On Wednesday 3rd December 2020 the case of the former Sri Lankan defence attaché Brigadier Priyanka Fernando will be heard in the High Court.
On 4th February 2018 Brigadier Fernando was filmed threatening peaceful protestors outside the Sri Lankan Embassy by drawing his fingers across his neck in a cut-throat action. The gesture was directed against Tamil community groups protesting peacefully outside the embassy.
On 6th February 2018, a private prosecutor, whom we represent, laid information against the Brigadier before Westminster Magistrates’ Court. On 22nd March 2018, a summons was issued.
The defendant left his diplomatic post shortly afterwards and returned to Sri Lanka.
At a re-trial on 6th December 2019 Brigadier Fernando was convicted of public order offences in relation to the cut-throat gesture.
The Senior District Judge found that the defendant’s actions did not form part the exercise of his functions as a diplomatic agent and so fell outside the residual immunity provided by Article 39(2) of the Vienna Convention. The judge also found on the evidence of the witnesses that our client was alarmed by the gesture and that the Brigadier Fernando had intended to cause alarm.
The Brigadier’s legal representatives applied to have the matter ‘case stated’. This is a procedure by which a court can ask another court for its opinion on a point of law. The Senior District Judge in the Magistrates Court agreed to this on 10th March 2020. The Senior District Judge has phrased the question as such: was she right to find that the Brigadier enjoyed residual diplomatic immunity at the time of the trial?
The High Court will decide a number of issues relating to diplomatic immunity, the job of the Brigadier and the jurisdiction of the Magistrates’ Court.
During the hearings that took place at Westminster Magistrates’ Court, the Brigadier’s legal team attempted to invoke immunity. They were not successful. In our view, immunity cannot be invoked in order to defend a diplomat from all unlawful acts indefinitely. It is our view that Brigadier Fernando did not and does not have the protection of diplomatic immunity.
Article 39(2) of the Vienna Convention on Diplomatic Relations 1961 states that:
“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.”
This is incorporated into UK law by the Diplomatic Privileges Act 1964, which provides that immunity ends a reasonable time after the diplomat leaves their post.
Immunity will only be maintained thereafter for activities carried out in the course of official duties.
Immediately after the threats made by Brigadier Fernando, the Sri Lankan Government not only stripped him of his position (and therefore, we argue, of his immunity) but also sent him back to Sri Lanka. Brigadier Fernando is no longer listed on the 2019 or 2020 London Diplomat List and therefore is no longer a diplomat in the UK. He no longer comes under the protection of Article 31 of the Vienna Convention in respect of proceedings in England and Wales.
We therefore hope that the High Court upholds the original decision of Westminster Magistrates’ Court and finds the Brigadier guilty of breaching section 4A of the Public Order Act 1986. This would be a small but significant victory for our client.
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