Michaelmas Term [2015] UKSC 69 On appeal from: [2014] EWCA Civ 312

JUDGMENT
Keyu and others (Appellants) v Secretary of State
for Foreign and Commonwealth Affairs and
another (Respondents)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Hughes
JUDGMENT GIVEN ON
25 November 2015
Heard on 22 and 23 April 2015
Appellants Respondents
Michael Fordham QC Jonathan Crow QC
Danny Friedman QC James Eadie QC
Zachary Douglas QC Jason Coppel QC
Marcus Pilgerstorfer
Amy Rogers
(Instructed by Bindmans
LLP
)
(Instructed by Government
Legal Department
)
Intervener (Attorney
General for North
ern
Ireland Written
Submissions Only)
Interveners (The Pat
Finucane Centre and
Rights Watch UK)
Ben Emmerson QC
Adam Straw
(Instructed by KRW Law
LLP
)
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LORD NEUBERGER: (with whom Lord Hughes agrees)
Introductory
1. The issue raised by this appeal is whether the respondents to this appeal, the
Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State
for Defence, are required to hold a public inquiry (or other similar investigation).
The inquiry which is sought would relate to a controversial series of events which
began on 11 and 12 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 Malaya, but it is now of course a
state within the independent federal constitutional monarchy of Malaysia.
2. The decision not to hold a public inquiry was taken by the respondents
pursuant to section 1(1) of the Inquiries Act 2005 (“the 2005 Act”). That section
provides that “[a] minister may cause an inquiry to be held … in relation to a case
where it appears to him that” 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”.
3. The appellants, who are closely related to one or more of the victims (and
some of whom were children in the village at the time), contend that the killings on
11/12 December 1948 (“the Killings”) amounted to unjustified murder, and that the
United Kingdom authorities have subsequently wrongly refused to hold a public
inquiry, and have sometimes deliberately kept back relevant evidence. The
appellants contend that a public inquiry is required on three different grounds. First
under article 2 of the European Convention on Human Rights (“the Convention”),
which came into force for the United Kingdom on 3 September 1953, and was
extended by the United Kingdom under article 56 of the Convention to the
Federation of Malaya on 23 October 1953; secondly under the common law by
virtue of its incorporation of principles of customary international law; and thirdly
under the common law through the medium of judicial review. These three grounds
each raise a number of issues, sometimes overlapping. However, there is also a
jurisdiction issue, given that the events in question occurred in what was then a
different jurisdiction and is now also a wholly independent state.
4. I will first set out the relevant facts, and after mentioning the jurisdiction
issue, I will deal with the three grounds raised by the appellants, taking them in the
order in which they have been just set out, which is the same order in which they
were raised by Mr Fordham QC in the course of his excellent written and oral
arguments on behalf of the appellants.
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The facts
Background
5. In the first half of the 20th century, the country which is now Malaysia was
part of the British Empire. In 1941, during the course of the Second World War, it
was invaded and occupied by the Japanese. It was subsequently re-taken by the
British in 1945, the year in which the Second World War ended.
6. Shortly thereafter, there was an insurgency, which became known as the
“Malayan Emergency”, and in which members of what had been the communist
Malayan People’s Anti-Japanese Army took a leading part. Several British planters
and businessmen were killed and there were violent incidents within a number of
states, including Selangor. In June 1948, the Colonial Secretary approved the use of
emergency powers in Malaya, and the High Commissioner declared a state of
emergency on 12 July 1948 for the entire Federation, and three days later he issued
Emergency Regulations.
7. United Kingdom ministers agreed to send a brigade of the British army to
Malaya by the end of August 1948. The cost was to be borne by the Treasury. Many
of the troops sent were national servicemen, with only limited training in relation to
operations of this kind. Part of the brigade comprised the Second Battalion of the
Scots Guards. They arrived in Singapore in October 1948 and after three weeks
training, and they were sent to areas of the Federation where “bandit activity” had
been reported. G Company of the Second Battalion was based at Kuala Kubu Bahru
where they underwent training for jungle warfare, apparently for the first time.
The events of 11 and 12 December 1948
8. Batang Kali is located approximately 45 miles northwest of Kuala Lumpur
in the district of Ulu Selangor. It was then a village consisting of families who
inhabited ‘kongsi’ residential huts, which are wooden longhouses raised from the
ground with a veranda entrance. The village was within a rubber plantation owned
by a Scotsman, Thomas Menzies, the chairman of the Selangor Estates’ Owners
Association, and most of the villagers worked on the estate.
9. G Company of the Second Battalion of the Scots Guards was based at Kuala
Kubu Bahru. The senior police officer for the district asked Captain Ramsey (the
second-in-command of the Company) to send patrols to two separate areas, to
ambush a party of insurgents expected to arrive the following day. Captain Ramsey
commanded one of the patrols, and Lance Sergeant Charles Douglas led the other
because there was no other available commissioned officer. Lance Sergeant Thomas
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Hughes was Douglas’s second in command, and the patrol included a Lance
Corporal and 11 guardsmen (almost all of whom were undertaking National
Service). A Malay Special Constable (Jaffar bin Taib) acted as a guide and they were
accompanied by two police officers, Detective Sergeant Gopal and Detective
Constable Woh.
10. Early in the evening of 11 December 1948, the patrol took control of the
village. Fifty adult villagers and some children, including two of the appellants, were
detained. The villagers, who were a range of ages, were not wearing uniforms and
had no weapons. The men were separated from the women and children by the
patrol. They were all detained in custody overnight in the kongsi huts. Interrogation
of the villagers then took place, and there were simulated executions to frighten
them, which caused trauma to some.
11. A young man was shot dead by the patrol in the village that evening, and he
has now been identified as Loh Kit Lin, the uncle of the second appellant.
12. During the interrogations, the police officers secured information from one
of the men, Cheung Hung, the first appellant’s father, about armed insurgents who
occasionally visited the village to obtain food supplies. This information was passed
to the patrol.
13. On the morning of 12 December, Lim Tian Sui, who was the ‘kepala’ (village
headman), and the father of the third appellant, arrived in the village by lorry, which
was searched and found to contain some rice. Lim Tian Sui was detained. The
women and children and one traumatised man were then ordered onto the lorry. It
was driven a little way from the kongsi huts. Those aboard were guarded by
members of the patrol before being driven away from the plantation.
14. The kongsi hut with 23 men was then unlocked by other members of the
patrol. Within minutes all 23 were shot dead by the patrol. The kongsi huts were
then burned down. The patrol then returned to its base.
The immediate aftermath
15. The first known document to describe the Killings was a confidential
telegram sent by the High Commissioner, to the Colonial Office on 13 December
1948. It stated that “26 bandits have been shot and killed by police and military in
the Kuala Kubu area of Selangor” and that one “bandit” had been wounded and
captured. Also on 13 December 1948, a journalist working for The Straits Times,
Harry Miller, drove to the Scots Guards base at Kuala Kubu Bahru. He interviewed
Sergeant Douglas who said that all those shot on 11 and 12 December 1948 had been
Page 5
trying to escape when about to be taken to the company’s base for interrogation. He
also said that “a large quantity of ammunition had been found under a mattress”.
This account was published in The Straits Times on 13 December 1948 and, four
days later, the General Officer Commanding Malaya, Major General Sir Charles
Boucher, stated at a press conference that this was an “extremely accurate”
description of what had occurred.
16. On 17 December 1948, a Far-Eastern Land Forces British Army Report on
relevant incidents was compiled setting out the actions that had been taken to combat
the insurgency. In relation to the incident in question it noted that a patrol had
“captured 26 male bandits” who had been “detained for a night in kongsi huts” and
that, following a successful ambush of a lorry, the “bandits attempted mass escape.
25 killed. One recaptured”. The official War Office report of 22 December 1948
repeated this summary, and referred to the event as a “very successful action”.
17. This official account was not universally accepted. The families of those
killed appealed for help to various organisations and the Chinese Consul-General
requested an inquiry, suggesting that the Killings were unjustified given that all the
deceased were unarmed. Claims appeared in the Chinese press that there had been a
massacre. On 22 December 1948, Mr Menzies stated publicly that all those killed
were his employees with records of good conduct, and that there had been no strikes
or other problems. On 24 December 1948, The Straits Times called for an inquiry.
18. Sir Stafford Foster-Sutton, the Attorney General of the Federation and a
Federal counsel, Mr Shields, then conducted an investigation, which seems to have
taken a matter of days. Although the file (together with many other files relating to
law and order issues during the Malayan Emergency) was destroyed in 1966, Sir
Stafford spoke about this inquiry in 1970 to the Metropolitan Police and to a BBC
news programme. He said that the inquiry originated as a result of public disquiet
and a complaint from the owner of the rubber estate where it occurred. Statements
(not on oath) had been taken from each member of the patrol which were given to
him by the police. No inquiries were made of inhabitants of the village “for a very
good reason, because they were most unlikely to talk and, if they did talk, to tell the
truth”. He had visited the scene, met the sergeants and the two detectives, examined
the burnt down huts and found shell-cases that had exploded during the fire and were
illegally there. He had been told by the sergeants that they believed that the men
they had arrested were bandits, and that, when those men had been taken for
interrogation, they had made a dash for it and the Guards then opened fire. After
cross-examining the sergeants and the police officers who had accompanied the
patrol, he said that he had been “absolutely satisfied a bona fide mistake had been
made”. Accordingly, he had been “satisfied of the bona fides of the patrol and there
had not been anything that would have justified criminal proceedings” and had
reported his findings to the High Commissioner.
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19. It seems that there were separate investigations by the police and the army,
although scant and contradictory information survives as regards the detail and the
extent of these undertakings. For instance, Sir Charles Boucher told the press on 5
January 1949 that he had instigated an investigation immediately after he heard
about the incident, but no details have been uncovered.
20. The only contemporaneous statements that have been found are from
Detective Sergeant Gopal, Detective Constable Chia Kam Woh, and two statements
from Cheung Hung. Officers Gopal and Woh indicated that Cheung Hung had told
them about visits by “bandits” in order to obtain food. Cheung Hung told the police
that this was common knowledge but the villagers were afraid to inform the
authorities. The officers stated that they separated Cheung Hung, and that they were
in the area of the store when the 23 men were shot. Cheung Hung, who has given
somewhat differing accounts over the years, indicated that he had been in a yam
patch at the time of the shooting. He had not seen any attempted escape but instead
the men were shot when they were being walked away from the huts.
21. Part of a telegram headed “Incident at Batang Kali” from the High
Commissioner, Sir Henry Gurney, to the Colonial Office dated 1 January 1949 has
survived. It stated that “the soldiers who had been posted with object of protecting
the clearing from external attack did everything that it was possible for them to do
to stop the escaping Chinese before resorting to force”. It also pointed out that:
“[W]hen persons are picked up by the security forces under
such circumstances until they are screened at headquarters it is
impossible for the security forces to know whether they may be
members of ‘killer squads’ or to what extent they are involved.
Furthermore although some of the killed were rubber tappers it
is our experience that such persons are frequently rubber
tappers part time and bandits the rest of the time and that their
arms are normally hidden in the neighbourhood and not found
with them. Moreover, we feel that it is most damaging to the
morale of the security forces to feel that every action of theirs,
after the event, is going to be examined with the most
meticulous care.”
22. A further document from the High Commission headed “Supplementary
Statement” was released to the local press on 3 January 1949, and published the
following day in The Straits Times, and The Times in London. After setting out some
background information, and explaining how some arms and ammunition had been
discovered in the village, it went on to say this:
“[Some] Chinese men found in the clearing were placed in a
room in one of the kongsi houses for the night, under guard.
Page 7
The following morning they were brought out of the room by
two sentries who were on the verandah of the kongsi house in
which the room was situated. The only other soldier in sight
was the sergeant in command who was standing on the ground
a little beyond the kongsi house, ready to receive the Chinese
as they came off the verandah.
When all the Chinese had reached the ground from the
verandah, one of them shouted and they thereupon split up into
three groups and made a dash for the three entrances to the
jungle. There is no doubt that they were under the impression
that the only troops that they had to compete with were the two
soldiers on the verandah of the kongsi house and the sergeant.
The attempted escape was obviously pre-arranged because
there was no hesitation in the formation of the three groups and
the shout was no doubt the pre-arranged signal for putting the
plan into effect.
The sergeant and the two soldiers on the verandah immediately
shouted calling upon them to halt. They could not use their
arms because to do so would have endangered the lives of their
comrades who were posted out of sight but in the line of fire.
The men in the three groups covering the entrances heard
shouting but did not know what was happening until they saw
the Chinese running through the bush and jungle past where
they were posted. They thereupon shouted the Malay word for
halt to which no attention was paid by the escaping Chinese.
The men of the three groups gave chase, continuing calling
upon them to halt and, as they failed to so, the soldiers opened
fire.”
23. At a press conference on 5 January 1949, Sir Alec Newboult, Chief Secretary
of the Federation of Malaya, said, “I have no doubt at all that these men made an
attempt to escape from legal custody, and having made that attempt they had to stand
the consequences”. He went on, “Let us be absolutely fair with the security forces.
The point at issue is that, in starting the attempt to escape, the men were warned and
continued to make their escape and the patrol opened fire”. Sir Charles Boucher
added: “I think the public should know that troops and police are trained never to
open fire unless it is necessary, but when they have to fire, the fire is always intended
to kill. It cannot be anything else”.
24. On 26 January 1949, the Colonial Secretary Mr Creech Jones gave a written
answer to a Parliamentary Question about the incident. This stated:
Page 8
“The Chinese in question were detained for interrogation under
powers conferred by the Emergency Regulations. An inquiry
into this incident was made by the civil authorities and, after
careful consideration of the evidence and a personal visit to the
place concerned, the Attorney General was satisfied that, had
the Security Forces not opened fire, the suspect Chinese would
have made good an attempt at escape which had been obviously
pre-arranged. A full statement was issued in Kuala Lumpur on
3 January.”
25. Demands were made for a public inquiry conducted by a High Court judge,
but they were rejected.
Events in 1969 and 1970
26. In late 1969, some 12 years after Malaysia achieved independence, one of the
Scots guardsmen, William Cootes, provided a sworn statement to the newspaper,
The People, which stated that the victims at Batang Kali had been massacred in cold
blood. Sworn affidavits were thereafter taken from three other guardsmen who were
part of the patrol that went to Batang Kali: Alan Tuppen, Robert Brownrigg and
Victor Remedios. They alleged that the deceased had been massacred on the orders
of the two sergeants on the patrol, and it was suggested by some of the deponents
that they had been ordered to give the false explanation that the victims had been
killed when trying to escape. A further guardsman, George Kydd (who did not
provide a written statement) told a reporter on The People that the Killings were
“sheer bloody murder […]. [T]hese people were shot down in cold blood. They were
not running away. There was no reason to shoot them”.
27. In the next few days, two of the soldiers, Alan Tuppen and Victor Remedios,
gave interviews on British national television and radio confirming an account of
unlawful killing. Sir Stafford Foster-Sutton was also interviewed on the BBC News.
All of the transcripts are available. Sir Stafford repeatedly described the killings as
“a bona fide mistake” and made it clear that “anyone who knew anything about it at
the time entirely agreed that it was a bona fide mistake”. Alan Tuppen confirmed
that in his own mind the killings were tantamount to murder.
