The scapegoats for the “Death Island” Koh Tao murders had a very small but very welcome win against the National Crime Agency in the High Court in London – but what is the significance?
On Tuesday, 29 August 2017 the High Court in London made orders by the consent of the parties in The Queen on the application of Zaw Lin & Wai Phyo v National Crime Agency.
The National Crime Agency (“NCA”) conceded that it had breached the law on five occasions and settled the action by consent having agreed to pay the Claimants’ costs fixed at 15,000 pounds.
Below is the Reprieve statement in full:
“The National Crime Agency has been forced to admit that it acted illegally in assisting Thai police investigate, arrest and convict two young Burmese men sentenced to death for the murder of British backpackers Hannah Witheridge and David Miller.
“The admission by the NCA in a High Court settlement, raises new doubts over whether the 2015 convictions of Zaw Lin and Wai Phyo are safe and it leaves open the possibility that the real killers could still be at large while innocent men await their execution. The two men were forced to take legal action, supported by Reprieve, after the agency refused to admit its full role in their conviction.
“Phone metadata provided by the NCA was presented at trial to bolster a prosecution case marred by widespread allegations of corruption, incompetence and fabricated evidence. In the UK legal proceedings, it came to light that the NCA had also secretly shared other data with the prosecution – data which pointed to other suspects and would have supported the defence case, but which was never disclosed to the defence team.
“This one-sided provision of assistance in a death penalty case goes against the policy set out in the Overseas Security and Justice Assistance Guidance which requires government agencies to seek approval at the highest ministerial level in cases where assistance given to another country could result in human rights abuses or a death sentence.”
Commenting, Maya Foa, Director of Reprieve said:
“It is bad enough that the National Crime Agency secretly handed over evidence to help secure death sentences in a country known for unfair trials and torture. But they now admit they did this illegally, without any proper thought that their actions could contribute to a grave miscarriage of justice with two men now facing execution. UK cooperation with foreign police and security forces should be open and transparent. Government agencies shouldn’t have to be dragged through the courts for the public to know what is being done with their money.”
Two aspects of NCA’s conduct that were unethical
FIRSTLY, the NCA’s provision of information and intelligence to the corrupt Thai police assisted them to secure convictions that attracted death sentences. That flew in the face of British Government policy.
Some readers will be strongly against the death penalty. Some will be in favour of the death penalty. My own position is that I am against the death penalty. My position is not based on religious grounds. It is partially based on moral grounds and the damage that executions inflict on those left behind. One of the worst aspects of the irreversible death penalty is that it is sometimes applied by notoriously fallible human beings on people who were innocent. In my opinion, there also seems to be something of a correlation between the more fallible justice systems and those that include the death penalty as a punishment.
Regardless of one’s own views of the death penalty, the NCA should absolutely not have undermined British Government policy.
SECONDLY, the NCA shared information and intelligence with the Thai police and withheld that information and intelligence from the defence. That might seem unremarkable to non-lawyers (including far too many journalists) but it sends alarm bells ringing in the minds of lawyers who understand what is required for a fair trial and lawyers’ duties to the court and the accused.
The problem is that Thai police and Thai prosecutors play by very different rules to those that apply to their counterparts in countries such as Britain or Australia. The rules that the Thais play by are often extremely unfair for the accused.
In Thailand the accused person often does not know the case that he had to answer. The accused often faces trial by ambush. He might be unable to prepare properly because he did not know what evidence would be adduced against him.
In addition, in Thailand if the police have evidence that would assist the accused (ie evidence that someone else committed the relevant crime or evidence that the accused’s alibi has been verified) they do not share that with the accused.
A more conspicuous problem is that the Thais often extract confessions from innocent people under torture. Guilty people might well confess under torture but innocent people will also “confess” to crimes they did not commit when subjected to torture. Torture by authority figures in Thailand is a scourge. It is common knowledge in the Kingdom that army recruits are sometimes killed by their superiors and even school children are flogged mercilessly.
A further problem is that Thai police often face credible accusations that they planted evidence in order to secure unsafe convictions.
Sometimes Thai courts accept hearsay evidence and sometimes they do not. In July 2015 I sat through a trial in the Phuket Provincial Court where a Royal Thai Navy captain gave evidence of another person’s translation of some English words. The captain did not speak English. The other person did not give evidence in the witness box and therefore could not be cross-examined but, nevertheless, the court accepted this hearsay evidence. In contrast, during the Koh Tao murder trial, the Samui Provincial Court rejected evidence from Andy Hall on gait analysis on the basis that it was “hearsay” and therefore inadmissible.
It should be stressed that the real culprits in putting the Burmese scapegoats through an unfair trial are the Thai police. Nevertheless, the NCA played an important part in stacking the odds against the two young accused men, who were without any criminal record.
It matters not that the NCA asserts that it handed over evidence to the Thai police “in good faith” and “in the shared interest of apprehending those responsible”. The NCA knew or should have known that the Thai police would cherry pick the evidence and only lead that evidence that helped the case against the Burmese men. The NCA knew or should have known that the Thai police had little interest in apprehending the real killers and rapists. The NCA knew or should have known that the Thai police were motivated by a desire to protect the lucrative tourism industry. The NCA knew or should have known that the Thai police, especially on Koh Tao, work for the benefit of the influential local mafia.
It is open for any reasonable person to draw the inference that the NCA was simply motivated by a desire to maintain a good relationship with the Royal Thai Police in order to secure their co-operation in the global fight against crimes such as drug trafficking and terrorism. The NCA might have reasoned that the lives of two Burmese scapegoats and the memories of some young British backpackers were a small sacrifice for the greater good. The NCA might further reason that the ongoing dangers for other British tourists such as Luke Miller might be acceptable.
Meanwhile the body count on Death Island aka Koh Tao keeps rising.
What is the significance of the Consent Orders for the Burmese scapegoats?
The very small but very welcome victory might be too little too late.
However, one would imagine that a victory however small must be of some comfort for the men on death row.
One consolation that can be taken from the consent orders is that they further highlight how unfairly the accused men have been treated.
One group of people, comprising a multitude of reasonable observers concluded long ago that the Thai authorities simply used the Burmese men as scapegoats. A second group, a significant number of observers, who have been less analytical of information that is publicly available, believe the Burmese men are guilty. A third group are relatively confused and undecided on whether they believe the Burmese men are guilty or not. Upon reading that the Thai police did not disclose relevant information to the defence, some of those in the third group will probably be inclined to suspect more strongly that that the Burmese men are in fact not guilty.
The consent orders will arguably earn the condemned men more international support but it is unclear how much practical benefit they will receive, if any.
Defects in reasoning of those who believe the Burmese men are guilty
Unfortunately, we are all creatures of emotion rather than logic. Often when a person makes up his mind about the truth or falsity of a statement it can be notoriously difficult for them to be persuaded that they are incorrect, even when some compelling new information or reasoning is available.
As Mark Twain observed: “It’s easier fool people than to convince them they have been fooled.” That is as true today as it was in Mark Twain’s time and the Thai authorities have considerable practice in fooling people.
Unfortunately, the three people who have been most conspicuously fooled by the Thai police and by the NCA are the parents of David Miller and his brother Michael Miller. It is extremely unfortunate because they have not only suffered a tremendous loss, they have been used to promote the myth that it was the two tiny Burmese men who miraculously overpowered and killed the much larger David Miller - and not a group of Thai thugs. It is unfortunate that so many lazy journalists, particularly British journalists, have elected to quote the misguided opinions of the Miller family without questioning the basis upon which those opinions were formed.
In the closing paragraph the Jersey Police said: “Our officers have received invaluable guidance from the National Crime Agency and the Foreign and Commonwealth Office and we thank them for their assistance.”
Both the NCA and the FCO have a conflict of interest as they wish to enjoy continuing good relations with the Thai authorities. It can be dangerous to make assumptions and to base opinions upon false assumptions. The Millers should not simply assume that the NCA and the FCO will be honest with them as this would not be in the national interest. In my own opinion, the FCO has often neglected to provide adequate warnings to British tourists on the dangers Koh Tao presents.
So many people forgot that Police Lieutenant General Panya Mamen who was first in charge of the investigation identified Montriwat Toowichian (manager of the AC Bar) and his “nephew” Worat Toowichian (aka “Nomsod”) as prime suspects based on CCTV footage. Panya was promptly promoted and transferred and the CCTV footage vanished. That should have set alarm bells ringing in EVERYONE’S minds. Unfortunately, the bells stopped ringing for those who became distracted by unfolding events. Panya and the CCTV footage made no appearance at the trial, so the trial was hardly fair or transparent.
It is true that Nomsod came up with an alibi of being in Bangkok but one or two holes quickly appeared in that alibi. His alibi did warrant very thorough scrutiny by Thai investigative journalists but unfortunately in Thailand few people take up careers as investigative journalists.
The Millers appeared to have placed vastly undue weight on the defendants’ confessions - which confessions were almost certainly extracted under some torture, some threats and a promise that the defendants would only serve two years in prison if they co-operated. Michael Miller placed great emphasis on the word “recanted” in his infamous address to the media on the steps of the Samui Provincial Court, as if to infer that he disapproved of the retractions regardless of the circumstances.
The Thai police sought to persuade the world that the defendants’ DNA was a “100% match” to that found on Hannah’s body. They managed to persuade the court but most of the rest of the world remained unconvinced. The prosecution misled the court on the Thai police laboratory’s accreditation to conduct the testing. This should sound extremely loud alarm bells.
The testing, collection and analysis of the original mixed semen samples by the police laboratory were the subject of multiple failures to comply with ISO 17025. Nothing could be verified by the defence as, incredibly, the Thai police said that all the original material was used up, which constituted one of the many breaches of the standard. There should have been a chorus of alarm bells ringing for everyone, including the Miller family.
The Thai police failures did not end there. They had stated that cigarette butts found on the beach had DNA from the two people and from Hannah. They further stated that the DNA on the cigarette butt matched DNA from Hannah’s body. It seems the police were setting up an elaborate hoax.
Later when the Burmese men were identified and arrested it seemed that pieces of the jigsaw puzzle were fitting into place. The defendants had been smoking on the beach that night while playing the guitar and singing. However, the Thai police failed to produce these cigarette butts in court and that apparent web of lies fell apart like a house of cards when the bottom cards are removed. Even more alarm bells should be ringing!
Unfortunately, too many people were initially fooled by Thai police and it becomes difficult to convince them they were fooled. Once their minds were made it was as if they had earplugs that blocked the sound of all those alarm bells.
The trial completely failed to explain how Hannah and David were killed
It is painfully clear that the trial failed to get even close to the truth.
It was an extremely poor performance of smoke and mirrors by the Thai police and prosecutors. Once the confessions were retracted the Thai police were only left with their grossly defective DNA evidence and the circumstantial evidence concerning David’s mobile phone.
Only one of the two defendants should attract suspicion regarding the mobile phone and that is Wai Phyo. This is one of the reasons Wai Phyo and Zaw Lin needed completely separate legal teams. There was a real probability that the apparently single defence team had a conflict of interest in acting for both defendants. It is possible that the court would have heard more of the truth if Zaw Lin had been independently advised.
The defendants’ evidence was that they were not together the whole morning. It is possible that Wai Phyo witnessed important things in Zaw Lin’s absence. It is even possible that the real killers gave David’s mobile phone to Wai Phyo. It is also possible that the real killers took the guitar from Wai Phyo in Zaw Lin’s absence – contrary to the story advanced by the defendants. (NB. I note that the media and spokespersons for the defence team have almost always referred to a single defence team although one Facebook post from Andy Hall referred to Zaw Lin’s lawyer. I sought clarification from Andy Hall almost two months ago but he did not respond.) I
have written on this subject previously.
With respect to the defence team they might concede that they could have provided better defences had they: called the DNA expert Jane Taupin to give evidence; been better prepared especially about DNA evidence; and cross-examined the prosecution witnesses more thoroughly. I
wrote about this previously.
However, the worst failures at the trial belonged to the Thai police and prosecutors.
As mentioned above the Thai police withheld evidence from the defence team. In August 2017, during a discussion on their failure to provide the victims’ clothing for inspection by the defence, Jane Taupin asked “If not, why not?”
The question “If not why not?” should echo following every police failure.
Please explain why more CCTV footage wasn’t available? (including that from inside the AC Bar).
Please explain how David received all the sharp cut marks to the front of his body and face, apparently from a weapon other than a hoe.
Please explain why there are so many black stains over Hannah’s face and body – consistent with what might be made by fireworks or Thai fire dancer’s fuel.
Please explain how two tiny men overpowered the much larger David Miller and the larger Hannah Witheridge.
Please explain the police statements that damage to David’s arms indicate he had tried to fight off his attackers.
Please explain how the two tiny men apparently remained uninjured.
Please explain why you did not tell the court that the police laboratory did not hold the appropriate accreditation to conduct the DNA testing.
Please explain why the report entered into evidence was an unendorsed report.
At the end of the trial there were far more questions than answers. With the greatest respect to the court, there was certainly no compelling evidence upon which to convict the defendants of rape or murder.
I will close the discussion under this subheading with some insightful quotes from British freelance journalist, Andrew Drummond:
“I have attended enough trials in Thailand to never be surprised by a verdict and never surprised when the verdict flies in the face of what I have heard in court.” (Andrew Drummond, 10 February 2016)
“A lot of criticism has been levelled at the defence team in this trial since the guilty verdict was announced and Wai Phyo and Zaw Lin were sentenced to death.
“On this I can only make my own personal observation. In all the trials I have attended in Thailand I have never come out of any of them believing any lawyer has put in a good effort.
“It appears, and I am fearful of generalisation here, that Thais think in a totally different way – and certainly not laterally. There are always dozens of crucial questions I would have asked, which are not.
“And as for Thai laws and the application of it I do know Thai lawyers who have totally given up the profession or at least given up practicing criminal law because of the way justice is stacked up against defendants.” (Andrew Drummond, 4 March 2016)
Conclusion
The victory of Zaw Lin and Wai Phyo over the NCA is only a small victory.
Hopefully, it might prompt some journalists to exercise greater care in reporting matters of life and death. Hopefully, it might prompt some tourists to be more wary about Koh Tao as they gain a greater appreciation of how unfairly the Burmese men were treated.
Only time will tell whether this small victory will yield any practical benefits for the scapegoats on death row in the Bangkok Hilton.
Source: Op-ed, Ian Yarwood, September 3, 2017. Mr. Yarwood is an Australian lawyer based in Perth. Find him on
Twitter.
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