Public Interest Law Centre

public law | human rights | legal action

26Jan 2019

Statement from the Public Interest Law Centre on the latest developments in the private prosecution against Andige Priyanda Indunil Fernando

26th January 2019|

The Public Interest Law Centre acts for Mr Majuran Sathananthan in this private prosecution against Andige Priyanda Indunil Fernando (‘Brigadier Fernando’).

 The defendant, Mr. Andige Priyanka Indunil Fernando, [referred to throughout as ‘the Defendant’] is a Sri Lankan military official who, in the past, has carried out military operations during the civil war in Sri Lanka.[1]He was found guilty by Westminster Magistrates’ Court of offences under s.4A and s.5 Public Order Act 1986 on Monday 21 January 2019.

Background

In 2017, Brigadier Fernando was posted to the United Kingdom as the Sri Lankan High Commission’s Minister Counsellor (Defence).[2]On the 4thFebruary 2018, protestors (including the victims) went to the Sri Lankan Embassy in London, to protest against the Sri Lankan Government and their treatment of Tamils. The Defendant with other Embassy and Consular staff had gathered to celebrate Sri Lankan Independence Day.

The Defendant initially came outside the embassy and started filming the protestors using his mobile phone before returning to the Embassy. He then made ‘cut throat’ gestures towards the protestors. He repeatedly ran his forefinger across his throat while looking at the protestors causing them fear, alarm and distress. The video of him, in full military dress uniform, making the threat in front of the Sri Lankan High Commission went viral.[3]

An information was laid on 6 February 2018 and a summons issued by Westminster Magistrates Court on 22 February 2018. The summons were first served on 7 March 2018 to the Sri Lankan High Commission and to his home address in the UK; a fresh summons and the complete bundle of prosecution documents were served on 28 October 2018 to the Ministry of Defence and the Brigadier’s home address in Sri Lanka  via an international process server. Following a Court order granting permission to serve documents through facebook, the summons and bundle were served directly to the Defendant through his personal Facebook account, and also by registered post.

At the trial listing on Monday, 21 January 2019, the Prosecution applied to proceed in the Defendant’s absence because he had failed to appear. The Court were satisfied that he had been given due notice and proceeded to hear evidence from Majuran Sathananthan, Golulakrishnan Narayanasamy, Palliya Guruge Vinoth Priyantha Perera, Sockalingam Yogalingam and Sabeshraj Sathiyamoorthy. The Bench then found the Defendant guilty of s.4A and s.5 PO Act 1986 offences.

The Magistrates issued a warrant for Brigadier Fernando’s arrest after finding him guilty of the charges so that he could be produced for sentencing if he were to return to the UK.

Recent Developments

Following the trial, Public Interest Law Centre was contacted by Westminster Magistrates’ Court and was informed that the arrest warrant had been withdrawn and the matter relisted on 1 February 2019. The Court did not relist the matter before withdrawing the arrest warrant.

The Court asked the UK Foreign and Commonwealth Office (FCO) to confirm whether the Brigadier enjoys immunity from prosecution.

After the 21stJanuary 2019 hearing, it has come to our attention, that the Sri Lankan Government acknowledged the proceedings in November 2018 and elected not to participate in the proceedings. A Sri Lankan Foreign Ministry spokesman, Saroja Sirisena, has also said publicly that the Sri Lankan Government had made submissions to the UK Foreign and Commonwealth Office (FCO) objecting to the ruling of the court. According to Mr Sirisena, the FCO then contacted the Westminster Magistrates Court regarding those objections.[4] It is unclear on what basis the FCO has sought to intervene in the judicial process.

In our view the trial was heard on 21 January 2019 and proceedings concluded. It appears that the Brigadier Fernando and the Sri Lankan Government had sought to frustrate proceedings by electing not to participate in the hearing.

As this has proven ineffective, the Sri Lankan Government are attempting to retrospectively make arguments that could have been made if a representative appeared before the Court  on 21 January 2019 or well in advance.

Immunity

Even if the Defendant had attempted to invoke immunity at the Trial, in our view he would not have been successful. Immunity cannot be invoked in order to defend a diplomat from all unlawful acts indefinitely. It is our view that Brigadier Fernando does not have the protection of diplomatic immunity for the following reasons.

