High Court dismisses Data Protection Act application in Thai death penalty case

The High Court has refused the disclosure of a confidential Metropolitan Police report into the murders of two British tourists in Thailand.

The claimants in the case of Zaw Lin and Wai Phyo v Commissioner of Police for the Metropolis are Burmese nationals currently on trial for the 2014 murders of British backpackers David Miller and Hannah Witheridge.

The two accused, Zaw Lin and Wai Phyo, claim their confessions given to the Thai police were obtained through torture. The prosecution is seeking the death penalty.

Due to misgivings arising from media speculation, the prime minister, David Cameron, asked Scotland Yard to send a team to Thailand to examine the police investigation. However, because it is UK policy not to assist foreign authorities in death penalty cases, the engagement was limited to observing and recording the investigation into the murders by the Royal Thai Police.

Upon completion, the final report has been kept confidential, a precondition for the Thai police agreeing to cooperate. The report was, however, used to brief the families of the victims.

The claimants sought access to the report under the Data Protection Act 1998 under the belief that information relating to them might be of use to their defence. Scotland Yard, though, refused access to the report on public interest grounds.

Scotland Yard argued it was entitled to refuse access, as confidentiality is a hallmark of international cooperation between police forces. It also argued that the ability of the police to enter into future international cooperative ventures would be compromised if the High Court was to order the disclosure.

The claimants, however, submitted that such considerations should not prevail in a death penalty case.

Highlighting that the issues of both law and fact arising from the case were 'highly novel and difficult', Mr Justice Green nevertheless refused the application for disclosure of the report.

In a lengthy judgment, the High Court judge found there was nothing in the report that would assist the claimants in their defences.

'Under the Data Protection Act I have had to balance the interests of the police against those of the accused,' he said. 'I have also decided that, in principle, the public interest arguments of the police are strong. On the facts of this case and applying an intense proportionality test, the arguments and interests of the police outweigh those of the claimants.'

Drug-related offences account for just under half of capital convictions in Thailand, while convictions for murder make up the rest of death row, which currently stands at approximately 650 prisoners. Lethal injection is the sole method of execution in Thailand.

John van der Luit-Drummond is deputy editor for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD