Following the UK Foreign Office paying six figure damages to another former employee of the EU’s Mission in Kosovo, Judge Malcolm Simmons Responds to Birn Article

In an interview with journalists, Judge Malcolm Simmons responded to the article in Birn entitled ‘How a British Judge Caused Turmoil at the EU’s Kosovo Mission’ authored by Bronwyn Jones.

The article is presented as an objective, unbiased opinion. It is anything but that. Jones fails to report Judge Simmons’ responses to the allegations that are the substance of her article.  In his written responses, Judge Simmons countered each and every one of her allegations with compelling evidence.  Why did she fail to report his responses?  She fails to undertake the enquiries Judge Simmons invited her to undertake.   She fails to report the many positive statements that she received about his character and professionalism. Many of her accusations were never put to Judge Simmons.  Hers is a story that could have been written by the very people Judge Simmons had accused of corruption.  Bronwyn Jones lacks credibility. Is this the sort of journalistic integrity one should expect of Birn?

Bronwyn Jones re-hashes the tired fiction and distortions of truth that for so long have been circulated by the EU press. Let’s not forget: Birn is funded by the EU.

The timing of the Birn publication is also interesting, having been made within 48 hours of the UK Foreign Office agreeing to pay substantial damages to a former Foreign Office employee who alleged corruption in EULEX. The UK Foreign Office settled that claim in order to avoid those matters being the subject of scrutiny by an independent court. Indeed, the offer in settlement was made by the Foreign Office within days of Judge Simmons’ statement being filed in court. The UK Foreign Office had, at the time of settling the claim, created an internal briefing note on managing negative publicity that it anticipated would follow publication of the case.  In the context of that briefing note, the timing of her article was remarkable.

The truth is that Judge Malcolm Simmons exposed corruption at the highest levels.  He subsequently became the subject of a public misinformation campaign and was victimised by senior officials.  There is evidence senior civil servants obstructed investigations into serious criminal offences and may have conspired to pervert the course of justice. The UK Parliament Foreign Affairs Committee has so far failed to conduct an enquiry.

Judge Simmons served as an international judge of the Court of Bosnia & Herzegovina in Sarajevo from 2004 to 2008, assigned to the Special Panel for War Crimes and the Special Panel for Organised Crime. Following an interview process, he was appointed an International Member of the High Judicial Council of Bosnia & Herzegovina. He was appointed a judge in 2008 by the EUPT (predecessor of EULEX) following an interview by senior EU judges, including the then President of the Assembly of EULEX Judges. He was appointed an International Member of the Kosovo Judicial Council following a selection and interview process. He was appointed President of EULEX Judges in 2014 following an interview by senior management and senior judges of EULEX in Pristina and senior staff of the EEAS in Brussels. He served as a judge of the Court of Appeals and the Supreme Court. In 2016, he was selected for appointment for the Kosovo Specialist Chambers, having been interviewed by a panel of senior international judges (including a highly-respected judge of the ICTY in the Hague) who tested his legal knowledge and skills. Does Bronwyn Jones mention any of that? Why would she, it would undermine the purpose of her story.

When Judge Simmons left EULEX he had served as an international judge for 13 years. His appraisals by senior staff in EULEX were always exemplary. His contracts were renewed regularly. Any contract extension had to be approved by EULEX. Not once did EULEX claim he was not qualified. Not once did EULEX express any concern to the UK Foreign Office that he did not possess the necessary skills or experience. It fully endorsed his contract extensions. Indeed, in 2014 EULEX even promoted him to President of EULEX Judges. It was only AFTER he blew the whistle on corruption that EULEX decided he wasn’t qualified. Did Bronwyn Jones ask EULEX how many times it had written to the UK Foreign Office to complain about his competence or professionalism BEFORE he blew the whistle on corruption? She did not because she knew their response would undermine the purpose of her story.

Bronwyn Jones mentions the ‘Klecka’ and ‘Drenica’ cases. Judge Simmons had criticised the decision to prosecute the defendants in Klecka.  The prosecution case relied on the evidence of a single witness with a history of psychiatric illness who had died before trial and whose evidence was contradicted, not only by forensic evidence, but his own evidence. Jones opines Judge Simmons was wrong to suggest the prosecution should not have been brought and refers to comments made by Judge Dean Pineles, who was the lone dissenting voice on the first trial panel in Klecka. Judge Pineles believed it was correct the case went to trial.