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 in the Diplomatic Privileges Act 1964. It provides that immunity ends a reasonable time after the diplomat leaves their post (CPS practice provides for 31 days).

Immunity will onlybe maintained thereafter for any activities he carried out inthecourseofhisofficialduties. This is not unusual and proceedings have been successfully brought in the past against ex-diplomats.[5]

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 they also sent him back to Sri Lanka.[6]Brigadier Fernando is no longer listed on the 2019 London Diplomat List and therefore is no longer a diplomat in the UK.[7]He no longer comes under the protection of Article 31 of the Vienna Convention in respect of proceedings in England and Wales.

We note in a press release following the incident the Ministry of Foreign Affairs stated as follows:

‘Authorities in Sri Lanka have taken serious note of videos being circulated on social and web-based media of an alleged incident involving the Minister counsellor (Defence) attached to the Sri Lanka High Commission in London behaving in an offensive manner.

In this connection, instructions have been sent to Sri Lanka’s High Commissioner in London today, 6 February 2018, to suspend the Minister Counsellor (Defence) from work, with immediate effect. Authorities in Sri Lanka including the Sri Lanka Army will initiate inquiries on the incident immediately.’

Recent statements by the Sri Lankan Government spokesperson questioning the jurisdiction of the Court are at odds with the earlier commitment to deal with this serious incident.

Footnotes: 

[1]Journalists for Democracy in Sri Lanka and International Truth and Justice Project, “Brigadier Priyanka Fernando Defence Attache in London”, 5 February 2018 available at: http://www.itjpsl.com/assets/press/brigadier_api_fernando_final.pdf

[2]THE LONDON DIPLOMATIC LIST as of 6 October 2017, viewed at https://p10.secure.hostingprod.com/@spyblog.org.uk/ssl/ldl/London_Diplomatic_List_-_October_2017.htm

[3]Sri Lankan military official motions death threat to Tamils protesting in London, 4 February 2018, Tamil Guardian http://www.tamilguardian.com/content/sri-lankan-military-official-motions-death-threat-tamils-protesting-london

and available on YouTube at https://www.youtube.com/watch?v=fpWtUUzxgp8

[4]http://www.dailynews.lk/2019/01/24/local/175368/fco-informs-westminster-mc-sri-lanka-foreign-ministry%E2%80%99s-objections

[5]The Supreme Court held that diplomatic immunity ended when the Diplomat left their post and they could no longer enjoy immunity in an employment tribunal. Reyes and another v Al-Malki and another [2017] UKSC 61; The House of Lords considered the reasoning behind the end to diplomatic immunity in R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, sub nom R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (Amnesty International intervening) (No 3) [1999] 2 All ER 97, HL; and para 253.

[6]Brigadier Fernando is not listed on the 2019 London Diplomat List available at: https://www.gov.uk/government/publications/foreign-embassies-in-the-uk

[7]London Diplomat List 2019; https://www.gov.uk/government/publications/foreign-embassies-in-the-uk

22Jan 2019

Brigadier Fernando found guilty of breaching Public Order Act – warrant for arrest issued

22nd January 2019|

On Monday 22nd January 2019 ‘Brigadier Fernando’, a high-ranking Sri Lankan military official, was been found guilty of using threatening behaviour towards Tamil protesters outside the Sri Lankan embassy in London last February.

Brigadier Fernando – still smiling?

The Judge, at Westminster’s Magistrates Court, issued a warrant for Mr Fernando’s arrest. If he returns to the UK he is likely to be arrested on arrival as the police have now been made aware of the warrant.

Mr Andige Priyanka Induni Fernando, otherwise known as ‘Brigadier Fernando’ was taken to court following the emergence of a video taken during the country’s Independence Day celebrations in London. In the video, Mr Fernando is seen repeatedly running his forefinger across his throat whilst maintaining eye contact with the protestors.

Protestors who were present outside the Sri Lankan embassy last February, and who were the targets of Mr Fernando’s threats, were represented today by lawyers at the Public Interest Law Centre.