28. For their part, Sergeant Douglas (by then a Regimental Sergeant Major) and
former Sergeant Hughes reiterated the account given in 1948 by Sergeant Douglas,
that all those shot on 11 and 12 December 1948 had been trying to escape when
about to be taken to the company’s base for interrogation. An official of the Ministry
of Defence was present when Sergeant Douglas was interviewed. He commented
that the interview was “absolutely fair and correct in all respects”.
Page 9
29. A reporter from The People then interviewed Cheung Hung who was still
living in Malaysia. He said that the troops had separated the women and children
from the men, divided the men – who did not attempt to escape – into groups and
shot them. The Straits Times interviewed one of the guides, Inche Jaffar bin Taib,
who said that, shortly before the Killings took place, a sergeant told him not to look
at the male detainees. After he had turned his back he heard a burst of gunfire, and
when he turned round he saw dead bodies everywhere. The sergeant told him that
he would be jailed if he breathed a word about what had happened.
30. The UK government issued a press statement indicating that it was taking the
matter very seriously. Internal memoranda noted that a three-year limitation period
prevented prosecutions under the Army Act 1861 but given the view was taken that
prosecutions in the civilian courts remained a possibility, a decision on whether to
institute criminal proceedings necessarily came before the government could resolve
whether to hold an inquiry.
31. The Director of Public Prosecutions, Sir Norman Skelhorn QC, received
advice on 27 February 1970 from a prosecution lawyer, with which he and the
Attorney General agreed, that the Metropolitan Police should investigate what had
occurred. It was proposed that this inquiry into the facts was to include interviewing
all the guardsmen, the police officers who accompanied the patrol, the interpreter
and the sole survivor. Sergeants Douglas and Hughes were to be interviewed last.
On 18 March 1970 the DPP informed the Ministry of Defence that he would extend
the inquiry beyond the United Kingdom if he considered this to be a necessary step.
On 13 April 1970 the Malaysian Government offered to assist the investigation.
32. Responsibility for the investigation was given to the Metropolitan Police, and
the lead officer, Detective Chief Superintendent Williams, contemplated taking two
months to interview the guardsmen in the United Kingdom before providing an
interim report to the DPP. If authority was given to pursue investigations in the Far
East, he envisaged needing six weeks to interview 36 witnesses in Malaysia. He also
had in mind the possibility of exhuming the bodies. The sergeants were to be
interviewed as the last stage before he submitted his report to the DPP. He expected
that the entire process would take approximately six months.
33. Four guardsmen, William Cootes, Alan Tuppen, Robert Brownrigg and
George Kydd, were interviewed under caution. They each admitted that Sergeant
Hughes had ordered them to shoot the men, who had not attempted to escape, as
suspected bandits or sympathisers. None of the guardsmen had taken the option that
was offered of not participating. A further guardsman (whose record of interview is
not available), Keith Wood, also admitted when interviewed that the men were
murdered. Victor Remedios did not answer the officer’s questions, but did not
withdraw his earlier admission of murder. Additionally, Robert Brownrigg and
Page 10
George Kydd said that they had been instructed by the army to provide the false
explanation that the men had been trying to run away.
34. Two lance corporals, George Porter and Roy Gorton, said that the men had
been shot whilst attempting to escape. The sergeants were not interviewed because
the inquiry was terminated. DCS Williams spoke to the two reporters and he was
critical of their methods, including the fact that William Cootes had been paid
£1,500 for his initial statement to The People, and the fact that it appeared that the
journalists may have given incorrect information concerning the possibility of a
prosecution.
35. Meanwhile, in the spring of 1970, the High Commissioner in Kuala Lumpur
and the Foreign and Commonwealth Office were expressing concern that the
Malaysian Government “may come under pressure to open their own inquiry or
press HMG”, that the investigation might “revive local feeling”, and cause “political
difficulties”. A letter of 19 May 1970 from the High Commission to the FCO
expressed the view that the presence and activities of an investigating team “would
be given close and embarrassing attention”. It was considered “extremely doubtful
if a villager’s recollections of an incident which happened 22 years ago could ever
be accurate, especially as the terrain has since changed beyond recognition”. The
letter went on to state that “We quite realise the political importance of allowing
justice to be seen to be done over Batang Kali, but it is worth bearing the limitations
in mind”.
36. On 2 June 1970 Mr P J Sullivan from South West Pacific Department at the
FCO wrote to the office of the DPP. Having referred to the likely publicity that the
arrival of a British police team in Malaysia would cause, especially if the team
wished to take evidence in the area of Batang Kali itself, he expressed doubts about
the reliability of any evidence which was given, in the light of the passage of time
and also because of the possible incentive of compensation.
37. On 12 June 1970 the DPP was provided by one of his officials with a minute
which concluded:
“I am satisfied that on the evidence we have there is no prospect
of criminal proceedings. But there are at least five persons who
say this was murder. It seems to me inquiries must be pursued
in Malaysia otherwise the inquiry will only be half done.
Furthermore there are a number of witnesses out there who
claim to have seen what took place, including Cheung Hung.
The various statements by this man are inconsistent and we
want to pin him down. It appears also that a number of persons
who say they saw what happened (women on the lorry) could
not have been in a position to do so. I feel that this should be
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cleared up. I am of the opinion that, if we do not go through to
the bitter end, we will lay ourselves open to attack by the
newspapers and by the anti-military brigade.”
38. The DPP’s endorsement of that minute was in these terms:
“I have nothing to add to my minute of 5/6/70. Having
embarked on this inquiry, must we now go as far as we can?
Perhaps however the Malaysian Government will refuse entry
to the investigating team, which will save any further
expenditure of time and money on this unrealistic inquiry.”
39. Following the General Election on 18 June 1970, the new Attorney General,
Sir Peter Rawlinson QC, indicated at a meeting with the DPP on 26 June 1970 that
it was unlikely that sufficient evidence would be obtained to support a prosecution
and therefore the investigation should go no further. This decision was
communicated to the Ministry of Defence by the DPP on 29 June 1970, with a fairly
full explanation, which concluded that, in the light of the passage of time and the
inconsistent statements which had been made:
“I am satisfied that the institution of criminal proceedings
would not be justified on the evidence so far obtained. Further
in my view the prospect of obtaining any sufficient additional
evidence by further police investigation in Malaysia are so
remote that this would not be warranted. Accordingly, I do not
propose to ask the police to pursue the inquiry and the Attorney
General agrees with my views.”
40. On 30 July 1970, DCS Williams produced a report on his investigation to
date. It stated:
“Cootes, Tuppen (with solicitor), Brownrigg and Kydd
admitted in statements, after caution, that murder had been
committed. Woods, in the presence of a solicitor, verbally
admitted that murder had been committed, after he had been
cautioned. Remedios, in the presence of a solicitor, refused to
comment on, or add anything to his original sworn statement.
Porter and Gorton made statements denying the allegations. …
At the outset this matter was politically flavoured and it is
patently clear that the decision to terminate inquiries in the
middle of the investigation was due to a political change of
Page 12
view when the new Conservative Government came into office
after the General Election of 18 June 1970.”
41. Meanwhile, the Ministry of Defence decided not to hold an inquiry into the
Killings.
Events from 1992 to 1997
42. The deaths at Batang Kali next gained significant public prominence when
the BBC broadcast a documentary on 9 September 1992 about the Killings, entitled
In Cold Blood. This was based on a range of materials, which included interviews
with Cheung Hung and a number of other Malaysians who were related to the men
who had been killed or who had been present in Batang Kali when these events
occurred. This was the first time many of them had been interviewed. One of the
officers involved in the 1970 Metropolitan Police investigation, Detective Sergeant
Dowling, and three guardsmen who had not been on the patrol were also interviewed
and some of the statements made during the 1970 police interviews with the
guardsmen were read out. It was said they stood by their accounts but refused to
appear. The Ministry of Defence declined an invitation to participate. In
correspondence with the BBC, it simply confirmed the account given in 1948 and
in 1949.
