The Chief Magistrate of England and Wales, Emma Arbuthnot, ruled that Brigadier Priyanka Fernando, a former Sri Lankan Defence Attaché, will face a retrial on 7th May 2019 for making slit throat gestures to the protestors outside the High Commission in London. It is unknown if he will attend Westminster Magistrates Court on 7 May 2019 or what his defence will be.
The incident which forms the basis of the charges against Brigadier Fernando occurred on 4th February 2018 when Brigadier Fernando was filmed, whilst on duty in his military uniform, making repeated cut throat gestures to the protestors. The protesters were very frightened by these threats and brought a private prosecution against Brigadier Fernando. The private prosecutors supported by the International Centre for Prevention and Prosecution of Genocide (ICPPG) to bring the private prosecutors with the assistance of the Public Interest law Centre (PILC).
On 21st January 2019, Brigadier Fernando was convicted (in his absence) of threatening the protestors and a warrant for his arrest was issued. The warrant was subsequently withdrawn following an issue raised as to whether Brigadier Fernando was immune from prosecution for the offences due to diplomatic immunity. Accordingly, this was listed for further hearing to consider the issue of immunity.
On 1st February 2019, at Westminster Magistrates Court before the Chief Magistrate Emma Arbuthnot, Counsel for Brigadier Fernando argued that the Brigadier’s actions were covered by indefinite immunity as they were within his official duties to monitor any anti-Sri Lankan activities or LTTE activities and report them to the Sri Lankan High Commission and to prepare appropriate strategies to safeguard the High Commission. In support, the Defence relied on a “Job Description Document” issued by the Sri Lankan High Commission to Brigadier Fernando which provides that the Brigadier was officially authorised by the Sri Lankan Government to “Monitor any anti-Sri Lankan activities in the UK and report to the High Commissioner and through her to the Intelligent Agencies in Sri Lanka”.
However, the defence argument was rejected by the Chief Magistrate at a hearing on 1st March 2019 who found that: “It was not part of Brigadier Fernando’s job description to make the alleged cut-throat gestures on the three occasions, it could not be any part of the mission’s function and therefore the Minister Counsellor’s behaviour is not given immunity by Article 39(2) of the Vienna Convention. The Brigadier cannot call on the residual immunity that he would have been able to had the acts been performed in the exercise of this functions.” The Chief Magistrate also noted that the job description required Mr Fernando to “…strictly adhere” to “…personal behaviour and professional standards.”
Counsel for the Defence then made an application under section 142 of the Magistrates’ Court Act to have the conviction set aside. The case was adjourned to 15th March 2019 to deal with that application.
At the hearing today, 15th March 2019, the Defence argued that there had been procedural mistakes in this case which meant that the conviction was invalid. The Chief Magistrate agreed, quashed the conviction and ordered a retrial. The retrial will be held on 7th May 2019 at Westminster Magistrates Court.
In addition, it was concerning that some individuals close to the Sri Lankan High Commission were present at the hearing today and involved in filming the prosecutors, witnesses and protesters which was of concern. One of them, was caught by a Security Officer of the Court taking photographs of protestors through the window from inside the Court building. This was immediately brought to the attention of the Chief Magistrate and she warned all those present that it was illegal to take photographs or film anyone inside the Court building or to film/photograph people who may be witnesses outside the Court building.
The International Centre for Prevention and Prosecution of Genocide (ICPPG) will continue to facilitate this prosecution with the legal representations from Paul Heron and Helen Mowatt at the Public Interest Law Centre. Counsel for the private prosecutors was Peter Carter QC leading Shanthi Sivakumaran. (communiqué By ICPPG)
Tamil from the north / March 18, 2019
This thug is a Brigadier? I do not think he can even spell the damn word. Catch this bas&ard and throw his skinny arse in prison.
/
Amarasiri / March 18, 2019
Tamil from the North and (Sinhalese from the South),
Retrial is good. It will keep him occupied and may be one day he can reflect on his Para-stupidity, mean IQ 79., in Land where the-mean IQ is 100.
/
Burt / March 19, 2019
Amarasiri
“Retrial is good.”
Yes it will keep him occupied and keep Sri Lanka in the news.
