Britain’s premier crime-fighting force broke the law by secretly supplying evidence to Thai police that was used to sentence two Burmese bar workers to death for the murders of a pair of British backpackers, the High Court has ruled.
BuzzFeed News revealed in February 2016 that mobile phone evidence secretly handed over by officers from the National Crime Agency played a central part in the prosecution of Zaw Lin and Wai Phyo, who were sentenced to death by lethal injection on Christmas Eve 2015 for killing British backpackers David Miller and Hannah Witheridge in Koh Tao. British law enforcement officers are prohibited from supplying evidence to foreign authorities who still use capital punishment without written assurances that suspects will not be sentenced to death.
The NCA was forced to admit to secretly assisting the Thai police in a written response to a lawsuit brought by lawyers acting for Lin and Phyo, who claim they were wrongly convicted after being tortured into confessing to the murders. The agency confirmed that, as well as providing the phone evidence used in the conviction of the two bar workers, it gave Thai authorities intelligence on four other occasions, including allegations that before his death Miller had been involved in a row with people on Koh Phangan, a Thai island famed for its boisterous full moon parties and heaving bars.
The High Court has now ruled that the agency’s actions were unlawful, because they breached the government’s Overseas Security and Justice Assistance policy for British law enforcement agencies dealing with foreign investigations, which requires that “written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty”.
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”.
The slaying of the young travellers made international headlines when their bodies were found on island’s tropical shorelines in September 2014. Witheridge, 23, had been raped and beaten to death while Miller, 24, had been violently assaulted and left to drown in the sea. The murder weapon, a bloodstained hoe, was found nearby.
Lin and Phyo were soon arrested and forced to conduct a bizarre reenactment of the killings in front of assembled news teams from across the world. The shambolic proceedings of the case drew widespread consternation from human rights groups, and the Foreign Office condemned the handling of the investigation.
But BuzzFeed News uncovered evidence that the NCA had “verbally” passed phone evidence to Thai police without seeking any written assurances that it would not be used to sentence the two men to death. The information, a confirmation of the serial number of Miller’s iPhone, formed a central plank of the evidence used to convict the two Burmese men and led to their death sentence.
The NCA refused to comment on the Thai murder investigation in response to questions from BuzzFeed News last year, but said: “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.”
In response to the High Court ruling, the agency accepted in a statement that “the sharing of some intelligence with the Royal Thai Police in the immediate aftermath of the murders to assist their investigation was not in accordance with HM Government’s Overseas Security and Justice Assistance (OSJA) guidance” and said it had carried out a review of its internal processes. But it insisted that the evidence had been handed over “in good faith” and “in the shared interest of apprehending those responsible”.
This is not the first time the NCA has been forced to admit to significant failings. In November 2015, BuzzFeed News revealed that the NCA had been raiding properties and seizing evidence unlawfully for a decade due to systemic failings in the way it applied for warrants. MPs later told the agency’s then head, Keith Bristow, that criminals must be “rubbing their hands with glee” over the chaos at the law enforcement body. A subsequent internal inquiry by the agency found that almost 90% of warrants used by the NCA had been flawed.