New Judgment: Keyu & Ors v Secretary of State for Foreign and Commonwealth Affairs & Anor  UKSC 69
25 Wednesday Nov 2015
On appeal from:  EWCA Civ 312
The Supreme Court dismissed the appeal by a majority of 4:1 concerning the respondents’ decision to refuse a public or similar independent investigation into the killing on 11-12 December 1948 of 24 unarmed civilians by a patrol of Scots Guards in the village of Batang Kali.
The respondents rejected the call for an inquiry on the basis that the dispute over facts and the passage of time would create inevitable difficulties in establishing the truth. The appellants maintain that the respondents erred in the exercise of their discretion under the Inquiries Act 2005, s 1(1), or at common law, and failed to abide by their positive obligations to investigate the killings under the procedural limb of the ECHR, art 2, and/or customary international law, which obligations are enforceable under the Human Rights Act 1998 or at common law. The Divisional Court and the Court of Appeal had both dismissed the appellants’ challenge.
The court unanimously rejected the respondent’s jurisdiction argument in which they contended that as the Scots Guards were operating within the constitutional framework of Selangor and the Federation, their acts were not attributable to the UK government. The justices agreed that the Scots Guards were in the Federation in the service of His Majesty and in the interests of the UK. The powers of the British government in the Federation were not solely referable to the domestic arrangements in the Federation. Those who were killed were within the British army’s control at the time and therefore their actions were attributable to the UK Government.
In giving the lead judgment Lord Neuberger referred to the test founded in Janoweic v Russia (2013) 58 EHRR 792 for establishing when a case can be brought under the art 2 investigation duty if the deaths in question occurred prior to when the state in question signed up to the Convention or when it first gave the right to petition. That criterion is namely that (1) they can identify relevant “act or omissions” after the critical date relating to the deaths; and (2) that there is a “genuine connection” between the death and the critical date. Lord Neuberger was satisfied that the appellants had established the first criterion because there had been no prior full or public investigation of the killings, however he believed the present claim did not meet the “genuine connection” requirement as he followed the respondent’s contention that the critical date for the UK was 14 January 1966 because this was the first time the right to petition was recognised, rather than the 3 September 1953 when the Convention came into force in the UK. This would consequentially force this line of argument to be rejected because the rule cannot go back more than 10 years.
In regards to the proportionality issue, Lord Neuberger stated that it is impossible not to sympathise with the sentiments of the appellants but those understandable reasons for holding an inquiry do not justify a court holding that the respondents’ decision to refuse an inquiry was disproportionate. He reasoned that relevant members of the executive had given coherent and relevant reasons for not holding an inquiry, including expressing a justifiable concern that the truth may not be ascertainable, and a justifiable belief that there would be little useful that could be learned from an inquiry so far as current actions and policies were concerned.
In giving a dissenting judgment, Lady Hale stated that she would not have been prepared to reject the art 2 claim on the ground that the critical date was 1966 rather than 1953 as we do not have to slavishly follow the Strasbourg jurisprudence. She also agreed more with Lord Kerr that the material collectively provided by the publication of the book “Slaughter and Deception at Batang Kali” in June 2009 and the access gained to the Metropolitan and Royal Malaysian Police files “cast an entirely new light on the decision not to hold an inquiry”. However Lady Hale did come to the same eventual conclusion that the claims under art 2 would fail because it is difficult to say that there is a genuine connection between the obligations in the Convention and the triggering event, if that event took place before those obligations were given expression in the Convention and adopted by enough states to make it potentially binding in international law.
Lady Hale would have allowed the appeal under the Wednesbury challenge. She stated that the Secretary of State did not seriously consider the most cost-effective form which such an inquiry might take or the “bigger picture” in that it was in the public interest to properly inquire about events of this magnitude and the importance of setting the record straight as well as providing truth to the relatives and survivors, Harrison v UK applied.
To watching the hearing please visit: Supreme Court website