43. On 15 September 1992, immediately following the broadcast, Ministers were
briefed by Richard Suckling, a senior government legal adviser. The briefing
described the BBC documentary. It noted that a fact which had not been referred to
in the programme was the substantial conflict of evidence between the soldiers who
had been present and had given statements. It also referred to the possible
differences between what may have been thought to be acceptable in 1948 and in
1992.
44. Following the broadcast, the Crown Prosecution Service reviewed whether
any further steps should be taken. In a draft note of the review dated 26 March 1993,
Jim England of the Service’s War Crimes Unit observed:
“What the documentary does show is that in 1970 there
probably were a number of people with relevant information to
give if the police had gone to Malaysia. Even though it now
seems almost certain that Chong Fong’s account is fictional, I
do not consider that it would be fair to say that all the surviving
villagers were inherently unreliable. It seems to me that they
were never given an official opportunity to tell their side of the
story due to fear of what they would say.”
Page 13
45. However, Mr England said that he “was certain in [his] own mind that it
would be pointless now to re-open this investigation”, partly because “if anyone was
charged they would, in view not only of the long and what must be regarded as a
consequentially prejudicial delay” but also because “the termination of inquiries in
1970, have an unassailable abuse of process argument so as to avoid conviction”. It
would appear that no consideration was given to holding an inquiry rather than
pursuing a criminal prosecution.
46. Meanwhile, on 8 July 1993, Foo Moi, the wife of one of the men who had
been shot, and Cheung Hung, the first appellant’s father, presented a Petition to the
Queen through the British Embassy in Kuala Lumpur requesting the British
government to reopen the investigations, prosecute those responsible for the deaths
and to pay compensation. No such action was taken and a telegram from the High
Commission to the FCO of 7 February 1994 observed:
“… we see no case for pushing ahead with an answer to the
petition while air services and Bosnia remain such sensitive
issues. … Even if we were [put under pressure by the MCA or
the Malaysian Government] we would be able to resist it by
taking the line that a suitably thorough examination of the
relevant papers in the UK was necessarily taking time.”
47. A letter from the High Commission to the FCO of 6 April 1994 commented:
“It remains in our interests to play this affair long … I therefore
recommend that the MCA’s petition is submitted to the Queen
as soon as possible. … This would buy us a bit more time in
which to consider the terms of our reply to the petition (I will
telegraph separately with further advice on this).”
48. By April 1994 the Petition had been submitted to the Palace with a draft
response which was described as “essentially non-committal”, while not closing the
door to further action if sufficient new evidence is forthcoming.
49. In December 1994, the High Commissioner responded to the Malaysian
Chinese Association who inquired as to the progress of the response to the Petition
that he was looking into the matter. However, a response to the 1993 Petition was
never forthcoming.
50. Meanwhile, on 14 July 1993, the Royal Malaysian Police began investigating
the Killings locally in response to a report of the massacre as a crime made that day
by three surviving family members: Foo Moi, and the first appellant’s father and
Page 14
mother, Cheung Hung, and Tham Yong. The Malaysian Police took statements from
them and a number of others who were either related to the men who had been killed
or who had been in the village at the time, as well as three retired police officers.
Contrary to his statement of 14 December 1948, Detective Constable Chia Kam
Woh denied being present at Batang Kali on the day.
51. Having been made aware of the petition and Royal Malaysian Police
investigation, on 2 February 1994, Mr England sent his report on the 1970
Metropolitan Police Force evidence and the In Cold Blood documentary to the FCO.
His covering letter stated:
“As you will appreciate, the role of the CPS is limited to
assessing the quality of evidence and making decisions on the
question of criminal proceedings. The Petition from the
villagers raises other matters of compensation which are not
within our remit.”
He also stated that no further action was envisaged:
“although this does not preclude you from asking the CPS to
examine any further evidence which may emerge from present
investigations in Malaysia so that your Ministers may be
advised whether any grounds exist for requesting further
investigations.”
52. The FCO replied on 15 March 1994 stating:
“I am very sorry that other events have prevented me from
acknowledging before now the very helpful paper enclosed with
your letter of 2 February. I copied it at the time to our High
Commission in Kuala Lumpur. Their recommendation was that,
since we were under no particular pressure from the Malaysians
to produce an answer, we should not take further action on the
Petition while certain sensitive issues in our relations with
Malaysia remained unresolved. Events since then tend to
reinforce that case, and I therefore propose to leave the papers
on the file for the moment. I will reassess in due course. I will
let you know before moving again.”
53. An interim Royal Malaysian Police report of 31 May 1995 concluded that
further inquiries were necessary, including obtaining the views of the chief
pathologist as to examining the bodies and taking statements from the Scots Guards.
Page 15
54. A request was made through Interpol for British help which was passed to
the Metropolitan Police War Crimes Unit. This included a request for the names of
the Scots Guards on the patrol. It took until 31 July 1996 to send the names. The
addresses were then sought by the Royal Malaysia Police, but nothing further seems
to have been supplied.
55. Officers involved in the investigation planned to visit the United Kingdom to
pursue their inquiries here. However, this never took place. The Royal Malaysia
Police file was closed on 30 December 1997, it would appear due to a lack of
evidence to support criminal charges.
More recent events
56. In 2008, a campaign group called the Action Committee Condemning the
Batang Kali Massacre was formed. On 25 March that year it sent a second petition
to the Queen seeking an apology and compensation. In October, the appellants’
solicitors wrote to the Foreign Secretary requesting a response to the petition.
57. On 12 December 2008, a supplementary petition was presented seeking
additional relief including a public inquiry. On 21 January 2009, the High
Commissioner gave a response that was subsequently withdrawn following preaction correspondence from the appellants’ solicitors:
“In view of the findings of the two previous investigations that
there was insufficient evidence to pursue prosecutions in this
case, and in the absence of new evidence, regrettably we see no
reason to re-open or start a fresh investigation.”
58. A barrister, Dr Brendan McGurk, was then instructed to review the available
material on the Killings for the respondents. On 21 August 2009, the appellants’
solicitors were sent a provisional decision based on this review refusing to establish
an inquiry or to investigate. They were invited to comment. Before doing so, they
secured access to view the police files that Dr McGurk had seen and to some of the
CPS material. They provided copies of a book that had just been published about
the killings, Slaughter and Deception at Batang Kali by Ian Ward, the former Daily
Telegraph War Correspondent, and Norma Miraflor. With their representations, they
forwarded material from the 1993-1997 Malaysian Police file that had been supplied
to them by a journalist that had not been seen by Dr McGurk or the British
authorities. They also made the respondents aware of the views of archaeologist
Professor Sue Black from the Centre of Anatomy and Human Identification at the
University of Dundee, as to the prospects of disinterment revealing new evidence
and the extent of the process required.
Page 16
59. On 29 November 2010 the Treasury Solicitor wrote to the appellants’
solicitor communicating the respondents’ decision to refuse to hold an inquiry into
the Killings, and setting out their reasons.
The instant proceedings
60. The instant proceedings were issued on 25 February 2011 by way of an
application for judicial review. The Scots guardsmen involved in the patrol who
were known to be alive and could be traced were served as interested parties but did
not participate. Permission was granted on 31 August 2011 by Silber J.
61. On 4 November 2011 the Treasury Solicitor sent a letter to the appellants’
solicitor stating that the respondents had reviewed and confirmed their decision not
to hold an inquiry following a submission from officials addressing an argument
concerning the adequacy of the previous investigations.
62. Upon the appellants’ application for disclosure of documents by the
Metropolitan Police, on 1 May 2012, Sir John Thomas P made an order stating: “I
cannot be satisfied that these documents are documents that must be disclosed, but
the pragmatic solution to the issue is for the documents to be made available to the
claimants’ solicitors, who can then apply to put those which are relevant (and only
those) in due course before the court”.
63. The Divisional Court (Sir John Thomas P and Treacy J) dismissed the claim
for reasons given in a judgment given on 4 September 2012 – [2012] EWHC 2445
(Admin). The appellants’ appeal to the Court of Appeal was dismissed for reasons
given in a judgment of the court (Maurice Kay, Rimer and Fulford LJJ) given on 19
March 2014 – [2014] EWCA Civ 312, [2015] QB 57. The appellants now appeal to
this court.
The Jurisdiction issue
64. The first issue which it is appropriate to address is whether the present claim
is properly brought against the United Kingdom at all. That submission appears to
apply to all three of the bases upon which the appellants rest their case, but it was
principally developed in argument by reference to the first basis, article 2 of the
Convention (“article 2”). In so far as the claim is brought under article 2, this issue
is encapsulated in the question whether the appellants’ complaint relates to alleged
failures by the United Kingdom “to secure to everyone within [its] jurisdiction”,
within the meaning of article 1 of the Convention, any of the rights and freedoms
defined in article 2, so as to make the United Kingdom potentially responsible for
Page 17
breach of the Convention Rights as incorporated into domestic law by the Human
Rights Act 1998 (“the 1998 Act”).
65. On this issue, I have read in draft the judgment of Lord Mance. I agree with
his conclusion that, in so far as the respondents’ case is based on lack of jurisdiction,
it should be rejected for the reasons which he gives.
The appellants’ case based on article 2 of the Convention
Introductory
66. Article 2.1 provides that “everyone’s right to life shall be protected by law”
and that “no one shall be deprived of his life intentionally” save pursuant to a court
order. According to well-established Strasbourg jurisprudence, this article has given
rise to what is now recognised as a “separate and autonomous duty … to carry out
an effective investigation” into any death which occurs in suspicious circumstances
– see the Grand Chamber judgment in Šilih v Slovenia (2009) 49 EHRR 996, para
159. The respondents in this case unsurprisingly do not argue that, at least if one
ignores the fact that they occurred in 1948, the Killings would not fall within this
principle.
67. However, the respondents contend that the appellants’ claim, in so far as it is
based on article 2, is barred for what may be characterised as temporal or procedural
reasons. The respondents’ first argument has two strands and is based on the fact
that the Killings occurred (i) before the Convention came into existence, and indeed
(ii) before the 1998 Act came into force. Although the Strasbourg court has
somewhat finessed the strict rule that the Convention cannot apply retrospectively,
the respondents contend that the finessing cannot assist the appellants. The
respondents’ second argument is that, even if the first argument is wrong, the
appellants are too late, as their article 2 right (if any) to seek an inquiry is timebarred. I shall take those arguments in turn.
The contention that there is no right under the Convention
68. The Killings took place in December 1948 and the Convention was only
finally agreed in November 1950. In those circumstances, at any rate at first sight,
it might be thought that no right, however fundamental or important, could arise
under the Convention in relation to facts which occurred before the Convention
came into force. Indeed, in accordance with article 28 of the Vienna Convention on
the Law of Treaties 1969, that is the normal rule in relation to the application of the
Convention – see Blečić v Croatia (2006) 43 EHRR 1038, paras 45-72 and Šilih at
para 140.
Page 18
69. However, the law on this aspect has been interpreted by the Strasbourg court,
specifically in relation to the duty to investigate suspicious deaths, in what may be
characterised as a more nuanced way. The law was developed in a number of cases
of which Šilih was of particular importance. In that case, as already mentioned, the
Grand Chamber held in para 159 of its judgment that the duty to investigate
suspicious deaths had “evolved into a separate and autonomous duty” on a state,
which was “a detachable obligation arising out of article 2 capable of binding the
state even when the death took place before the [date when the Convention was
binding on the state]”. However, the guidance which the court then gave as to how
it was to be decided whether that separate and autonomous duty had arisen was
subject to substantial criticism (not least in the concurring opinion of Judge
Lorenzen and the dissenting opinion of Judges Bratza and Turmen in Šilih itself).
70. No doubt it was at least in part for that reason that the law on the point was
relatively recently clarified by the Grand Chamber in Janowiec v Russia (2013) 58
EHRR 792, from which almost all the applicable principles can be taken for present
purposes.
71. In para 128 of Janowiec, the Grand Chamber confirmed that “the provisions
of the Convention do not bind a Contracting Party in relation to any act or fact which
took place or any situation which ceased to exist before the date of the entry into
force of the Convention with respect to that Party (the critical date)”. The issue in
this case which requires consideration of judgments other than Janowiec is whether
“the critical date” is the date on which the state in question signed up to the
Convention or the date on which that state gave its citizens the right to petition the
Strasbourg court in relation to any alleged infringement of their Convention rights.
Apart from that, however, as the Grand Chamber explained in Janowiec, Strasbourg
jurisprudence has established that the general principle that the Convention is not
retrospective does not necessarily mean that a state has no duty to investigate a
suspicious death simply because it occurred before the critical date.
72. As the Grand Chamber put it in para 141 of Janowiec, in such a case, there
are three relevant applicable requirements:
“First, where the death occurred before the critical date, the
court’s temporal jurisdiction will extend only to the procedural
acts or omissions in the period subsequent to that date.
Secondly, the procedural obligation will come into effect only
if there was a ‘genuine connection’ between the death as the
triggering event and the entry into force of the Convention.
Thirdly, a connection which is not ‘genuine’ may nonetheless
be sufficient to establish the court’s jurisdiction if it is needed
to ensure that the guarantees and the underlying values of the
Convention are protected in a real and effective way.”
Page 19
In other words, in the case of a death before the critical date, two criteria must be
satisfied before the article 2 investigation duty can arise, namely (i) relevant “acts
or omissions” after the critical date, and (ii) a “genuine connection” between the
death and the critical date. However the second criterion may be finessed where it
is necessary to underpin “the underlying values of the Convention”.
73. Turning to the first criterion, on the face of it at any rate, the appellants have,
at the very least, a powerful case for saying that there have in this case been relevant
“acts” and “omissions” since the “critical date”. The clearest basis for this contention
arises from the information that came to light in the period 1969-1970, which, on
any view, was after the “critical date”. Until the sworn statement of William Cootes
was published in The People in late 1969, there was no specific evidence, at any rate
in the public domain, from anyone in the patrol that the Killings had been unlawful.
In the ensuing months further formal and informal statements to the same effect
were made by other members of the patrol.
74. At para 144 of its judgment in Janowiec, the Grand Chamber explained that
a relevant “omission” would occur if no investigation had occurred and:
“… a plausible, credible allegation, piece of evidence or item
of information comes to light which is relevant to the
identification and eventual prosecution or punishment of those
responsible. Should new material emerge in the post-entry into
force period and should it be sufficiently weighty and
compelling to warrant a new round of proceedings, the court
will have to satisfy itself that the respondent state has
discharged its procedural obligation under article 2 in a manner
compatible with the principles enunciated in its case law.”
75. In the light of this approach, it appears to me that the appellants have
established that the first criterion identified in para 141 of Janowiec is satisfied. The
crucial components of my reasoning are that (i) prior to 1970, there had been no
prior full or public investigation of the Killings, (ii) until 1969, there had been no
publicly available evidence from any member of the patrol to suggest that the
Killings had been unlawful, (iii) the evidence which first came to light in late 1969
and early 1970 plainly suggested that the Killings were unlawful, and (iv) that
evidence appears to have been “weighty and compelling”, although by no means
conclusive in the light of the other evidence.