/
Bodin / March 19, 2019
Now you see the language used by Tamil chugs. They were responsible for slitting the throat of hundreds of Muslims parying in a Mosque in Kanttankudy. The thrat-slit gesture of Brigadier Fdo was to remind the pro-LTTE hoards what could happen under their leader. It was a very appropriate gesture.
/
K.Anaga / March 19, 2019
An inappropriate gesture at an inappropriate time at an inappropriate place by an inappropriate person- a cut throat.
/
Burt / March 19, 2019
Education was and is secondary for Sri Lankan military. I am not sure whether he can spell it even in Sinhala.
/
kumaran / March 20, 2019
Thats the typical LTTE and separatist response!! You and all of you ignore the fact that her Britainic majesty’s government should NEVER have allowed your bunch of hooligans to wave the “tiger” flag on the National Day of Sri Lanka. If I were the President of Sri Lanka I would have recalled the Sri Lankan High Commissioner and down-sized the High Commission in London.
/
Kumarathasan Rasingam / March 21, 2019
Sri Lankan Armed Forces and Police are most undisciplined in the world. I do not understand what training they undergo in UK, US, INDIA. It is also a damn shame for these countries giving training to these thugs.
/
BSP / March 18, 2019
How can somebody else interpret this gesture as throat slitting? It may be he wiped off sweat; it may be he showed the protestors they themselves were slitting their throats. From inside a building he couldn’t have slit a throat of somebody who was several meters away from him in the open somebody with his finger.
/
Themalaya / March 19, 2019
Why a retrial?
Was he found not guilty in the trial?
There is nothing called a retrial. The matter ends. He won.
/
Emil van der Poorten / March 19, 2019
Themalaya;
Legal expertise (Sri Lankan brand) personified. Wouldn’t it, perhaps, let a respected system of jurisprudence arrive at its own conclusion?
/
Nimal / March 19, 2019
You sound ignorant of the British justice system. Sri Lankans who wear the uniform of our armed services have to behave like gentleman, wherever they are, even in foreign countries. You break their laws, you have to face the consequences. This man is arrogant, he should have realized those protesters have the right to protest, and ignored them.
He did not have to react that way. Stupid man.
/
clean slate / March 19, 2019
When outlawing an organization legally that org’n is deemed not to exist. How can they have a right to protest under the same laws?
/
Spring Koha / March 20, 2019
Nicely put Nimal.
The whole sorry affair would not have happened, if our FM had a robust system of choosing and preparing candidates for serving in diplomatic outposts. The silly Brigadier was a loose canon waiting to go off, and firmly believed in his own mortality. He may have been of use on the battlefield, but he was a disaster as a diplomat. In the pantheon of our diplomatic disasters he stands next to slapper Sajin De Vass Gunawardhena .
/
JD / March 19, 2019
Tamil from the North; Being a thug won’t be enough to become top rankers of the Army. They have to be good killers. So, just a gesture to scare off Tamils is nothing. Are British courts this stupid or just like Tamils, lot of Drama.
/
Tamil from the north / March 20, 2019
@JD boy, you cannot have cowards in military uniform scare people abroad, where your thugs in military uniform are not in command with weapons. So, tough bloody luck JD boy. A bit of thuggery like this can land your war hero thugs in a whole lot of trouble. Last time I heard, in the UK they do not tolerate this sort of nonsense.
Why don’t you send your war heroes to Toronto and we can teach them some manners.
/
Eagle Eye / March 19, 2019
Bhathiya and Santhush in their musical show held at Nelum Pokuna gave a very good message, particularly to ‘Toiyas’ in Colombo who have forgotten that there was a war that dragged on for nearly four decades and who brought peace to people in this country. They were talking about poor rural youths who sacrificed their lives, legs, arms, eyes to liberate this country from enemy and restore peace. They said those who died could not enjoy the peace and even some who are alive are crippled and cannot enjoy the peace they brought. These heroes are forgotten and ignored by those who enjoy the peace.
/
Spring Koha / March 20, 2019
Eagle Eye,
Those who gave so much were not fighting an enemy but helping to put down their own fellow citizens. The forgotten heroes are being forgotten especially when people see them behave like thugs.
The war dragged on for nearly four decades because a lack of will mainly due to the simple truth that there were too many making a lot of moolah fed by the large military budgets. So many overseas university fees of military children were financed by the extended fighting.
