Published On: 19th March 2021
In the exercise of his functions?

The High Court has today handed down an extremely disappointing decision in the case of the former Sri Lankan defence attaché Brigadier Priyanka Fernando, who appealed against his conviction of breaching section 4A of the Public Order Act 1986 for making a cut-throat gesture towards peaceful protestors outside the Sri Lankan embassy.

The central issue considered in this appeal, heard in the High Court on 2 December 2020, was whether the actions of the appellant (Brigadier Fernando) were carried out in “the exercise of his functions” as a member of the Sri Lankan mission in London, and, accordingly, whether he has residual immunity from prosecution, after departure from the United Kingdom, by virtue of article 39(2) of the Vienna Convention on Diplomatic Relations.

Sir Julian Flaux C and Mrs Justice McGowan ruled:

“We consider that the acts in question in the present case were ones which were performed by the appellant in the exercise of his functions as a member of the mission and thus qua diplomat. They did not somehow lose that quality and become acts performed in a personal capacity merely because they were criminal. They remained acts performed by the appellant in the exercise of his functions as a member of the mission despite their criminality.

“…the Chief Magistrate was not right to determine that the actions the appellant performed, whilst he was a diplomat, were outside the functions of the mission and therefore not covered by residual immunity when the defendant faced trial. This appeal must be allowed.”

Mr Carter QC, acting for the Respondent, put to the court that Brigadier Fernando’s actions were performed in his personal capacity and outside the exercise of his functions.

The respondent, Majuran Sathananthan – one of the peaceful protestors from a Tamil community group who were threatened by Brigadier Fernando outside the Sri Lankan Embassy on 4 February 2018 – is now considering his legal options.