Mr Fernando was found guilty under Section 4A and Section 5 of the Public Order Act 1986. The protestors claimed that Mr. Fernando’s behaviour had been threatening and intended to cause harassment and alarm to the protestors.

The Sri Lankan government currently stands accused of war crimes against Tamil detainees, including summary execution by throat-slitting. Mr. Fernando, standing outside the Sri Lankan High Commission, appeared in full military dress whilst making the gestures.

Following the sentencing, at Westminster Magistrate’s Court, a spokesperson from PILC said that the Centre, on behalf of its clients, “Would now be appealing to the Home and Foreign Secretaries for reassurance that the UK will be taking steps to ensure full cooperation by the Sri Lankan authorities in returning Mr. Fernando to the UK for arrest.”

“This is a great result – the culture of impunity enjoyed by Sri Lankan officials has been challenged today. Mr Brigadier Fernando, part of a military force who has allegedly committed war crimes, will no longer be able to evade accountability for his actions here in the UK.”

PILC will be seeking clarification from the Foreign Office that they will take steps to contact the Sri Lankan government for the Brigadier to be returned to the UK.

20Jan 2019

Sri Lankan ‘war criminal’ to be brought to Court in private prosecution

20th January 2019|

On Monday 21st January 2019 a high-ranking Sri Lankan military official will face private prosecution at the Magistrates Court. Mr Andige Priyanka Induni Fernando, otherwise known as ‘Brigadier Fernando’, has been accused of running his fingers across his throat, at a public event, in order to threaten Tamil protestors. He will be prosecuted under the Public Order Act 1986, for using threatening behaviour and visible representations whereby the victim is likely to believe that such violence will be used.

In early 2018  protestors were gathered outside the Sri Lankan Embassy in London, protesting against the treatment of Tamils by the Sir Lankan Government. Embassy and Consular staff had gathered to celebrate Sri Lankan Independence Day. Brigadier Fernando was attending the celebrations.

Brigadier Fernando filmed protestors from outside the embassy before returning inside. He returned and made gestures towards the protestors, repeatedly running his forefinger across his throat whilst maintaining eye contact with the protestors.  The video of him, in full military dress uniform, doing this in front of the High Commission went viral.

The Public Interest Law Centre will take the case to Westminster Magistrates Court on 21 January 2019 on behalf of their clients who were attending the protests. Brigadier Fernando had looked directly at them whilst making the threatening gestures – after videoing them – causing them to fear the threats would be carried out against them.

The private prosecutors will rely upon the statements of witnesses present at the scene and upon a video recording which captures the behaviour of the defendant, who can be clearly seen to imitate the slitting of the throat.  This was clearly directed towards PILC’s clients and other protestors present at the scene and was intended to cause them fear of violence, alarm or distress.

As a report prepared by Journalists for Democracy in Sri Lanka & the International Truth & Justice Project noted:

“In a context where members of the Sri Lankan military have been accused of a wide range of war crimes including summary execution that in some instances involved the slitting of throats of bound Tamil detainees, the gesture was deliberate and intended to inspire fear. More so given that photographs of Tamil protests abroad are routinely the subject of questions during interrogations and torture in Sri Lanka itself.”

25Nov 2018

Update on our Sch.10 challenge – interim relief obtained 

25th November 2018|

The Public Interest Law Centre has sought a judicial review of the Home Office’s inadequate Schedule 10 policy.

Those with withdrawn asylum claims (among many others) fall between the cracks of available support under Section 4 or Section 95 and have been failed by the lack of policy or application procedure for accommodation under Sch 10.

This has resulted in prolonged destitution for those people who have been unable to apply for the support to which they are entitled.

Today in the High Court we secured interim accommodation and support relief for our client who is homeless until such time as his further submissions or the judicial review has been determined, whichever is earlier.

This claim not only seeks a final resolution to our client’s own support needs, but seeks to challenge the failure in the wider policy – WATCH THIS SPACE

16Nov 2018

New podcast from the Haldane Society of Socialist Lawyers

16th November 2018|

The Haldane Society of Socialist Lawyers for their debut episode podcast considered a leading case from the Public Interest Law Centre.

