The National Crime Agency secretly assisted the Royal Thai Police with a controversial murder investigation that put two Burmese migrants on death row despite government rules designed to stop British law enforcement contributing to capital punishment convictions overseas.
BuzzFeed News can reveal that mobile phone evidence handed over by officers from Britain’s elite crime-fighting force played a central part in the prosecution of Zaw Lin and Wai Phyo, who were sentenced to death on Christmas Eve for the murders of British backpackers David Miller and Hannah Witheridge in Koh Tao.
The Foreign Office has previously expressed grave concerns about allegations that the two Burmese men were forced to confess under torture and a spokesman said after the verdict that it "opposes the use of the death penalty in all circumstances and we have made this position clear to the Thai government”.
British police are prohibited from supplying evidence to foreign authorities who still use capital punishment without written assurances that suspects will not be sentenced to death — unless they have ministerial permission.
But sources close to the case and documents seen by BuzzFeed News have revealed that the National Crime Agency (NCA) passed on the information linking the Burmese suspects to the crime “verbally” without seeking any written assurances that it would not be used to sentence them to death, and the evidence became a crucial part of the prosecution. The two men, both 22, are appealing their death sentences and claim they were framed by the Thai police and coerced into confessing during severe beatings.
The revelation that the NCA helped the investigation without any human rights assurances will plunge the agency into further controversy weeks after BuzzFeed News revealed its systemic use of illegal search and seizure warrants in the UK and serious flaws in its system for detecting money laundering.
Both the Foreign Office and the Home Office refused to say whether ministers had given the NCA the green light to assist the Thai police without a death penalty assurance.
The murder of the two young British backpackers on the idyllic Koh Tao shoreline made international headlines in September 2014. Witheridge, 23, from Norfolk, had been raped before being beaten to death while Miller, 24, from Jersey, had been violently attacked and abandoned to drown in the shallow waters of the island’s shores. The murder weapon, a bloodstained hoe, was found nearby.
The shambolic handling of the investigation by the Thai police quickly sparked widespread consternation. Officers initially questioned British brothers James and Christopher Ware, who had spent time with the two victims in Koh Tao, but the pair were released after being cleared by DNA testing. Zaw Lin and Wai Phyo were arrested soon after and forced to conduct a bizarre re-enactment of the killings on the beach in front of the world’s media after the country’s premier declared he was certain they were guilty. Claims soon emerged that the two men had been severely mistreated in custody.
David Cameron was so troubled by the Thai investigation that he intervened in a face-to-face meeting with the country’s military ruler, General Prayuth Chan-ocha, and it was arranged that a team from the Metropolitan police would be sent in as observers.
The human rights risks in Koh Tao were deemed so high that the Met banned its officers from becoming actively involved in any aspect of the case because no death penalty assurance had been given.
However, the secret role that Britain’s elite crime-fighters, the NCA, played separately in the Thai investigation can now be revealed.
BuzzFeed News has established that the agency received an urgent request from the Thai police for the serial number of Miller’s missing iPhone days after the young backpackers were found dead.
The request put the NCA in a quandary. The government’s “Death Penalty Assistance Policy” for British law enforcement agencies dealing with foreign investigations states clearly that “written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty”.
Capital punishment is still used regularly in Thailand and human rights groups have repeatedly raised concerns that migrant workers in the country are persecuted by police. But officers at the NCA were concerned that other British holiday-makers were at risk with the killers still loose, and they feared that the quality of the crime-scene evidence would deteriorate quickly.
Government guidelines say that only in “exceptional circumstances where it is imperative that we act quickly to safeguard the integrity of evidence or protect British lives” can officers “deploy immediately without seeking assurances about the death penalty” — but only after consulting with ministers and the Home Office and Foreign Office.
The NCA deemed the situation time-critical and rapidly made the “exceptional” decision to retrieve the serial number for Miller’s phone and pass it on to Thai police verbally. Because of concerns about the use of capital punishment, they did so on the basis that it was for intelligence purposes only and not to be used to prosecute the two suspects. However, no written assurance was secured that it would not be used in court.
