A former Sri Lankan defence attaché to the U.K., who faced private prosecution over a “throat-cutting gestures” made to Tamil protesters outside the country’s London Embassy, is to face a new trial in May, after the judge decided the case needed to be re-tried following a technicality.
It came after a previous hearing at which the judge had concluded that while the attaché, Brigadier Priyankara Fernando, was covered by diplomatic immunity on the day of the incident, he was no longer a diplomat and as the role he was carrying out didn’t count as an “act performed in the exercise of his functions”, he no longer had diplomatic immunity.
“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 part of the mission’s function,” concluded Chief Magistrate Emma Arbuthnot of Westminster Magistrates Court, in a hearing earlier this year. However, at a hearing on Friday, it was decided that the case should be reheard on May 7, after it emerged the court had failed to notify the private prosecutors and the defence team of documents that had been forwarded to it relating to notification given to Britain’s Foreign and Commonwealth Office around the case.
The alleged incident occurred on February 4, 2018 (Sri Lanka’s independence day) when Tamil protesters gathered outside the nation’s Embassy in London, some waving Tamil Eelam flags, some carrying placards calling for the release of political prisoners in Sri Lanka. It is alleged that during this time, Brigadier Fernando, a former member of the Sri Lankan Army’s 59 division which was involved in many of the frontline battles with the LTTE made three “throat cutting gestures” towards the protesters while dressed in military uniform.
After complaints were made across London police stations, the police got involved, and MPs raised the issue in Parliament and the Brigadier was suspended. While the U.K. government insisted it took the case “very seriously”, the Brigadier left the U.K. last year without charge. However, a private prosecution has been mounted by three men involved in the protest and in January, the Brigadier was convicted — in his absence — of public order offences.
However, an arrest warrant was issued and hastily withdrawn amid questions of his status as a diplomat. Then the judge concluded that because the act didn’t count as one performed in his exercise of functions as a diplomat, he no longer enjoyed diplomatic protection for it. Campaigners had expressed concerns about some of the facts to emerge during the course of the case – including details of the Brigadier’s job description which involved monitoring anti-Sri Lankan activities in the U.K. and reporting on them, which some Tamil campaigners have labelled a “witch-hunt”.
“For my client it’s a very important case,” says Paul Heron, one of the private prosecutors from the Public Interest Law Unit. “They feel that they have escaped from the extremely difficult situation in Sri Lanka, particularly in the Tamil area, and come to one of the oldest democracies to feel safe and secure and they feel it important that no matter who you are — a diplomat or a cleaner — you have to abide by law.”