76. I turn to the second criterion identified in para 141 of Janowiec, the “genuine
connection” requirement. In that connection, the Grand Chamber said this at para
146:
Page 20
“[T]he lapse of time between the triggering event and the
critical date must remain reasonably short if it is to comply with
the ‘genuine connection’ standard. Although there are no
apparent legal criteria by which the absolute limit on the
duration of that period may be defined, it should not exceed ten
years. Even if, in exceptional circumstances, it may be justified
to extend the time-limit further into the past, it should be done
on condition that the requirements of the ‘Convention values’
test have been met.”
77. It is in relation to this issue that it is necessary to look outside Janowiec in
order to resolve a centrally important dispute between the parties, namely whether,
for this purpose, the “critical date”, from which the ten years referred to in para 146
of Janowiec runs back, is (i) the date on which the Convention came into force in
the relevant territory, or (ii) the date on which the relevant state first recognised the
right of every individual citizen to petition the Strasbourg court in relation to alleged
infringements of their Convention rights (“the right to petition”). The appellants
argue for date (i), whereas the respondents contend that date (ii) is correct (although
they did not take this point in the courts below, where they accepted what is now the
appellants’ case on this issue).
78. The date when the Convention came into force in the United Kingdom was 3
September 1953, although, if the appellants are right, the more relevant date would
very probably be that on which the UK extended the application of the Convention
to the Federation of Malaya, 23 October 1953. It does not matter which is correct
for present purposes, as the Killings took place less than ten years before either date.
On the other hand, if the “critical date” is that on which the United Kingdom first
recognised the right to petition, it would be 14 January 1966, as that was the date on
which the UK accorded the right to its citizens to petition the Strasbourg court “in
relation to any act or decision occurring or any facts or events arising subsequently
to the 13 January 1966”. If that is the correct date, then the appellants must fail as
the Killings occurred considerably more than ten years before that date.
79. At first sight, this point may appear to have been disposed of by the Grand
Chamber in Janowiec, given the definition of “critical date” at para 128 as “the date
of the entry into force of the Convention with respect to that Party”. However, that
statement was made in a case where the “Party”, ie the state concerned, Russia, had
accorded the right to petition on the same date as it acceded to the Convention. It is
therefore plainly not dispositive of the issue. In my view, the position is made clear
in two Grand Chamber judgments in 2009.
80. In Šilih, para 140, the Grand Chamber said this:
Page 21
“The court reiterates that the provisions of the Convention do
not bind a contracting party in relation to any act or fact which
took place or any situation which ceased to exist before the date
of the entry into force of the Convention with respect to that
party or, as the case may be, prior to the entry into force of
Protocol No 11, before the date on which the respondent party
recognised the right of individual petition, when this
recognition was still optional (the critical date). This is an
established principle in the court’s case law based on the
general rule of international law embodied in article 28 of the
Vienna Convention” (emphasis added).
81. It is very hard to accept the appellants’ submission that the reference in that
passage to the date of the right to petition was an oversight or mistake. This passage
is also said by the appellants to be inconsistent with what the Grand Chamber had
said in para 70 of Blečić. I do not agree. First, that paragraph was well in the court’s
mind in Šilih, as it was specifically cited to support what was said in para 140.
Secondly, para 70 of Blečić is expressed in the negative: it merely says that a
contracting party cannot be liable in respect of “any act or fact which took place or
any situation which ceased to exist before the date of the entry into force of the
Convention with respect to that party”. That is not the same thing as saying that a
contracting party is always liable in respect of any act or fact which took place, or
any situation which only ceased to exist, after that date. Further, if the Grand
Chamber in the subsequent decision in Janowiec had considered that what was said
in para 140 of Šilih was wrong, it would surely have said so.
82. In addition, there is Varnava v Turkey (Application Nos 16064-16066/90 and
16068-16073/90), (unreported) given 18 September 2009, which was concerned
with Turkey’s alleged failure to investigate the disappearance of individuals in
Northern Cyprus in 1974. Turkey had ratified the Convention in 1954, but had only
recognised the right of petition in 1987. The Grand Chamber at para 133 said that
“the court is not competent to examine any complaints by these applicants against
Turkey so far as the alleged violations are based on facts having occurred before …
January 1987”. Two points can be made, about that decision. First, the claims
nonetheless succeeded, as the court held that, unlike killings, disappearances carried
with them an ongoing obligation to investigate (see para 148, and the distinction was
confirmed in Janowiec at para 134). Secondly, there was no argument in Varnava
based on the contention that there had been any relevant “acts or omissions” on the
part of Turkey since 1974. However, it does not appear to me that either of those
points detract from the point that the reasoning of the Grand Chamber in Varnava is
difficult to reconcile with the appellants’ case on the “critical date” issue.
83. In addition to these two Grand Chamber judgments, there are the
admissibility decisions of the First Section of the Court in Çakir v Cyprus
(Application No 7864/06), (unreported) given 29 April 2010 and of the Third
Page 22
Section in Dorado v Spain (Application No 30141/09), (unreported) given 27 March
2010, and the judgment of the First Section in Jelić v Croatia (Application No
57856/11) (unreported) given 12 June 2014.
84. Like Varnava, Çakir was concerned with events in Cyprus in 1974, but,
unlike Varnava and like this case, it involved allegations of failure to investigate
allegedly unlawful killings rather than disappearances. At p 5, the court repeated the
Grand Chamber’s formulation of the relevant law in para 140 of Šilih and para130
of Varnava, and then pointed out that the killings in question occurred more than 14
years before Cyprus accorded the right to petition – on 1 January 1989. It is fair to
say that the decision that the claim in that case was inadmissible was not specifically
based on the point that the killings occurred more than ten years before the date on
which the right to petition was granted by Cyprus. However, the essential point is
that the court relied on more than one occasion on the proposition that the critical
date was that date, rather than the date on which Cyprus acceded to the Convention
(see at pp 6, 7 and 8).
85. In Dorado at para 32, the court stated that “the provisions of the Convention
do not bind a contracting party in relation to any act or omission which took place
… before the date of the entry into force of the Convention in respect of that party”.
That is, strictly speaking, neutral, as it is not inconsistent with the respondents’ case
here. In any event, the application was inadmissible on any view.
86. In Jelić, the court discussed Varnava, Šilih and Janowiec, and, at para 55,
acknowledged that “in Šilih, the proximity in time of the death of the applicant’s son
to the acceptance by Slovenia of the right of individual petition … established the
temporal competence of the court in respect of the procedural obligation under
article 2 of the Convention”.
87. Quite apart from Strasbourg jurisprudence, I consider that the respondents’
contention as to the “critical date” accords better with principle. The “rule” that one
cannot, at least normally, go back more than ten years relates to the jurisdiction of
the Strasbourg court, as is clear from the way in which the court expressed itself in
para 144 in Janowiec. One would therefore expect it to be linked to the date on
which the court’s jurisdiction could be expected to be invoked. Further, the rule is
to a substantial extent based on practicalities, and it would therefore be rather odd if
its applicability was related to the date on which the Convention first applied rather
than the date on which it could first be invoked. Finally, given that time starts to run
under article 35 of the Convention against a citizen’s right to complain to the
Strasbourg court from the date on which the right arose (as to which see the next
section but one of this judgment), it would seem consistent if the ten-year rule
applied in the same way.
Page 23
88. In these circumstances, I conclude that, subject to the third criterion identified
in para 141 of Janowiec, involving “Convention values”, the present claim does not
meet the “genuine connection” requirement in the second criterion. The third
criterion was considered by the Grand Chamber in paras 149-151 of Janowiec, and,
while it was accepted that it applied where “the triggering event was of a larger
dimension than an ordinary criminal offence”, the court concluded that “a
Contracting Party cannot be held responsible under the Convention for not
investigating even the most serious crimes under international law if they predated
the Convention”. Accordingly, the third criterion cannot assist the appellants.