The serial number immediately became a critical piece of evidence. It proved that a smashed iPhone found on a property linked to the two Burmese migrants had belonged to Miller — thus linking the victim to the suspects.
The Thai police then made an official request to use the information in court, which the NCA refused in the absence of a death penalty assurance. But it was too late. The Thai police knew the iPhone belonged to Miller and they went ahead and used the information to secure the conviction of the Burmese pair.
The judgment handed down at the Koh Samui Provincial Court sentencing both defendants to death on Christmas Eve 2015 shows that Miller’s iPhone was a central plank of the prosecution case.
Translations of the trial documents show the court was told that Miller’s smashed phone had been found at a property belonging to a friend of the Burmese bar workers. Wai Phyo said he had found the phone near the murder scene and taken it to his friend’s house, leaving it there to be charged as he did not know the password. When he learned of the murders, the friend had tried to destroy the phone but police later found the smashed handset in his backyard.
Andy Hall, a British human rights campaigner who worked on the defence in Thailand, said that there were questions over how the phone evidence was gathered. He said that "when the phone was discovered by the police behind the accused friend's house, suspiciously no photos were taken of the collection process" and that "the description of the phone found and the one presented in court could be interpreted as not matching".
But prosecutors told the court that the phone belonged to Miller and the location of the bodies meant it was impossible that the phone had been found where the defendants claimed. This helped, along with DNA evidence collected from cigarette butts, a condom, and the bodies of the victims, to convict the migrant workers beyond “reasonable doubt”, according to the judgment.
Lawyers representing the pair said DNA samples from the alleged murder weapon – a garden hoe – did not match that of the two men, and Thailand’s leading forensic scientist told the court that the evidence had been so badly mishandled that it was worthless.
The prosecution case had also rested heavily on sperm samples collected from the crime scene, but when the defence asked to have the DNA independently tested Thai police officers failed to hand it over.
The defendants’ lawyers claimed that their initial confessions were a result of torture. They said the two Burmese workers were framed and severely mistreated in custody as part of the “systematic abuse” of migrants on Koh Tao. A re-enactment of the murders in which the defendants were paraded in front of the media was “staged under threat of violence”, the lawyers said.
Wai Phyo told the court that Thai police officers had severely beaten him and taken photos of him naked. “They also kicked me in the back, punched me, and slapped me, threatened to chop off my arms and legs, and throw my body into the sea to feed the fish,” he testified. “They also said they would take me into another room and electrocute me.”
Human rights groups reacted furiously to the judgment, with Amnesty International calling for a retrial and an independent investigation into the torture allegations, while Human Rights Watch described the verdict as “profoundly disturbing” and Reprieve said it was “deeply alarming” that the two men had been sentenced to death “as without a fair trial serious doubts over their guilt will remain”.
But the families of the victims welcomed the verdicts and defended the handling of the case by the Thai police. Miller’s family said in a statement outside the court that the police investigation “was not the so-called shambles it was made out to be” and “the evidence against Wai Phyo and Zaw Lin is absolutely overwhelming”.
The NCA refused to comment on the Thai murder investigation. But it said in a statement that: “In fast-moving investigations, potentially involving threats to life, it is not uncommon for intelligence to be shared verbally, with a record of the information shared being retained by the NCA.”
The statement continued: “The NCA monitors human rights concerns closely, having regard to the FCO’s Overseas Security and Justice Assistance Guidance when sharing intelligence. We expect investigations and trials to be conducted in a fair and transparent way, in line with international standards.
“Neither the NCA nor the British Government can interfere in another state's criminal or judicial processes, just as other governments are unable to interfere in our own processes.”
The Home Office, which oversees requests for assistance from foreign police forces, refused to comment on whether the NCA had asked for permission to hand over evidence about Miller’s phone. The Foreign Office also declined to confirm whether it had been told about the specific evidence request, but said: “Ministers have been regularly updated on the Koh Tao murder cases since Hannah and David’s deaths in September 2014, including on key liaison between UK law enforcement and the Thai authorities.”
Zaw Lin and Wai Phyo are applying to Thailand’s court of appeal to overturn their death sentences.