Episode 1: Deported for Sleeping Rough considers the Home Office’s unlawful policy of arresting rough sleeping EEA nationals, stealing their identity papers, and then either detaining and deporting them, or releasing them back onto the streets without papers so that they cannot obtain housing or employment.

The policy itself was declared unlawful in the case of R (on the application of Gureckis, Cielecki, and Perlinski) v Secretary of State for the Home Department, a case brought by Haldane Society members, and led by the Public Interest Law Centre.

Its repercussions are still being felt, with homeless charities – St Mungo’s, Thamesreach, and Change Grow Live – who helped the Home Office implement their unlawful policies, now under investigation for data protection breaches.

In addition, dozens of cases are being brought against the Home Office in order to pursue compensation for those who were detained and deported.

Listen to it here

15Nov 2018

New Public Interest Law Centre leaflet

15th November 2018|

So, the new leaflet is nearly ready to go.

Coming in December 2018, ready for the new year as part of the launch of the new name – the Public Interest Law Centre.

28Oct 2018

The launch of the Public Interest Law Centre in 2019

28th October 2018|

We are happy to announce that in the new year we will be changing our name to the Public Interest Law Centre.

Our change of name reflects the fact that we are developing from a small public law unit to a Law Centre with a large caseload alongside a range of projects, and have been able to grow our team and take on new and exciting challenges. We will remain an integral part of  Lambeth Law Centre and support its work as they support ours.

We will continue to work primarily in public law, whilst also bringing actions against public authorities. In the next period we hope to continue developing quality legal casework and cutting edge strategic litigation but always with a commitment to support campaigns and social justice activists.

We have made small but significant steps and we hope in the years to come they will become giant strides as we develop accessible, public interest strategic litigation for the community as a whole and the working class in particular.

Our Twitter account and website address will also change over the next period. Our web address to www.pilc.org.uk – and our twitter account will change from @_PILUNIT.

Watch this space.

16Oct 2018

Press release: SIGNIFICANT VICTORY against Southwark Council

16th October 2018|

Further to a successful legal challenge by the Public Interest Law Centre (PILU) and Housing Action Southwark and Lambeth (HASL), it has become apparent that Southwark Council have been incorrectly applying the ‘space standard’ test for statutory overcrowding as contained in s.326 of the Housing Act 1985.

Had Southwark applied the law correctly, it would have been recognised that the family in question were living in statutorily overcrowded conditions, and that in accordance with their allocation scheme they should have been placed in Band 1 and given an additional ‘Priority Star’ to reflect that status.

The evidence provided by HASL and as a result of a Freedom of Information Request suggests that the error in fact forms part of a wider unlawful practice.

Since December 2017, HASL have come across five cases where households have reported to Southwark that they are overcrowded according to the space standard for the number of people in the property and the number of rooms, that in each of these cases Southwark has proceeded to measure the size of the rooms and that in only one of the cases has the household been placed in Band 1 on Southwark’s allocation scheme.

The Council’s response to a Freedom of Information request showed that since February 2018, 46 banding decision had been made which had involved assessing whether a household was statutorily overcrowded, all of these cases had been assessed with reference to the space standard set out in s326 Housing Act 1985, and all had been assessed solely with reference to floor area as opposed to the number of rooms. 13 of those cases had been found not to be statutorily overcrowded.

Southwark Council have now admitted that the test for statutory overcrowding had been incorrectly applied the case in question, and while the Council have been reviewing previous decisions made on this basis, it is unclear whether everybody affected will notified and awarded the additional priority that they are entitled to.

Helen Mowatt, solicitor from PILU said:

Southwark Council has formally adopted the measure of overcrowding contained in Part 10 of the Housing Act 1985 within its allocation scheme and is required to properly apply this when allocating social housing. A failure to do so is a breach of the Housing Act and amounts to an unlawful failure to follow a published policy.

Southwark have been erroneously applying the space standard contained in s326(3) Housing Act 1985, by assessing overcrowding solely with reference to floor area and not also with reference to the number of rooms, as required.

The error in our client’s case is material. Had Southwark correctly applied the space standard, his household would have been deemed statutorily overcrowded months ago, they would have been placed in Band 1 of the allocation scheme and awarded an additional priority star.

