R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69

Relatives of 24 unarmed civilians killed by Scots Guards at Batang Kali, Malaya in December 1948 sought judicial review of the UK Government's refusal to hold a public inquiry. The Supreme Court dismissed the appeal, holding that neither article 2 ECHR, customary international law, nor common law judicial review required an inquiry.

Facts

On 11 and 12 December 1948, during the Malayan Emergency, a Scots Guards patrol shot dead 24 unarmed civilians in the village of Batang Kali in Selangor, then a British Protected State within the Federation of Malaya. The official account was that the deceased had been shot whilst attempting to escape from custody. This account was challenged from the outset and was investigated briefly by the Attorney General of the Federation, who concluded that a ‘bona fide mistake’ had been made.

In 1969-1970, several of the guardsmen who had been on the patrol gave sworn statements and made admissions under caution alleging that the killings were unlawful executions carried out on the orders of the sergeants in command. A Metropolitan Police investigation was begun but terminated in June 1970 following the change of government, on the advice of the new Attorney General that there was insufficient evidence for prosecution. DCS Williams, the lead investigator, recorded his view that the termination was a ‘political change of view’.

Further enquiries took place in the 1990s by the Royal Malaysian Police, but were inconclusive. A BBC documentary (‘In Cold Blood’) was broadcast in 1992 and a book, ‘Slaughter and Deception at Batang Kali’, was published in 2009. Petitions to the Queen and requests for a public inquiry were made by the appellants, who are relatives of the deceased. On 29 November 2010 and 4 November 2011, the Secretaries of State refused to hold an inquiry under section 1 of the Inquiries Act 2005. The appellants challenged that refusal by judicial review.

Issues

The court had to decide whether the respondents were required to hold a public inquiry (or other equivalent investigation) into the Killings, on any of three grounds:

• Whether article 2 of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998, imposed an obligation to investigate.
• Whether customary international law, through the common law, required such an investigation.
• Whether the respondents’ refusal to hold an inquiry was unlawful on ordinary common law judicial review principles (irrationality or, as urged, proportionality).

Prior to those issues, the court considered whether the UK had jurisdiction in respect of acts of the Scots Guards in Selangor in 1948.

Arguments

Appellants

The appellants (represented by Michael Fordham QC) argued that the Killings were unlawful, that previous investigations had been inadequate or politically curtailed, and that the UK had an enduring obligation to investigate. They contended: that the ‘critical date’ for the temporal reach of article 2 was the date the Convention came into force for the UK (1953), and that a genuine connection existed between the Killings and that date; that new evidence had emerged after 2000 which revived any investigative duty; that customary international law required investigation of suspected war crimes and should be incorporated into the common law; and that the refusal to hold an inquiry should be reviewed on the basis of proportionality, and was in any event Wednesbury unreasonable.

Respondents

The respondents argued: that the UK lacked jurisdiction in respect of acts of the Scots Guards in Selangor in 1948 because those acts were referable to the constitutional arrangements of the Federation or Selangor; that the article 2 claim was barred temporally because the Killings occurred long before the right of individual petition was accepted in 1966 and any duty was, in any event, out of time under section 7(5) of the Human Rights Act and article 35 of the Convention; that customary international law in 1948 imposed no such duty; and that the decision not to hold an inquiry was rational, lawful and within the discretion conferred by section 1 of the Inquiries Act 2005.

Judgment

Jurisdiction

Lord Mance (with whom the other Justices agreed on this issue) rejected the respondents’ jurisdictional argument. The Scots Guards remained His Majesty’s forces under United Kingdom command and were deployed in the interests of the United Kingdom. Their actions were attributable to the United Kingdom. The grant of Malayan independence in 1957 did not relieve the United Kingdom of any obligations it would otherwise have had in relation to alleged misconduct by its army prior to that date.

Article 2 ECHR

Lord Neuberger (with Lord Hughes) held that, although the procedural duty to investigate under article 2 is a ‘separate and autonomous duty’, the appellants’ claim failed under the framework set out by the Grand Chamber in Janowiec v Russia (2014) 58 EHRR 30. In particular, the ‘critical date’ for the genuine connection test was the date upon which the UK accepted the right of individual petition (14 January 1966), and the Killings occurred more than ten years before that date. The ‘Convention values’ exception could not extend to events predating the adoption of the Convention. Even if a duty had otherwise existed, the claim was brought out of time, no significantly new revelatory evidence having emerged after 1970 that could revive the duty.

Lady Hale dissented, considering that the critical date should be the date the Convention came into force in 1953 and that significant new material had recently come to light. Lord Kerr reached the same overall conclusion as Lord Neuberger but for somewhat different reasons, regarding the Strasbourg case law as not unequivocally supportive of either critical date.

Customary international law

The court held that in 1948 customary international law did not require formal public investigation of suspicious deaths even where they might amount to war crimes. Furthermore, even if such a duty now existed in customary international law, it should not be incorporated into the common law because Parliament has comprehensively legislated for inquiries and investigations into deaths through the Coroners and Justice Act 2009, the Inquiries Act 2005 and the Human Rights Act 1998. This conclusion was strongly supported by the reasoning of the majority in In re McKerr [2004] UKHL 12.

Common law review

The appellants argued that the time had come to replace the Wednesbury rationality standard with proportionality. The court declined to decide this constitutionally significant question with a five-Justice panel, but held that the appeal would fail on either standard. The respondents had given coherent and relevant reasons for refusing an inquiry, including the difficulty of establishing the truth at this remove, the limited practical lessons to be learned and the likely cost. The decision could not be characterised as irrational or disproportionate.

Lady Hale, dissenting on this ground, considered that the Secretaries of State had failed to take into account the full range of purposes and benefits of an inquiry and had reached a decision that no reasonable authority could reach.

Implications

The decision (by a majority of 4 to 1) confirms that, in cases of historic deaths occurring before the Convention came into force, the United Kingdom’s procedural duty under article 2 to investigate is tightly constrained by the temporal limits laid down in Janowiec. According to the majority reasoning, where the date on which the right of individual petition was accepted is later than the date the Convention came into force, that later date is the ‘critical date’ and the ten-year limit on the gap between the triggering event and that date applies strictly. The ‘Convention values’ exception does not extend back beyond the adoption of the Convention in 1950.

The judgment also confirms that customary international law will not be incorporated into the common law to impose a duty to investigate historic deaths where Parliament has occupied the field by statute. This significantly limits common law avenues for seeking inquiries into historical events.

The case is also significant for its discussion (though not decision) of whether proportionality should replace Wednesbury irrationality as the general standard of judicial review of executive decisions. The court left this question for a future case to be argued before a larger panel, observing that the issue has potentially profound constitutional implications.

On jurisdiction, Lord Mance’s reasoning will be of importance in future cases concerning historic acts of British armed forces in territories which were not part of the United Kingdom but where the British army was operating under United Kingdom command. The court rejected the proposition that succession by an independent state to powers formerly exercised by the United Kingdom releases the United Kingdom domestically from responsibility for the conduct of its own forces.

For the survivors and relatives, the decision means that no public inquiry will be held into events which the court itself recognised may well have involved unlawful killings. The Divisional Court, Court of Appeal and Supreme Court all acknowledged that the official UK Government account may not be correct and that the Killings may have been unlawful, but held that the legal system could not now compel a fresh inquiry.

Verdict: Appeal dismissed (by a majority, Lady Hale dissenting). The Supreme Court held that the respondents were not required, whether under article 2 of the European Convention on Human Rights, customary international law as incorporated into the common law, or common law judicial review principles, to hold a public inquiry into the Batang Kali killings of December 1948.

Source: R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69