/
Eagle Eye / March 19, 2019
Why don’t these British crooks who talk about war crimes in Sri Lanka arrest Adele Balasingham who put cyanide capsules around the necks of LTTE cadres and charge for war crimes. White hypocrisy. This is the reason why Native Americans say ‘White people talk with a forked tongue’.
/
Tamil from the north / March 20, 2019
Eagle blind Eye, for starters why don’t you arrest Karuna amman and all surviving LTTE top command who are working for Rajapaksa in SL? By the way, KP Pathmanathan who was the main arms dealer who procured all the weapons that killed thousands of soldiers and civilians in SL is also with the Rajapaksas and you can easily find him. Otherwise shut up and piss off.
/
Pon Kulendiren / March 19, 2019
It is a disgrace for the Sri Lankan foreign ministry to have officials with thug like behavior in the High Commission. What administrative action taken against this man in his behavior as Per Administrative Regulations, This is another form of HR violation by Sri Lankan officer in a foreign soil. There is a limit for immunity.
/
Mano / March 19, 2019
Oh My God !
The Poor IQ of the Brigadier has to be blamed for all this show downs. Was there no Legal advisor at the Consulate to advise and prevent such blunders ? Appey See Lanka !
/
ATUL / March 19, 2019
forget about Nagananda or Brigadier
see case of Venezuela`s hypocrisy- former colonists USA UK EU countries recognised man in the street JUAN GUAIDO out of the blues never contested presidential election not known to many Venezuelans on 23 January 2019 he was made president
but former colonies representing AFRICAN UNION, NON ALIGN MOVEMENT NAM Nicholas Maduro is still Venezuelas president
isn’t this neo colonialism
/
John / March 19, 2019
British authorities must be prosecuted for letting Kallathoni terrorists to come so close to the war hero and the High Commission of Sinhala-Buddhist Sri Lanka.
/
In Sri Lankan context, this hand gesture means ” I am going to pull off your cyanide capsule necklace in order to save your valuable life”.
/
Those who go on about British justice, explain why Prince Phil wasn’t prosecuted for his serious motoring offence.
/
Tamil from the north / March 20, 2019
Ado John boy, this is coming from a fool who calls himself John. You should drop the name John and name yourself Uduravana Gamanpila Upatissa Banda Premachandra Rohana Wijeyaweera. What are you doing with a nice name like that in buddhist Sri Lanka?
/
John / March 19, 2019
After Brexit, Britain is going to be friendless in Europe. So they’d better be careful angering Sri Lanka favouring Kallathoni Eelam terrorists over lives saving war hero.
/
Tamil from the north / March 20, 2019
Johnny China owns SL now.
/
Upali / March 19, 2019
”Your bad deeds will follow you like a cart following the bullocks” Buddha.
/
Fred / March 19, 2019
It is an old adage that the law does not concern itself with trifles. So, I am more than a little surprised that this matter even made it as far as London’s Westminster Magistrate’s Court. Why that court saw fit to even consider the matter defies common sense. The complainants had alleged that the Brigadier’s gesture had struck fear into their hearts, that they felt threatened. What piffle! What absolute piffle! If you believe that, you’ll believe anything. The law’s delays is the subject of continuing lament in Britain but is it surprising these delays occur if the courts see fit to entertain silly complaints? No wonder the system gets clogged up.
The Brigadier was being silly making that silly gesture but did the magistrate have to try to outdo him? It makes me think of the saying that the law is an ass. Maybe, the good magistrate wants to ensure we don’t ever forget that!
/
Spring Koha / March 20, 2019
Fred, Fred, Fred,
You are spot on reminding us that the law does not concern itself with trifles. I agree that it is a bit far-fetched to think that many of the hardened demonstrators were soiling their lungi’s in fear.
But in Britain they take these matters differently than we do here in sunny Lanka. Here the silly Brigadiers silly gesture would have won him a paddikkama from the President. But the old colonial master is wary of foreigners (especially those masquerading as diplomats) who can get up to all sorts of dodgy practices (even outdoing the Brits who are masters of dodgy business) especially on British soil.