89. It therefore follows that, in so far as the appellants’ claim is based on article
2, it fails because the Strasbourg court would rule it inadmissible as the Killings
occurred more than ten years before UK citizens had the right to petition the
Strasbourg court.
90. Although Lady Hale and Lord Kerr reach the same conclusion in relation to
the appellants’ claim based on article 2, they do so for somewhat different reasons.
Lady Hale takes a different view of the critical date, as, unlike me, she regards the
Strasbourg jurisprudence as unclear and considers that logic favours the date on
which the Convention came into force. Lord Kerr considers that the proper approach
to this issue is somewhat more nuanced than I do. I readily understand the attraction
of his approach, but in my view it is important that parties know where they are in
this area of jurisprudence, and it seems to me that his approach would leave the law
being in a somewhat unpredictable state. As Lady Hale rightly says, we do not have
to follow Strasbourg jurisprudence slavishly, but I would be reluctant to depart from
it on this point in this appeal for two reasons. First, the appeal was argued on both
sides on the basis that we should follow Strasbourg jurisprudence on this issue.
Secondly, this is a topic on which clarity and consistency is highly desirable, and,
unless the guidance from Strasbourg seemed unclear, incoherent or unworkable, I
would be reluctant not to follow and apply it. Having permitted a degree of
retroactivity, I believe that the Strasbourg court has rightly imposed some pretty
clear rules with a view to ensuring a degree of clarity and consistency in this area.
Particularly in the absence of any invitation to do so, I consider that, at least in this
case, this is an area on which we should follow, but go no further than Strasbourg
jurisprudence.
91. Although I have concluded that the claim under article 2 should fail for the
reason summarised in para 89 above, it is worth examining, albeit not with a detailed
exegesis, the other two grounds raised against the appellants’ article 2 case by the
respondents.
Page 24
The contention that there is no right under the 1998 Act
92. The respondents contend that, even if (contrary to the conclusion which I
have reached) the Strasbourg court would have held that the appellants would have
had a valid claim for an inquiry into the Killings under article 2, their claim under
that head should be dismissed because a UK court would have no jurisdiction to
entertain it. This contention is based on the proposition that the jurisdiction of a UK
court to entertain the claim arises not (at least directly) from the Convention, but
from the 1998 Act, and, as that Act only took effect on 2 October 2000, it cannot be
invoked in order to give the court jurisdiction in respect of an event which occurred
before that date.
93. At least on the face of it, that seems a very powerful contention. It is clear
from section 22(4) that the 1998 Act was not intended to have retrospective effect.
And the contention is supported by opinions given by all five members the House
of Lords in In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, a case concerned
with the duty to hold an inquiry or inquest into a suspicious death: see paras 20-23,
48, 67, 79-81 and 88-89 per Lord Nicholls, Lord Steyn, Lord Hoffmann, Lord
Rodger and Lord Brown respectively. This, Lord Hoffmann explained that the
House of Lords had “decided on a number of occasions that the [1998] Act was not
retrospective”, and that accordingly there was, at least domestically, no “ancillary
right to an investigation of [a] death [of] a person who died before the Act came into
force”.
94. However, in the light of the Grand Chamber judgment in Šilih, some
members of this court adopted a somewhat modified position in the subsequent case
of In re McCaughey (Northern Ireland Human Rights Commission intervening)
[2011] UKSC 20, [2012] 1 AC 725. In that case, by a majority of six to one, the
Supreme Court held that, at least where there had been a decision to hold an inquest
into a death which had occurred before 2 October 2000, the 1998 Act could be
invoked to require the inquest to comply in all procedural aspects with the
requirements of the Convention. (And I can see no reason why the same reasoning
would not apply where the decision was to hold an inquiry into a death which had
occurred before 2 October 2000.)
95. However, Lord Phillips went a little further in McCaughey at paras 61-63,
where he indicated that, if in a particular case the Strasbourg court would hold that
there was, after 1 October 2000 an article 2 obligation to investigate a suspicious
death before that date, then, contrary to the conclusion in McKerr, he would have
been inclined to hold that that obligation would also arise in domestic law under the
1998 Act. While he found the reasoning in Šilih difficult to understand (para 46), he
seems to have formed the opinion that it would probably justify departing from
McKerr, although he did not express a concluded view. Lord Kerr (who at paras
216-219 was also critical of the reasoning in Šilih) and Lord Dyson both appear to
Page 25
have concluded that the effect of the Grand Chamber’s reasoning in Šilih was that
the conclusion reached in McKerr was no longer sound, and that, if the Strasbourg
court would hold that the UK had an article 2 duty after 1 October 2000 to investigate
a death before that date, then that duty would also arise domestically under the 1998
Act – see paras 110-114 and 132-137 respectively.
96. Lord Hope (who at para 73 was similarly unhappy about the lack of clarity
of the guidance in Šilih) took a different view, and at para 75 said that he saw “no
reason to disagree” with the views expressed in McKerr. He explained in the
following paragraphs that it was only because there had been a decision to have an
inquest in that case that the requirements of article 2 could be invoked. Lord Rodger
of Earlsferry, who dissented, certainly favoured following McKerr. Given that the
issue did not need to be determined, neither Baroness Hale nor Lord Brown
addressed the question whether the reasoning in McKerr remained good law,
although they proceeded on the assumption that it did.
97. In the light of this rather unsatisfactory state of affairs, there would be much
to be said for our deciding the issue of whether McKerr remains good law on this
point. However, given that it is unnecessary to resolve that issue in order to
determine this appeal, we ought not to decide it unless we have reached a clear and
unanimous position on it. We have not. On the one hand, the respondents’ case is
supported by the unanimous decision of a five-judge court in McKerr, whose ratio
is clear and simple to apply, but it could lead to undesirable conflicts between
domestic and Strasbourg jurisprudence. On the other hand, the appellants’ case
derives significant support from two, and arguably three, of the judgments in the
subsequent seven-judge court in McCaughey, and, while it involves applying
Strasbourg jurisprudence which has been criticised for lack of clarity, it would
ensure that domestic and Strasbourg jurisprudence march together.
98. Accordingly, I would leave open the question whether, if the Strasbourg court
would have held that the appellants were entitled to seek an investigation into the
Killings under article 2, a UK court would have been bound to order an inquiry
pursuant to the 1998 Act.
The contention that the appellants’ article 2 claim is out of time
99. The respondents’ case that the appellants’ article 2 claims are in any event
brought too late rests on article 35 of the Convention and section 7(5) of the 1998
Act. Under article 35, the Strasbourg court only has jurisdiction in a case where an
application is brought after “all domestic remedies have been exhausted … and
within a period of six months from the date on which a final decision was taken”.
Under section 7(5), a complaint of infringement under the 1998 Act must normally
be brought within “one year beginning with the date on which the act complained
of took place”. For present purposes, it does not matter which of these time limits
Page 26
apply – or whether both of them do. However, I am inclined to think that only section
7(5) applies, as it is solely the jurisdiction of the domestic court which the appellants
are seeking to invoke, even though their case inevitably relies heavily on Strasbourg
jurisprudence.
100. The appellants contend that time only started to run with the decision of 29
November 2010 to refuse an inquiry, and if that is right, the instant application
would plainly have been in time. The respondents primarily contend that time started
to run in 1970, when the vital fact that a number of the soldiers in the patrol stated
that the Killings were unlawful first became publicly known, and it was decided not
to hold an inquiry. Alternatively, the respondents say that time started to run by 1997
when it became clear that, despite the renewed publicity in the television film shown
in 1992 and the presentation of a petition for an inquiry in 1993, there would be no
inquiry.
