For your information (the sender I removed their name for anonymity reasons but they consented to my sharing the email substance widely), below is a very interesting emailed legal and justice based analysis I received roundly condemning the UK Foreign and Commonwealth Office (FCO) for its role in facilitating the release of public statements by the victims family in Koh Tao case on Friday evening. I received this email today and found it very thought provoking so wanted to share it on my FB page for get more feedback and opinions! I personally remain confused on: (1) the actual meaning of the statements; (2) reference to an independent UK investigation on the case and; (3) the means by which the FCO facilitated the release of these statements and what FCO role was on advising/authorising/editing (or even writing in some way, I assume not the latter however) these statements - I.e. Is the dissemination of the statements justified by FCO in interests of the victims family, to bring clarity (not sure they did that) or could the statements in any way be seen to prejudice the right to a fair trial of the accused? I draw no conclusions yet so welcome discussion and thoughts ------ Begin forwarded message: From: XXX (name removed) Date: 7 December 2014 14:38:29 GMT+7 To: Andy Hall Subject: Statements Released by Hannah and Davids families through the FCO Hi Andy: I continue to applaud your work on behalf of the B2 and other Burmese migrant workers, and a big congrats on your initial victory in your own case. I saw your tweets about the statements just released by Hannah and Davids families, and understand you have to be publicly diplomatic and respect them, as well as the British govt. whose help you need at times. But I personally believe that the British government should be directly condemned for facilitating and allowing the release of these statements. For what its worth, here are my complete thoughts on why: The sincerity and suffering of Hannah and David’s family should be completely respected. But the British Foreign and Commonwealth Office (FCO) should be unequivocally condemned for allowing the statements of the two families (released on Dec. 6) to be released through its office and facilitated by its staff, or even released at all. In fact, the British Foreign Secretary, the British Ambassador to Thailand, and anyone else involved in the release of these statements should resign immediately, if not worse, for dereliction of duty and abuse and misuse of law. Regardless of whether the two accused Burmese men are guilty or innocent (or guilty in combination with others who have not been identified) . . . And regardless of whether their trial eventually turns out to be fair . . . There is nothing more prejudicial to a murder trial than public statements like those just made by Hannah and David’s families on the eve of arraignment and just before the trial. The statement of David Miller’s family said this: From what we have seen, the suspects have a difficult case to answer. The evidence against them appears to be powerful and convincing. In a murder trial, the defendants do not have to answer anything unless and until the prosecution has proved its case beyond a reasonable doubt. So this statement is saying that the Miller’s believe the Thai police have already done so. Can you imagine if in the UK the family of a murder victim was given access to a large amount of publicly unavailable evidence by the police, and then allowed to publicly state, in effect, that in their opinion the accused is guilty beyond a reasonable doubt before the trial even begins? Not only would this be illegal, but the police would be roundly and deservedly criticized and possibly even prosecuted for allowing it to happen. And it may then be deemed impossible for a fair trial to occur at all. Even the statement made by Hannah’s family, which on its face is much more innocuous, is highly prejudicial. The family said: We would like to stress that as a family we are confident in the work that has been carried out into these atrocious crimes. As a practical matter this statement provides almost complete cover for an investigation that the defense is sure to challenge as a key part of its case. In fact, the statements of David and Hannah’s families in combination have effectively inoculated the police, prosecutor, and judge from any criticism that the investigation, prosecution and trial of the accused Burmese men are unfair. The “qualifiers” in the families’ statements, which say in effect the public should wait and see all the evidence produced in a fair trial, do not have any practical meaning once the previous statements that the evidence is powerful and convincing, and expressing “confidence” in the investigation, have been made. While it is very important to respect and support the feelings and wishes of the victims’ families, it is also important to recognize that their interests are not the only interests at stake. The people and residents of Thailand have a direct public safety interest in making sure that all of the killers are apprehended and prosecuted, and also have an interest in having a fair and just judicial system. Of course the accused also have an interest in a fair trial. In a fair trial, the defense will be able to (i) vigorously challenge the methods of investigation and evidence collection, (ii) produce its own witnesses, (iii) receive fair rulings on the introduction of evidence by both prosecution and defense, (iv) receive all of the evidence in the hands of the police and prosecutor (both inculpatory and exculpatory) well before trial, etc. etc. Before the statements of the victims’ families were released on Dec. 6, one of the best assurances that the trial and verdict of the two accused Burmese men would be fair was the international spotlight that has been shown on this case. But now, after these statements by the victims’ families, any criticism of the methods of investigation or fairness of the trial proceedings can be easily deflected by the authorities (which the Thai police have already done). The authorities can simply say, in essence, that “if it was good enough for the victim’s families, it must be fair and just”. And this basically gives them carte blanche to do as they please at trial. Of course the defense can still raise objections, and outside observers can complain if there is any unfairness, but in reality it will have no impact now that the families have publicly blessed the proceedings and, in the Miller’s case, said in effect that they think the two accused men are guilty. In addition, if there are witnesses that would help the defense, why would any now come forward after the victim’s families have said this? The British FCO has also abused and misused the UK law requiring an investigation of a death overseas if requested by the victim’s family. They have done so in a manner that both highly prejudices the accused men’s right to a fair trial, making their actions entirely at odds with the purpose of the law, and have set a dangerous precedent for foreign cases that directly conflicts with what the law is on UK soil. Ordinarily in the UK, a victim’s family would not be shown all of the evidence that Hannah and David’s family were shown---they would have to wait for the trial just like everyone else. And in any event, in a UK proceeding they would not be allowed to speak about the trial until it was completed. This case is unusual because under British law the families were allowed to request an investigation and receive a large amount of information and evidence because the deaths occurred overseas. But it is an abject abuse and misuse of that law to provide the families with an extensive amount of non-public information and then allow them to issue public comments, facilitated directly by the FCO, about what they’ve seen in any way that is prejudicial to the fair administration of justice. This is exactly what has happened in this case. Hannah and David’s families are not to blame. The British government and FCO are to blame. And they should be condemned in the strongest terms, and those responsible removed from office, for extreme dereliction of duty and abuse and misuse of law in a manner that in all likelihood condemned two men to death before a trial even takes place. Finally, it is ironic that the British government has stated previously that they cannot do anything that “interferes” with the Thai judicial process. By facilitating and allowing the release of the statements by Hannah and David’s families, they have directly interfered in a death penalty case in a manner highly prejudicial to the accused. This harms not only the accused. It also harms the Thai people, other Burmese migrants, etc. who would benefit from complete assurances of a fair trial in this case, because pressure to hold a fair trial in the current case could have a positive impact on the reform of the Thai judicial system in the future—every small step forward towards a fair judicial system matters greatly to Thai residents. Now, instead of sending the message that “we will be watching” and “this is what we expect a fair trial to include”, the British government has sent a message that “we’re satisfied” even before the trial has begun. This is an absolute travesty and the British FCO is directly responsible. On another related note: Thailand is a party to the International Covenant on Civil and Political Rights, which includes provisions for a right to a fair trial (See Article 14), and the country is legally bound by its provisions. https://treaties.un....668-English.pdf ccprcentr.../G0443072en.pdf Thailand must follow the provisions of this Covenant the same way that Britain and Myanmar are bound by the provisions of the Vienna Convention on Consular Relations. The fair trial provisions of the ICCPR have been interpreted on many occasions by courts and international organizations. Here are two reports detailing interpretations of Article 14 of the ICCPR regarding fair trials. amnesty.o...300022014en.pdf This is Amnesty International’s fair trial handbook. https://humanrig.../fair_trial.pdf In all interpretations that I have seen, a fair trial under the ICCPR that Thailand is a party to absolutely requires that all evidence, including exculpatory evidence, be given to the accused well in advance of the trial. This includes interpretation by the UNHRC. ccprcentre.org/doc/ICCPR/General%20Comments/HRI.GEN.1.Rev.9%28Vol.I%29_%28GC13%29_en.pdf “Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is “adequate time” depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel.” Since Thailand is a party to this convention, it could be argued that the failure to provide the defese with all the relevant evidence obtained is illegal. In any event, a conviction obtained in a trial that does not include the basic elements of fairness cannot be relied upon to have convicted the guilty party and could easily result in an innocent person going to jail or being executed (and the real killers remaining free to kill again) . . . that is why these provisions exist. Despite the public statements by the victims’ families, I hope that many qualified independent observers will be closely watching the trial of the B2 and using the ICCPR and its interpretations as a scorecard to determine if the trial was fair. I don’t have a voice that they will listen to, but I think that Amnesty International, the UNHCR, etc. should be directly asked if they will have observers attending the trial, following its proceedings and issuing a report on whether it was fair or not. If they say they will not, they should explain why. This is important not only for the sake of Hannah and Davids family and justice, but also for Thailand and the Thai people who deserve these standards to be followed in all criminal cases. Very unfortunately, I think the statements just released may have a practical impact on whether international observers closely follow the trial
Posted on: Sun, 07 Dec 2014 09:46:53 +0000
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