I nearly fell off my perch when I read your… ‘No wonder the system gets clogged up.’….Hang on, we in Sri Lanka can teach the rest of the world a thing or two about clogged up courts, Fred.
Alas, the Westminster magistrate is unlikely to to read your exhortation. They will hear the case out and reach their learned conclusion. Hold tight!
/
Fred / March 21, 2019
Spring Koha,
Your points are well made, and I have no quarrel with what you say. I agree the Brits view these matters differently, and personally I have the greatest admiration for some British institutions and her great liberal traditions. What makes me angry, though, is that the Brits have allowed themselves to be taken for a ride by the likes of these protestors who will do all they can to exploit and take advantage of any loophole or any ‘opening’ for their advantage. And here we have them using the courts, to pursue their relentless fight against the GOSL, never mind how flimsy their grounds. As you are no doubt aware, one of the traditional tests the British apply to assess the merits of a case is to consider how the mythical ‘reasonable man’ will have acted in the circumstances. Applying that test here, could it be said that any reasonable man, in the shoes of these protestors, who are now British citizens or permanent citizens, enjoying the full protection afforded by Her Majesty’s government, and well outside the reach of the GOSL, have felt actually threatened by the Brigadier’s puerile gesture? I think not. I am surprised the court was even prepared to entertain this frivolous complaint.
/
Spring Koha / March 24, 2019
Fred
You pick up the story too late. I go right back to independence from when I was eye witness to our Tamil community suffering bullying, harassment, and violence, through the 50’s 60’s 70’s and finally July 1983. That was the last straw. The exodus began and our problem became a universal one as Tamil refugees ended up in India, Europe, North America, and Australia. So, when you write…’ these protesters, who are now British citizens or permanent citizens, enjoying the full protection afforded by Her Majesty’s government’….I think if only the GOSL had given them full protection during those turbulent years long ago, none of this would have happened. The power-hungry politicians of every government of ours since independence couldn’t give a damn for the fate of the Tamils. Many of the Tamils forced to flee did so with heavy hearts. They did not want to leave the land they were born in. As much as this was our homeland, it was theirs too. We are all creatures of circumstance and if we cannot get along together, we end up suffering together. After 70 years we still rile against the British for things we claim they did to us. So, just like that, the Tamils who suffered the injustices of those bad years are now holding us to answer. It is a sad story but, alas, one that we brought on ourselves. The British know our story all too well, so, understandably, they go easy on the Tamil community in their midst. To repeat: Just like we still have a go against the British for all they did, so will the Tamil Diaspora continue to take every opportunity to have a go at the GOSL of Sri Lanka for the evil that was inflicted on them. It is what humans do! We just have to grin and bear.
/
K.Pillai / March 20, 2019
British government has found a loop hole to let Brigadier Priyankara Fernando off the hook.
.
Following the throat-slitting gesture incident, Brig. Fernando was suspended by the Lankan Foreign Ministry. Just before he reached Colombo, the Lankan Army Commander Lieutenant General Mahesh Senanayake in his INFINITE wisdom said “I will not initiate an inquiry”. This implies that there is no wrong doing.
.
CT of 23 March 2018 had ~ “Army Commander Brags About Brutality, President Gives Silent Consent”.
Lieutenant General Mahesh Senanayke tells the President that “We crush skulls and blow ears as routine part of our operations”.
/
Kumarathasan Rasingam / March 21, 2019
Tamils in Sri Lanka are treated like third class citizens since the British left Ceylon. Their Maha Vamsa mentality has poisoned their mindset along with the Maha Sanga and the political leaders who are greedy for power.[For politicians it is easy way to come to power by suppressing the lives of Tamils. The Armed forces are protected, and promoted if they kill the Tamils and they enjoy immunity. They behave like thugs even if they are on diplomatic postings. Please refer the article for more detailed information.
JUSTIFICATION FOR THE TAMILS TO FIGHT TO REGAIN THEIR LOST SOVEREIGNTY
https://www.academia.edu/38336018/JUSTIFICATION_FOR_THE_TAMILS_TO_FIGHT_TO_REGAIN_THEIR_LOST_SOVEREIGNTY?fbclid=IwAR0ImpsTor1S0ywtkoiw8Hk3CJ7FhpaqIUzMDlMc9-5g64JFb6lN-GHkXO4
/