The incident which forms the basis of the charges against Brigadier Fernando occurred on 4th February 2018 when Brigadier Fernando was filmed, whilst on duty in his military uniform, making repeated cutthroat gestures to the protestors who were conducting a peaceful demonstration outside the Sri Lankan High Commission in London.
The victims felt intimidated by these threats and brought a Private Prosecution against Brigadier Fernando claiming the Police had let them down by saying he has diplomatic immunity and therefore cannot be arrested.
The International Centre for Prevention and Prosecution of Genocide (ICPPG) assisted the victims to bring the private prosecutors with the legal representations of the Public Interest Law Centre (PILC).
As Brigadier Fernando chose to ignore the summons issued by the Westminster Magistrates Court, the Court was left with no option to proceed in his absence. Accordingly, the firsttrial took place in absentia on Monday, 21st January 2019 and he was found guilty of two charges under the Public Order Act (sections 4a and 5).
He was convicted of intending to and causing harassment, alarm and distress with his gestures, which were made after he had taken photos and videoed Tamil protestors. The panel of three British Judges, headed by the Chief Magistrate Ms Sonia Henley, who carefully considered the evidence, found Brigadier Priyanka Fernando guilty and issued an Arrest Warrant, without bail.
However, the warrant was subsequently withdrawn following the intervention of the British Foreign and Commonwealth Office (FCO) who raised an issue upon the pressure of the Sri Lankan government, as to whether Brigadier Fernando was immune from prosecution for the offences due to diplomatic immunity.
Accordingly, this was listed for further hearing to consider the issue of immunity.
On 1st February 2019, at Westminster Magistrates Court, before the Chief Magistrate Emma Arbuthnot, Counsel for Brigadier Fernando argued that the Brigadier’s actions were covered by indefinite immunity as they were within his official duties to monitor any anti Sri Lankan activities or LTTE activities and report them to the Sri Lankan High Commission and to prepare appropriate strategies to safeguard the High Commission.
In support, the Defence relied on a “Job Description Document” issued by the Sri Lankan High Commission to Brigadier Fernando which provides that the Brigadier was officially authorized by the Sri Lankan Government to “Monitor any anti-Sri Lankan activities in the UK and report to the High Commissioner and through her to the Intelligent Agencies in Sri Lanka”.
However, the Defence argument was rejected by the Chief Magistrate at a hearing on 1st March 2019. At a hearing on 15th March 2019, the Defence argued that there had been procedural mistakes in the case which meant that the conviction was invalid.
The Chief Magistrate agreed, quashed the conviction and ordered a retrial on 7th May 2019. On 3rd May 2019, the Defence again made an application to vacate the trial on 7th May 2019 claiming that the Crown Prosecution Service (CPS) has contacted and indicated that the prosecutors are reviewing the materials intending to take over the case. As a result, the case was adjourned for 6th August 2019. The case was again adjourned due to the delay in disclosure.
The Westminster Magistrates Court later listed the case for a summary trial on 18th October 2019.