UK judge withholds report from Thai death penalty defendants

Tuesday, August 25, 2015 

In a judgement released today Mr Justice Green, sitting in the High Court in London, spoke of his "very considerable unease" as he rejected an application by two defendants in a Thai death penalty case. The pair sought a Metropolitan Police report they hoped could assist their defence.

The murders occurred on the picturesque resort island of Koh Tao, pictured here from file.
Image: Wikivoyage.

The court has expedited the case. Burmese nationals Zaw Lin and Wai Phyo, both 22, are currently on trial accused of murdering David Miller, 24, from Jersey, and Hannah Witheridge, 23, from England. With the defence case due to begin shortly and continue until mid- or late September the court has issued its judgement today following a hearing on Friday.

The case dates to September last year when the victims were found murdered on a Koh Tao beach. Witheridge had been raped. The case attracted worldwide attention with Lin and Phyo confessing, before re-enacting the killing in front of the press.

The accused claim the confessions were tortured out of them and the ongoing trial is unfair. UK Prime Minister David Cameron intervened, speaking to Thai Prime Minister Prayut Chan-o-cha. Cameron and Chan-o-cha arranged for an observer team from the Metropolitan Police to conduct an inspection of the Thai probe, based on powers in the Police Act 1996.

A team was duly dispatched and prepared a report with the intent to use it for assisting the victims' families. UK police were expressly forbidden, at a ministerial level, to provide any assistance to Thai authorities as the case involves the death penalty. Due to established UK policy on foreign death penalty cases, the report was also not shared with Thailand. It is this report that Lin and Phyo were seeking.

The Royal Courts of Justice complex in London, where the case was heard.
Image: sjiong via Flickr.

Using the Data Protection Act 1998 the defendants asked police for this report to assist their defence, and were denied. That decision was the one challenged unsuccessfully in the High Court. The case pits the two accused trying to defend a death penalty case against the possibility of jeopardising international relations; Thai police co-operated, but only in light of an agreement the report would be confidential.

Legal charity Reprieve, who assisted the two men, said in a statement "Concerns about the conduct of the Thai investigation and the safety of any convictions resulting have been raised from the very beginning[...] only the defence lawyers in Thailand are in a position to judge whether the information could be of assistance." Mr Justice Green's judgement acknowledges he did not know "how the accused might structure their defences" or details about what evidence had been or would be involved.

Thai Prime Minister Chan-o-cha, pictured here in December, was directly involved in negotiations that led to the report being produced.
Image: D. Myles Cullen/U.S. Military.

Both men say they were starved, suffocated, stripped naked, exposed to cold temperatures, beaten, threatened, and denied legal representation. The Royal Thai Police deny any misconduct. Mr Justice Green read the report himself and decided not to release it as it was of no assistance to the pair.

The report is known to contain some material disputed by Lin and Phyo. It says they repeated their confessions at various times, including in court with legal representation, before retracting them. It also says they have not backed up their torture claims with evidence, medical or otherwise.

	This is not a Report which contains, for instance, state secrets
—Mr Justice Green

Mr Justice Green said the report described "in many respects [...] no more than the routine conduct of a serious crime investigation. This is not a Report which contains, for instance, state secrets." He also spoke of his distance from the ongoing trial, prompting him to remark of his "very considerable unease" and having to do "the best I could" — not "a comfortable process".

Noting "the issues of both law and fact are complex, novel and difficult" Mr Justice Green's judgement notes that, before even hearing the case he promised permission to appeal would be granted, if requested, whatever the outcome. He also promised a swift Court of Appeal hearing to comply with Thai trial time constraints. "The stakes are very high for both sides", he added.

"In my judgment the common law," the judgement reads, "and in particular the principles of natural justice and fairness, would in a case such as this which involves the right to life, and the right to a fair trial, as well as powerful countervailing issues of public interest, compel the court to apply the most intense level of anxious scrutiny to the facts to ensure that the accused were not prejudiced."

Mr Justice Green also ruled the pair, in principal, "have a perfectly proper right to seek access to the personal data for the purpose of using it subsequently in their defence in criminal proceedings", calling the case one about "fundamental rights".

Rosa Curling, who represented both men in the London court, has said they would not appeal. She said Lin and Phyo are "disappointed" but "are reassured that at least a British judge has now looked at the information held by the Metropolitan Police, applying anxious scrutiny, and determined that it would not assist them in their ongoing proceedings in Thailand."

Wikinews has contacted the Metropolitan Police, usually responsible for policing London, for a statement and is awaiting a response.

Sources

• Mr Justice Green. "Zaw Lin and Wai Phyo -v- Commissioner of Police for the Metropolis" — Judiciary of England and Wales, August 25, 2015
• "Thailand tourist murders: Accused men's bid to access Met report rejected" — British Telecom, August 25, 2015