This was also not an isolated error on the part of the Council. The evidence we have obtained from HASL and as a result of our Freedom of Information Request shows that Southwark have been consistently misapplying the law in every case. It is therefore likely that many households have wrongly been assessed as not being statutorily overcrowded and placed in the incorrect housing Band.

We know that there may have been as many as 13 cases since February 2018 which must now be reviewed, but we are unclear as to how many households may have been affected before this date. We will be seeking assurances from the Council that they will review all relevant cases, but if anyone thinks they may have been affected, please contact HASL and/or seek legal advice.

Elizabeth Wyatt from HASL has said:

Overcrowded housing in the private rented sector, but also in Southwark’s own council housing, is one of the main problems we come across in our group and is one of the more invisible sides of the housing crisis. We know many families forced to live in single rooms, studio flats and one bed flats because of discrimination and extortionate rents in the private rented sector. We know first hand the devastating impact that overcrowded housing has on people’s lives particularly their mental and physical health. We have been raising the problem of overcrowding with Southwark council for years but the council have failed to engage and take meaningful action.

Southwark council should be supporting their residents to access their housing rights and the secure council homes they need, instead it took a legal challenge before the council would accept that it had been wrongly denying that our families were statutorily overcrowded. Together with PILU, we will be making sure that the council goes back to review all previous decisions and applies the law correctly for all future cases. 

Southwark residents and all Londoners desperately need good quality, secure, 3, 4, 5 bed council homes in our communities. We welcome anyone struggling or worried about housing problems to get involved in our group to support each other and take collective action for good housing for everyone.” [ENDS]

For more information please contact Helen Mowatt at hmowatt@lambethlawcentre.org or Elizabeth Wyatt at elizabethwyatt1988@gmail.com

20Jul 2018

Save Southall Town Hall campaign – victory!

20th July 2018|

Friday 20th July 2018 was a big day for our client and the Save Southall Town Hall campaign. 

In the Royal Courts of Judge Martin McKenna ruled that the London Borough of Ealing had acted unlawfully in the way it sought to dispose of a community asset.

Judge Martin McKenna took under 40 minutes to summarise arguments presented by both sides and deliver his verdict.

He did NOT believe the arguments presented by Ealing Council or the scant evidence provided by them.

In agreeing with our submissions he stated that a sale cannot simply be conducted where the interests and the needs of the community are at stake, rather consideration must be had to whether to sell buildings for less than the highest price where, as in this case, the community are involved. The Ealing cabinet had failed in its legal duties to do this. He was also very critical of the equalities impact assessment that Ealing council and held that they had failed in their duties on this.

This decision is significant and it places councils on notice that they must have in mind working class communities and their community assets before rushing to sell to the highest bidder. It is certainly something that in future cases anti-austerity campaigners may find useful.

Make no mistake this ruling and important legal decision would not have been possible without the marvellous campaign waged by the people of Southall. In fighting the fire-sales that local authorities intend to make over the next period this decision will be an asset in countering those plans.  

Judge Martin McKenna quashed Ealing Council Cabinet decision to sell Southall Town Hall.

Ealing Council can appeal against the decision within 21 days but have little grounds for doing so, as they presented little or no relevant evidence at the hearing. Their barrister was unable to respond to the Judge, as he had no one from Ealing Council to instruct him on the matter.

Helen Mowatt and Paul Heron, lawyers from the Public Interest Law Centre were instructed in this case.

19Jul 2018

Undercover Policing – Judicial Review in Scotland

19th July 2018|

What is the Undercover Policing Inquiry?

In March 2015, Theresa May announced a Public Inquiry into undercover policing. This announcement followed revelations that undercover political policing was systematically used from 1968 to date, to spy on political campaigners. Scandalously the undercover officers often used the name of dead children to create their false identities.

These undercover political police operations were part of  of the ‘National Public Order Intelligence Unit’ (NPOIU) and/or the Metropolitan Police Service’s ‘Special Demonstration Squad’ (SDS). They deceived women into long-term intimate relationships and fathered children with them. They also befriended grieving families involved in seeking justice and have acted asagentsprovocateurs.

