Brigadier Priyanka Fernando To Face A Fresh Retrial On Friday: ICPPG

Brigadier Priyanka Fernando, the Sri Lankan Diplomat and Former Defence Attaché, will Face a Retrial on 18th October 2019

Brigadier Priyanka Fernando, a Sri Lankan Diplomat and the former Sri Lankan Defence Attaché of the Sri Lankan High Commission in London, is to face a fresh trial at the Westminster Magistrates Court on Friday, 18th October 2019 for threatening to kill the protesters by making repeated slit throat gestures outside the High Commission in London.

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 who were conducting a peaceful demonstration outside the Sri Lankan High Commission in London. The victims felt intimidated by these threats and brought a Private Prosecution against Brigadier Fernando as the Police has let them down by claiming that he has diplomatic immunity and therefore cannot be arrested. The International Centre for Prevention and Prosecution of Genocide (ICPPG) assisted the victims to bring the private prosecutors with the legal representations of the Public Interest Law Centre (PILC).

As Brigadier Fernando chose to ignore the summons issued by the Westminster Magistrates Court, the Court was left with no option to proceed in his absence. Accordingly, the first trial took place in absentia on Monday, 21st January 2019 and he was found guilty of two charges under the Public Order Act (sections 4a and 5). He was convicted of intending to and causing harassment, alarm and distress with his gestures, which were made after he had taken photos and videoed Tamil protestors. The panel of three honourable British Judges, headed by the Chief Magistrate Ms Sonia Henley, who carefully considered the evidence, found Brigadier Priyanka Fernando guilty and issued an Arrest Warrant, without bail.

However, the warrant was subsequently withdrawn following the intervention of the FCO who raised an issue upon the pressure of the Sri Lankan government, as to whether Brigadier Fernando was immune from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 authorized 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 on 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 on 7th May 2019.

On 3rd May 2019, the Defence again made an application to vacate the trial on 7th May 2019 claiming that the Crown Prosecution Service (CPS) has contacted and indicated that the prosecutors are reviewing the materials intending to take over the case. As a result, the case was adjourned for 6th August 2019. Disappointingly, the case was again adjourned due to the delay in disclosure.

Despite the Defence’s consistent attempts to frustrate the proceedings by repeatedly applying for adjournments, the Westminster Magistrates Court has finally listed the case for a summary trial on 18th October 2019. The victims eagerly wait for the hearing to proceed with no further adjournments as this case had been dragged for too long, and they still wait for the justice to be done.

At the last hearing, it was concerning that some individuals close to the Sri Lankan High Commission were present at the hearing and involved in filming the prosecutors, witnesses and protesters in an attempt to intimidate them or persecute them later using the footages. 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 severely warned all those present that it is illegal to take photographs or film anyone involved in this case either inside or outside the Court building. (The International Centre for Prevention and Prosecution of Genocide)

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