and Commonwealth Office suggest that he was personally briefed on the matter. Judge Simmons wrote to Federica Moghirini but she failed to respond. All the time the spokesperson of the EEAS continued to tell the press Judge Simmons had refused to coopperate with the investigation. Why would he cooperate with an investigation that was so utterly flawed? Despite repeated requests the EU failed to initiate an independent investigation.
Were these really matters in respect of which Judge Simmons should have been censured? The European External Action Service believed they were. Why? Did it have something to do with the fact that he had been exposed as a whistleblower?
In 2016 the EU received copies of the private emails of Judge Simmons. These emails had been obtained unlawfully. The emails revealed that since 2013 Judge Simmons had reported to the UK Foreign & Commonwealth Office allegations of serious misconduct involving senior staff and judges of the EU Rule of Law Mission in Kosovo. Judge Simmons referred two cases to OLAF – the EU Anti-Fraud Department.
Judge Malcolm Simmons asked the EU to conduct an independent investigation into the unlawful accessing of his private emails. The EU instructed EULEX to conduct the investigation. The investigation was opened and shortly thereafter Judge Simmons was informed the investigation had been “closed”. EULEX eventually gave him access to the investigation file which only contained the letter to him informing him the investigation had been closed. On three occasions Judge Malcolm Simmons asked the High Representative, Federica Moghirini, to start an independent investigation into the unlawful accessing of his private emails. She failed to reply to his requests. The UK Foreign & Commonwealth Office stated in recently released documents that it “repeatedly” asked the EU to conduct an independent investigation into the unlawful accessing of Judge Simmons’ email. It failed to do so. However, in response to a subject access request, the Foreign Office was unable to find a single document in which it had asked the EU to conduct such an investigation. Documents disclosed by the Foreign Office not only suggest that Boris Johnson was personally briefed on matters, they also reveal the Foreign Office was reluctant to intervene on behalf of Judge Simmons because it feared an “escalation” of matters and was, it appeared, more interested in maintaining good relations with the EU during Brexit than it was in protecting a UK whistleblower. Is this the same Boris Johnson who has promised to ‘get tough’ with the EU? There are likely to be further embarrassing revelations as the case continues.