The undercover political police operations under scrutiny by the Inquiry arelimited to those conducted in England and Wales. This is despite the fact that much evidence has come to light demonstrating that undercover political policing operated in Scotland.

For all activists who may have been spied on in Scotland, the nature and extent of the undercover political policing falls outside the Inquiry’s remit which is limited to England and Wales. There is no Scottish inquiry.

Judicial Review:

 In September 2017, Edinburgh’s Court of Session the Public Interest Law Centre was granted permission on behalf of our client Tilly Gifford to proceed with a full Judicial Review – that is now due to take place on Thursday and Friday.

TillyGifford, an environmental justice campaigner and member of Plane Stupid, had been targeted by undercover officers in Scotland. In 2009, officers had attempted to recruit her as an informant. Referred to as an on-going “business arrangement”, Tilly was asked to betray her friends, beliefs and the communities in Scotland that she had been campaigning to protect. In the course of three meetings, police officers had indicated that they would give Tilly cash payments in exchange for information, and threatened her with prison should she fail to cooperate. Tilly recorded these exchanges and exposed the Police and their tactics in the media. The identities of these officers remain unknown, and it is unclear who had made the decision to target Tilly and on what basis.

As is the case for all activists who may have been spied on in Scotland, the answers to these questions fall outside the Inquiry’s remit which is limited to England and Wales. That is why this Judicial Review is so important. 

The Court of session in Glasgow is being asked to consider whether the following decisions are lawful:

  1. Is it right for the UK government not to extend the UCPI to Scotland? Is it right that it is limited to just England and Wales? and
  2. Is it right for the Scottish government to fail to call its own public inquiry into undercover policing north of the border?

We submit that the UK government must extend the UCPI into Scotland, or the Scottish government must order its own public inquiry into how political policing operated north of the border.

It’s now known there were at least 18 UK undercover active during the 2005 G8 Summit at Gleneagles. We know notorious undercover Mark Kennedy was active in Scotland, including maintaining relationships with those he’d targeted. Carlo Neri a SDS undercover, came to family events of the Scottish woman he had deceived into a relationship.

We also suspect that undercover political policing occurred at:

  • Faslane protests;
  • the Pollock Free State;
  • during the Miners strike;
  • the poll tax movement;and
  • the Timex dispute.

This list is in no way exhaustive.

The full hearing is due to be heard on the 19-20th July 2018 

8Jul 2018

Scottish Campaign Opposing Police Surveillance

8th July 2018|

The Public Interest Law Centre is bringing a case against the UK and Scottish government on behalf of our client Tilly Gifford. The Judicial Review action is due to take place on the 19th and 20th July 2018 at the Court of Session in Edinburgh.

Working closely with Scottish lawyers we seek to obtain judgment that quashes the decison by the UK government for its failure to extend the Undercover Policing Inquiry (UCPI) north of the border; and/or the Scottish government failure to call its own inquiry into undercover political policing.

On the back of that we supported the conference to support the Judicial review challenge. However, we see that the organising of the Scottish Campaign Opposing Police Surveillance (SCOPS) as a major break through in organising activists through the movement around the issue of police surveillance.

SCOPS has its first committee meeting – if you live north of the border get involved – e-mail at copsscotland@gmail.com

5Jul 2018

Legal Fight to Stop an Undercover Policing Inquiry Whitewash

5th July 2018|

The Undercover Policing Inquiry (UCPI) is at a crossroads – these are the words of Sir John Mitting – the Chairman of the Inquiry. On one level he is right, however as many Core Participants to the UCPI note, this is something he has caused.

As a result a number of Core Participants have come together to launch a Judicial Review. They need to raise £5,000 to cover the initial stages of the application. The challenge is centrally against the refusal to appoint a diverse panel to look at the issues of systematic institutionalised racism and sexism, and the invasion of human rights particularly of working class campaigners for social justice.  Can you help?

Core Participants want to properly participate in this Inquiry. They want it to succeed. They want it to be transparent and fair. They feel that there is no option but to issue a legal challenge now.

Please support the financial appeal – the  crowd justice page is here

An article about the issues involved can be found in the the Guardian from Rob Evans.

The challenge is supported by lawyers at Public Interest Law Centre and is being brought by Birnberg Peirce solicitors.