Monthly Archives: August 2015

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High Court Denies Disclosure for Thai Death Penalty Case

ConfidentialityA high court judge has ruled that a UK police report should not be made available for a case in Thailand that could result in two Burmese nationals receiving the death penalty. Mr Justice Green described his “very considerable unease” in passing this judgement, but reached the decision on the basis of the UK government’s policy of not assisting overseas authorities with death penalty cases.

The two men on trial are accused of murdering two British tourists, Hannah Witheridge and David Miller, last year. They confessed their alleged involvement in the murders to Thai police, but have since claimed that they only made these confessions as a result of being subjected to torture.

The Metropolitan Police, acting on a request from the Prime Minister, examined the case and produced a report. This report was intended to be used for briefing the families of the victims rather than as an investigatory tool.

Nonetheless, the defendants requested access to the report. They requested that they be provided with information pertaining to themselves under the Data Protection Act, as well as seeking access on the grounds that the report could prove useful to their defence.

The police denied the two men access on the grounds of public interest, and the application made its way to the High Court in the case of Zaw Lin and Wai Phyo v Commissioner of Police for the Metropolis, where Mr Justice Green passed judgement upholding the police’s refusal to release the report.

One of the conditions under which Thailand cooperated with the report was a strict agreement that the report be kept confidential. Furthermore, the judgement points out that the Metropolitan Police’s involvement with the case was not an investigatory one, but rather limited to “observing and recording the investigation” which was being carried out by their Thai counterparts.

Green described how the case required careful balancing of the interests of both police and claimants, with valid and important considerations on both sides. The claimants submitted that the report could potentially have a real bearing on their defence, and the fact that the case carried a possible death penalty should override many other considerations. The police, meanwhile, claimed that going against confidentiality agreements could have “a very serious adverse effect” upon the way that police forces work together across national borders.

Ultimately the judge ruled that “there is nothing in the personal data which would be of any real value to the claimants,” and that this meant that the interests of the police outweighed those of the claimants in this situation. Nonetheless, he described his unease in reaching the judgement, especially as he was required to work out for himself how the defence might be structured and evidence tendered in order to accurately gauge how useful the document would be. “This has not been a comfortable process,” he said.

Representing Clients from Out of the Country- 3 Common Situations

Let’s say you are practicing law in Australia. As you know, there are more people who are not from Australia than those who were born there. Being a large and beautiful nation/continent, with diverse flora and fauna, not to mention cultural attractions, places like this have a tremendous number of tourists showing up on their shores. Tourists are notoriously unaware of local laws and customs, at least that’s what the stereotype would have us believe. As such, they frequently work themselves into pickles with the law, meaning that you might one day find yourself representing the legal interests of someone who lives overseas.

So, if you get contacted after a worried tourist finds your contact information after Googling “criminal lawyers in Sydney”, don’t be shocked. It happens everyday, but representing someone from out the country presents its own unique challenges. Being in touch with multiple lawyers and studying this phenomenon as a hobby of my own, here are three of the most common issues I see.

  • Time. Because many of these individuals do not reside in the nation where they are standing trial, they need to get away to take care of things back home. This can present a challenge. Depending on the severity of the charge, they may be restricted in their movement across the country, as flight risk is a serious concern. Depending on the severity of the infraction, this may not be a consideration, but the defendant’s responsibilities back home certainly are. As such, the process may be permitted to be expedited. In fact, this is what I would recommend for anyone representing such a client. Get it over with as fast as possible, try to reduce it to a fine, do what you can to get the client’s life back to normal as soon as possible.
  • Money. International exchange of currency may present a difficulty when representing a foreign client. In general, I try to recommend my clients the cheapest possible currency transfer services, but sometimes there simply isn’t money to spare. In situations like this, there may be remuneration on the part of the state, or a situation which allows your client to more or less go free, pending specific action.
  • Language Barrier. In addition to ignorance of local law and custom, your client may not speak the local language. This may present a difficulty, but it may help your client to be able to get home without too much trouble also. If it can be argued to your judge that a client and the wronged party would be better served to let the client return home, then this is a desirable outcome. If the case must be brought to trial, then necessary translation services must be obtained, and the defendant made aware of his or her rights and the details of the case.

Travelers get in trouble overseas all the time, but this doesn’t mean that they shouldn’t be well-represented. Acquaint yourself with the details of their situation, and you and they should be able to move beyond the present trial without too much trouble.