Interestingly, having read the long and very detailed judgment written by Judge Simmons in which he summarily dismissed the charges, Judge Pineles wrote in an email to Judge Simmons “A very impressive piece of work…The analysis of [‘Witness X’] credibility was extremely thorough and your conclusions are certainly well grounded” Judge Pineles continues “I still believe a full trial was warranted even if the outcome was predictable. Now the judgment is based on the evidence, or the lack thereof, rather than what we would call a technicality.”

Judge Pineles, thought the outcome in Klecka was “predictable” given the lack of evidence. Again, one has to ask the question: why go to trial when there is a “lack” of evidence and the outcome is predictable? This was a case, the outcome of which on any assessment was ‘predictable’ and yet hundreds of thousands of Euros of EU taxpayers money was squandered.

Drenica is also interesting. This was a case involving the manipulation of the trial panel. Judge Simmons requested the panel be recused and a new panel appointed EULEX refused. The case proceeded and the defendants were convicted.  The defendants appealed averring the panel had been unlawfully composed.

The case went to the appeal court, a court comprising a majority of EU judges. Bronwyn Jones refers to Judge Simmons having written to the appellate panel inviting it to hear his evidence regarding irregularities in the panel composition. What she doesn’t state is that it was the panel that had contacted Judge Simmons and asked him to summarise the evidence he would give IF called to testify. Having told the appeal court there was clear evidence the composition of the panel had been manipulated and the defendants had not received a fair trial, they chose not to call Judge Simmons. What a surprise. She describes Judge Simmons being insistent. Maybe he could see what the other EULEX judges apparently could not: if the court did not hear his evidence, it would breach the most basic fair trial principles. Inevitably, the Kosovo Constitutional Court found the panel in Drenica had denied the defendants their right to a fair trial under Article 6 of the European Convention on Human Rights — because they did not hear the evidence of Judge Simmons.

A panel of EU judges working in an EU rule of law mission found to have denied the defendant his right to a fair trial. It does not get much worse than that. On the very day the Constitutional Court handed down its decision in Drenica, the EEAS commenced a disciplinary investigation against Judge Simmons. Was that another remarkable coincidence or evidence of the vindictive and wholly unjustifiable attitude of senior managers towards him?

Bronwyn Jones refers to documented claims by Judge Simmons of an attempt by a EULEX judge to interfere in Klecka. Judge Simmons was not the only judge who had made formal complaints of attempts to manipulate the outcome in criminal cases.  There were at least two other formal complaints made by different international judges in which they made accusations against the same senior member of EULEX staff. Bronwyn Jones does not mention that – although she was aware.

Klecka and Drenica were not the only cases where attempts were made to manipulate the outcome.  There were several other documented cases.  Emails and internal memoranda and reports refer to the manipulation. Those documents are in the possession of lawyers.

Jones also refers to the disciplinary investigation that was initiated against Judge Simmons.  This was an investigation initiated by people Judge Simmons had accused of serious misconduct. She and EULEX has desperately attempted to avoid any discussion regarding the composition of the disciplinary panel or the perverted process. It is very clear why: it was a sham process.  Let’s look at the process.

The panel comprised three persons. Only one was a judge. That was a breach of international jurisprudence, including decisions of the European Court of Justice, that a disciplinary panel in such cases should comprise ‘at least a majority’ of judges. These persons were selected by the very persons Judge Simmons had accused of misconduct. One was a logistics officer. You might wonder what qualification he had to decide whether a judge had acted appropriately in exercising his judicial function. Well, he had the perfect qualification: he was subordinate to one of the persons Judge Simmons had accused of corruption. This was corruption at the heart of the EU.

That’s the composition of the panel. Now let’s look at the process. The panel ignored important exculpatory evidence, including statements of senior judges. Indeed, in its decision, the panel does not even refer to those statements. Why would they? They were inconvenient and did not support the conclusion the panel wished to reach. Judge Simmons was not allowed to be present when the panel interviewed the witnesses it called to make a statement. He was only given what the panel described as a “resume” of their evidence. In other words, he received a brief summary of what the witnesses had said. He did not get to see everything the witness said but only those parts of their evidence the panel wanted him to see. He was not permitted to cross-examine witnesses. He had no opportunity to ask his own questions and witnesses proposed by his lawyers were not called to give evidence. The only witnesses who gave evidence to the panel were witnesses called by the panel. No defence witnesses were permitted to give evidence and no documentary evidence that Judge Simmons proposed was considered by the panel. Was this a ‘fair and impartial’ tribunal? The UK Foreign Commonwealth and Development Office has stated it believes the process was fair – although will not publicly say so.

