Case Comment: Keyu & Ors v Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for Defence  UKSC 69 (Part 1)
19 Tuesday Jan 2016
This appeal concerns jurisdiction of the ECHR and common law protection in the context of a request for an inquiry into a mass shooting by British soldiers in a British Protectorate in 1948. In part 1 of this case comment we will discuss the background of the appeal and briefly reflect upon the result handed down by the Supreme Court.
Background of the case
The relevant events began in December 1948 when a Scots Guards patrol shot and killed 24 unarmed civilians in the village of Batang Kali in Selangor. At that time Selangor was a British Protected State in the Federation of Malaysia. The issue was whether the respondents were required to hold a public inquiry (or other similar investigation).
The decision not to hold such an inquiry was taken pursuant to the Inquiries Act 2005, section 1(1), which allows a minister a discretion to hold an inquiry where certain conditions are satisfied including “(a) particular events have caused, or are capable of causing, public concern” and “(b) there is public concern that particular events may have occurred”.
The facts were on any view shocking. In short, the British patrol, with limited training of operations of the kind, was sent into the village purportedly to ambush a party of insurgents. The party entered the village, took control and detained 50 adult villagers and some children. Men and women were separated. The villagers were not wearing uniforms, nor were they armed. They were detained overnight and interrogated and there were simulated executions. The following morning the hut with 23 men was unlocked by the patrol and within minutes all 23 were shot dead and the huts burned down.
The initial version of events from the Sergeant in charge was that 26 bandits had been shot and killed; a subsequent army report claimed that the bandits had been attempting a mass escape. The official version was not universally accepted and a brief investigation was carried out by the Attorney General of the Federation which concluded that the patrol had made a bona fides mistake and there had been nothing to justify criminal proceedings. However, in 1969 one of the patrol provided a sworn statement to a newspaper to effect that the men had been massacred in cold blood. Affidavits were taken from three other guardsmen to similar effect. In 1970 the DPP conducted an investigation which ultimately was halted on the basis that criminal proceedings would not be justified on the evidence so far gathered but without any evidence having been taken from the families involved in Selangor. Subsequently the BBC broadcast a documentary in 1992 entitled In Cold Blood based on a range of material including interviews with villagers and family members. The Ministry of Defence declined an invitation to participate. In 1993 the CPS decided it was pointless to re-open the investigation with a view to criminal proceedings on the basis of delay and abuse of process arguments. In 2008 a campaign group picked up the mantle calling for a public inquiry on behalf of family members. The respondents declined to do so and an application for judicial review was lodged.
The appellant family members of the victims contended that a public inquiry was required on three grounds: (1) under Art 2 ECHR which was extended to the Federation of Malaya on 23 October 1953; (2) under common law by virtue of its incorporation of principles of customary international law; and (3) under common law through the medium of judicial review. The claim was dismissed by the Administrative Court and Court of Appeal. A majority of the Supreme Court (Lady Hale dissenting) dismissed the appeal.
Discussion of the result
Before examining some of the legal issues in a bit more detail it is worth pausing to reflect on the result. First, although the appellants were unsuccessful in securing the relief sought in the claim, they may take some comfort in the detailed and public exposition of the facts by three levels of the High Court. Nor it is in a case in which the respondents are likely to feel that they have emerged victorious. Indeed, anyone reading the full account of the evidence and facts given in Lord Neuberger’s judgment may well form their own view as to the underlying rights and wrongs of the British actions in 1948. Secondly, and to the extent that claims for an inquiry into historic facts arise in the future relating to e.g. events having taken place in Northern Ireland in the 1970s, they will not for the reasons explained in the judgment be time barred in relation to jurisdiction. Thirdly, the case is a tribute to the importance of the ECHR in developing fundamental legal rights, and in particular in relation to public inquiries/investigations into deaths occurring in state custody. That it took until post 1998 for this claim to be treated as seriously as it has been done here is surely recognition of the significance of ECHR law and its influence too on the common law.