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 The warrant was subsequently withdrawn following an issue raised as to whether Brigadier Fernando was immune from prosecution for the offences due to diplomatic immunity.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)