The disciplinary investigation against Judge Simmons was commenced AFTER a fellow EULEX judge hacked into the private email account of Judge Simmons. Those emails revealed that he was a whistle blower and that since 2013 he had reported serious misconduct to both the UK Foreign Office and to the EU Anti-Fraud Agency. The EU Anti-Fraud Agency found there had been fraud by senior members of staff.

Judge Simmons demanded an independent investigation into the hacking of his private emails. That request was refused. Instead, an internal investigation was conducted by EULEX. When Judge Simmons insisted that person’s he knew to be in possession of his private emails be interviewed, including the famous former judge of the European Court of Justice who was investigating the allegations that had been made against me, Judge Simmons was informed by EULEX that the investigation into the hacking of his private emails had been “closed”. He was given no explanation. He demanded to see the investigation file to see what steps the investigators had taken and who had been interviewed. That request was initially refused. When he was eventually given access to the investigation file, it contained only one document: the notification informing Judge Simmons the investigation had been closed.

The UK Foreign Office has stated that it “repeatedly” asked the EEAS to conduct an independent investigation into the hacking of Judge Simmons’ private emails. However, the UK Foreign Office has not been able to produce a single document in which it had asked the EEAS to conduct such an investigation.

It was clear neither the EU or FCDO wanted an investigation into the hacking.  If, as expected, an investigation proved the private emails of Judge Simmons had been hacked by a judge of an EU Member State employed in an EU rule of law mission, it would have devastating consequences for the credibility of an already seriously tarnished mission.

The senior staff members of the EEAS who initiated the investigation against Judge Simmons were in possession of his hacked private emails. They were persons he had accused of serious misconduct. Indeed, they were the same persons who refused to initiate an independent investigation into the hacking of his private emails. One of those persons had interfered in an investigation involving senior staff of another EU mission. The same person had attempted to frustrate an investigation into corruption in EULEX. Internal emails between senior staff of the UK Foreign Office in the UK and Brussels suggest serious concerns had been raised by several EU Member States regarding the management of the EEAS. Both officials left their posts very soon after these matters emerged.

The UK Foreign Office has now disclosed documents that includes a memo from the UK Foreign Commonwealth and Development Office to the UK Representative in Brussels, Angus Lapsley, instructing him to oppose any calls for an independent investigation into the allegations of corruption made by Judge Simmons.

These were allegations that should have been the subject of investigation — not simply summarily dismissed by diplomats. Of course, Judge Simmons was not the only former UK Foreign Office employee whose allegations of corruption were ignored by the UK Foreign Office.

The UK Foreign Office knew the disciplinary process had been perverted by the persons Judge Simmons had accused of corruption. It chose not to enquire or intervene, presumably believing that ignorance provided a defence. It does not. Choosing to look the other way is not a defence. The Foreign Secretary at the time was Boris Johnson. Judge Simmons subsequently asked the then Foreign Secretary, now Justice Secretary, Dominic Raab, to refer the matter to the Parliamentary Foreign Affairs Committee. He refused claiming a “conflict of interest”.

There were also allegations of serious sexual impropriety and interference in investigations involving senior UK staff members, interference in criminal trials and other attempts to pervert the course of justice. All of these matters were brought to the attention of the Foreign Affairs Select Committee.  What did it do?  Nothing. The new Chair of the FAC, Alicia Kearns has sat on her hands. Senior Conservative MP’s and former ministers are implicated.

The UK Foreign Office has now paid very substantial damages to another former employee who made allegations of corruption and interference in the administration of justice similar to those made by Judge Simmons and, in some instances, involving the same persons.

It is now impossible to resist calls for an inquiry by a committee of the UK Parliament into the role of the UK Foreign Commonwealth & Development Office in these and other matters.

His Honour Judge Malcolm Simmons is currently the resident judge in the Falkland Islands, Acting Supreme Court Judge and His Majesty’s Coroner for the Falkland Islands, South Georgia, the South Sandwich Islands and British Antarctica.  He previously served as an international judge hearing war crime and serious organised crime cases. He served as an international member of two judicial councils in developing countries.  He is particularly well-known for his judicial reform work and has more that 20 years of experience training judges, prosecutors and lawyers. He has worked in judicial reform projects in Bosnia & Herzegovina, Kosovo, Serbia, Pakistan and Maldives. He is also the Team Leader of the European Commission project Supporting justice sector reform and anti-corruption in the republic of the Maldives

Recent Articles