A High Court judge has spoken of ‘very considerable unease’ in ruling that two men facing the death penalty for the murder of two Britons in Thailand should not have access to a British police report into their case.

In Zaw Lin and Wai Phyo v Commissioner of Police for the Metropolis Mr Justice Green denied an application under the Data Protection Act 1998 by two Burmese nationals on trial in Thailand. The two are accused of the murder in 2014 of tourists David Miller and Hannah Witheridge and face the death penalty if convicted.

The accused men say that confessions they had given to the Thai police were obtained through torture. 

At the prime minister’s request, the Metropolitan Police produced a report on the case to brief the victims’ families. Under the government’s policy not to assist foreign authorities in death penalty cases, the judgment says that the Met’s engagement was limited to ‘observing and recording the investigation’ by Thai police.

A precondition for Thai cooperation was that the report be kept confidential.

However the claimants sought access under the Data Protection Act to information relating to them, saying it might be of of use to their defence. The police refused on public interest grounds.

The judge said that under the act he had to balance the interests of the police against those of the claimants. While overriding confidentiality could have ‘a very serious adverse effect’ upon international cooperation by police forces, the claimants submitted that these considerations cannot prevail in death penalty cases.

Ruling that the public interest arguments of the police were ‘strong’, the judge said: ‘The disclosure of even a small portion of the report would have a serious chilling effect because even a minor release could be seen by foreign counterparties as reflecting a more systemic risk that the ability to enter into confidentiality arrangements would be subject to override by the courts.’

Disclosure might also risk undermining the criminal proceedings in Thailand, he said.

In any case he said ‘there is nothing in the personal data which would be of any real value to the claimants’. Thus the police arguments suffice to outweigh the claimants’ otherwise strong interest in access.

However Green noted that: ‘In coming to this end result I nonetheless feel very considerable unease.’ He said that he did not have direct knowledge of the way evidence has been tendered in the trial or how the accused might structure their defences.

‘I have had to work these out for myself. This has not been a comfortable process.’