Brigadier Fernando : A Case For Racially Aggravated Common Assault

By Together Against Genocide (TAG), Friday, February 16 2018
This briefing note outlines the case for the commission of racially aggravated common assault by Brigadier Fernando on 4th February 2018.
TAG has seen footage from the day in which Fernando gestured to cut the throats of those protesting outside the Sri Lankan Embassy in London. This footage is publicly available and may be viewed here
In concise terms, by making this motion towards the predominately Tamil group, Fernando intended to make them apprehend the immediate infliction of decapitation. This amounts to racially aggravated common assault. As a consequence, we ask the authorities to open an investigation into this incident and initiate proceedings against Fernando.
A person commits common assault when they: “intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.”[1] Accordingly, there are two components to this offence: (1) the physical act which makes another apprehend the immediate infliction of unlawful violence (the actus reus); and (2) the mental desire to commit that physical act (the mens rea). 
Actus Reus
Fernando satisfied the physical elements of common assault: his actions made others apprehend the immediate infliction of decapitation. This is three reasons.
First, gesturing to cut the throats of the protestors is a prima facie threat of decapitation. This is plainly the infliction of unlawful force. Although Fernando did not say anything, silence can amount to an assault.[2]
Secondly, the protestors apprehended that threat. Anyone of a reasonable firmness, with an understanding of the Sri Lankan military, would take that threat with a great deal of certainty. Fernando had been taking photos of the crowds prior to making the gesture. Therefore, the military has records of those protesting. Since the protestors (and their families) can be targeted and subjected to violence, the threat made by Fernando is very real and very credible. TAG has also spoken to some of the protesters and it is clear that they took the threat very seriously.[3]
Moreover, the Sri Lankan military has historically cut the throats of its Tamil prisoners.[4] The United Nations in its OISL Report concluded that there are “reasonable grounds to believe the Sri Lankan security forces and paramilitary groups associated to them were implicated in unlawful killings carried out in a widespread manner against civilians and other protected persons.”[5] It further concluded that evidence of this nature, if tried before a court, could amount to a crime against humanity.[6] 
Therefore, it is perfectly plausible for the crowds to consider this threat to be very real. It was made by a senior official of an authority internationally recognised to use torture and violence against its targets.
Finally, this threat is immediate. It is accepted that Fernando would not have been able to decapitate the crowds during that very instant. However, the English courts have been very liberal in their interpretation of immediacy. As put by Smith and Hogan’s Criminal Law, the question is whether Fernando intended to cause the crowds to believe that he can and will carry out the threat immediately and whether the crowds did so believe.[7] This is answered in the affirmative. Fernando would not have made a threat that he did not intend to pursue, especially against a crowd of Tamil protestors. Some protestors, in their account to TAG, believed that Fernando was willing and ready to inflict violence upon them.[8]
It is reminded that the threat was made by GOSL’s military attaché to the UK. Accordingly, his responsibility is to monitor security threats within the Tamil diaspora, which extends to the identification of activists. As he has a photo log of those attending the protest, he is able to report the identities of the protestors to GOSL who can then pursue them.
Therefore, not only is the threat of violence against the crowds very real, it is also very immediate for the purposes of the offence.
Consequently, it is submitted that there are reasonable grounds for establishing the physical elements of common assault.
Mens Rea
With respect to the mental element, the intention to make the protestors apprehend decapitation is self-evident. One cannot gesture to cut another’s throat without intending for the other to believe that they would be subjected to violence. Nevertheless, if Fernando denies such an intention, he was being reckless in any event.
It is trite to assume that the crowds gathered outside the Sri Lankan Embassy were members of the Tamil community. They were speaking in Tamil and they were holding LTTE and Tamil solidarity banners. As Fernando (a member of the Sinhala majority) directed his gesture to Tamil people, it is further submitted that the common assault was racially aggravated, within the meaning of sections 28 and 29 of the Crime and Disorder Act 1998.
Hate crimes, including racially aggravate common assault, are identified by the CPS using the following standard:
“Any incident/crime which is perceived by the victim or any other person to be motivated by hostility or prejudiced based on a person’s race or perceived race.”[9]
TAG perceived the gesture to be motivated by Fernando’s hostility towards the Tamil race. Aside from the longstanding tension between the Sinhala and Tamil ethnicities, Fernando’s gesture was motivated by hostility towards the Tamil community in that:
  1. Fernando would not threaten to decapitate members of his own ethnicity;
  2. Tamil was the language spoken in the protest;
  3.  “Prabhakaran is our leader” was being chanted; and
  4. Banners were written in the Tamil language.
It should also be noted that some accounts have describe Fernando pointing towards the lion within the Sri Lankan flag. This is symbolic of hostility towards the Tamil minority. The lion and the maroon background represent the Sinhalese and their majority status respectively. By drawing attention to lion prior to making the gesture, Fernando was emphasising the majority’s dominance over the Tamil community. Therefore, the assault was clearly racially aggravated.
Fernando cannot rely on territorial sovereignty/integrity as defence to the charge. Whilst the footage is not particularly clear on his exact location in relation to the Embassy, this issue is irrelevant for the purposes of pursing a prosecution.  If the gesture was committed within the confines of the Embassy, the diplomatic status of the building would not defeat liability. Acts committed within embassies can still be tried and prosecuted under English Law. This is the position of the CPS. [10]
In the event that Fernando claims to possess diplomatic immunity, we ask the Diplomatic Protection Group of the Metropolitan Police (“DPG”) to request the immunity to be waived.
12 months’ is the custody threshold required by the CPS to pursue a waiver of immunity from the nation’s Head of Mission.[11] As racially aggravated common assault carries a sentence of up to 2 years’ imprisonment,[12] the DPG must seek a waiver from High Commissioner Wijewardene.
The siege of the Libyan Embassy in April 1984 has striking similarities to the present situation and, as such, should serve as precedent for the UK authorities.
Outside the Libyan People’s Bureau in London, crowds had gathered to protest against the Gaddafi regime. Shortly after 10.00 am, a sub-machine emerged from the window of the building and shot at the protestors, killing WPC Fletcher. The Metropolitan Police investigated the murder and found sufficient evidence to prosecute those involved.[13] The Libyan government also accepted responsibility for her death some years later.[14]
Fernando’s actions could have been committed within the territory of the Sri Lankan Embassy and GOSL has already condemned his actions.[15] Therefore the current situation bears some resemblance to 1984. As such, the Metropolitan Police must investigate this incident further and pursue of the prosecution of those involved.
Based on the evidence that has been gathered, there is a realistic prospect of convicting Fernando for racially aggravated common assault. The act is clearly triable within England and Wales and there are substantial grounds for waiving diplomatic immunity if it is raised.
Therefore, we ask the British Government to investigate this incident with a view to pursuing prosecution.
[1] R v Ireland (1997) 3 WLR 534
[2] Ibid
[3] Account to TAG
[5] OISL [1117]
[6] OISL [1130]
[7] 13th edn, page 622
[8] Account to TAG
[11] Ibid
[12] s 29 Crime and Disorder Act 1998