101. In Varnava at para 162, the Grand Chamber said that, in a case of a suspicious
death, “[t]he lack of progress or ineffectiveness of an investigation will generally be
more readily apparent”, and, [a]ccordingly, the requirements of expedition may
require an applicant to bring such a case before Strasbourg within a matter of
months, or at most, depending on the circumstances, a very few years after events”.
At para 158, the Grand Chamber also made the point that “where a death has
occurred, applicant relatives are expected to take steps to keep track of the
investigation’s progress, or lack thereof, and to lodge their applications with due
expedition once they are, or should have become, aware of the lack of any effective
criminal investigation”.
102. However, as the appellants contend, there are observations from the
Strasbourg court that the article 2 duty to hold an investigation can arise as a result
of fresh evidence. Indeed, that point arose in the Strasbourg court’s judgment in
McKerr v United Kingdom (2002) 34 EHRR 553, which was a precursor to McKerr.
The reasoning in McKerr v United Kingdom was cited in the admissibility decision
in Hackett v United Kingdom (Application No 34698/04), (unreported) given 10
May 2005, where the Fourth Section said at p 5 that “later events or circumstances
may arise which cast doubt on the effectiveness of the original investigation and trial
or which raise new or wider issues and an obligation may arise for further
investigations to be pursued”.
103. To similar effect, in Brecknell v United Kingdom (2007) 46 EHRR 957, para
66, the Strasbourg court said that “it may be that sometime later, information
purportedly casting new light on the circumstances of the death comes into the
public domain” and that “[t]he issue then arises as to whether, and in what form, the
procedural obligation to investigate is revived”. It then gave examples including
“deliberate concealment of evidence” which only subsequently comes to light, or
later items of evidence which “cast doubt on the effectiveness of the original
Page 27
investigation and trial”. However in para 70 the court accepted that it was not right
to say that “any assertion or allegation can trigger a fresh investigative obligation
under article 2”, but emphasised that “state authorities must be sensitive to any
information or material which has the potential either to undermine the conclusions
of an earlier investigation or to allow an earlier inconclusive investigation to be
pursued further”.
104. Despite their reliance on these cases, and despite the views of Lord Kerr to
the contrary, I would reject the appellants’ argument that there were events or
revelations occurring after 1970, and, even more, after 1997, which justify the
argument that, in effect, their article 2 right to an investigation into the Killings
revived, and could be pursued in 2009.
105. The respondents realistically accept that the new evidence which came to
light in 1969 and 1970 was of such significance that it revived such article 2 right to
an investigation into the Killings as the appellants may have had. As already
explained, that evidence for the first time involved clear and public statements from
soldiers involved with the Killings which cast serious doubt on the correctness of
the consistent public position of the UK government that the Killings had been
lawful. The new evidence was a classic example of the type of new information
which the courts in Brecknell and Hackett would have had in mind as justifying an
investigation if none had been held before, or even, perhaps, if one had been held
before.
106. However, the same cannot be said about the evidence or information which
came out subsequent to 1970, particularly when one bears in mind that the matter
must primarily be assessed by reference to the evidence available to the applicant
concerned. The only arguably significant new evidence which was available to the
appellants after 1970 was (i) in the contents of the 1992 television programme In
Cold Blood and (ii) in the 2009 book, Slaughter and Deception at Batang Kali and
(iii) the contents of some further statements.
107. Both the programme and the book gave the Killings some publicity and no
doubt caused many people to undergo feelings of outrage and concern. However,
although they each contained some new evidence in the form of, or as a result of,
interviews with relatives of the victims of the Killings, neither the television
programme nor the book contained much new revelatory evidence over and above
that which had been available in 1970. The same thing may be said of any statements
which were taken after 1970. In other words, any item of evidence which could be
said to have been new after 1970 did not really add anything to the basic point, which
had become quite apparent in 1970, namely that there were considerable reasons for
doubting whether the official UK government line on the Killings was correct, and
that there were strong grounds which suggested that the Killings were unlawful. As
for any further investigations carried out in the three or four years following the
Page 28
broadcasting of the television programme, the same may be said about them: they
did not take matters further in terms of revelatory information. Similarly, the
investigations in 2008/2009 involved little more than reviewing information which
had long been available.
108. In these circumstances, although it may seem somewhat harsh on the facts of
this case, I am of the view that, if the appellants’ case, in so far as it is properly based
on article 2, were held to have been brought within time, it would make the strict
time limits in section 7(5) and in article 35 something of a paper tiger in many cases
where there is a claim that a death should be investigated.
109. I would therefore hold that even if, contrary to my view, the appellants’ case
would otherwise be made out under article 2, it would still have to be rejected on
the ground that it has been brought too late.
110. It is right to add that a further argument which was touched on in oral
submissions, but not developed in much detail, is that, as the purpose of the proposed
inquiry is, at least in the main, to establish historical truth, the appellants cannot rely
on article 2. In Janowiec at para 143, the Grand Chamber observed that the
obligation to conduct investigations under articles 2 and 3 is in connection with
“criminal, civil, administrative or disciplinary proceedings which are capable of
leading to the identification and punishment of those responsible or to an award of
compensation to the injured party”, not “other types of inquiries that may be carried
out for other purposes, such as establishing a historical truth”. There is obvious force
in the point that an inquiry after 2010 into events in 1948 must at least to a substantial
extent be to establish the truth, and it is unlikely that any “criminal, civil,
administrative or disciplinary proceedings” would result even if it was concluded
that the Killings amounted to a war crime. However, as the point was not debated
very much, and as it is unnecessary to rule on it, I shall say no more about it
(although a similar point arises in connection with the common law claim – see para
132 below).
The appellants’ case based on customary international law
Introductory
111. The second basis for the appellants’ claim for an inquiry into the Killings is
embodied in the argument that customary international law requires the UK
government to investigate the Killings, particularly in the light of the evidence now
available to support the notion that they were unlawful and may have amounted to
a war crime, and that the common law would recognise, and give effect to, this
aspect of international law.
Page 29
112. I would reject that contention for two reasons. First, the cases and textbooks
to which we have been taken do not establish that, by 1948, when the Killings
occurred, international law had developed to the extent of requiring a formal public
investigation into a suspicious death, even if there were strong reasons for believing
that they constituted a war crime. Secondly, and quite apart from that, even if
international law required such an investigation, the requirement cannot be implied
into the common law.
Customary international law
113. So far as my first reason is concerned, it appears to be common ground that
it is only within the past 25 years that international law recognised a duty on states
to carry out formal investigations into at least some deaths for which they were
responsible and which may well have been unlawful. Thus, the earliest document to
which the appellants have made reference in this connection is in UN General
Assembly Resolution 60/147 of 16 December 2005 on The Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious Violations of International
Humanitarian Law. Article 3(b) provides that “[t]he obligation to ensure respect for
and implement international human rights law and international humanitarian law
as provided for under the respective bodies of law, includes, inter alia, the duty to
… [i]nvestigate violations effectively, promptly, thoroughly and impartially and,
where appropriate, take action against those allegedly responsible in accordance
with domestic and international law”.
114. The first case in which the Strasbourg court suggested that there was such a
duty was in 1995 in McCann v United Kingdom (1995) 21 EHRR 97. And, as the
respondents point out, Lord Steyn in McKerr at para 52, suggested that it was
probably “unrealistic” to suggest that what he called “the procedural obligation”,
namely the duty to investigate unlawful deaths “was already part of customary
international law” in 1982.
115. However, the appellants argue that, given that it is now part of customary
international law that suspected unlawful killings, and in particular war crimes,
should be formally investigated, the fact that the Killings took place before this was
part of customary international law no longer presents them with a problem. In the
absence of any treaty provisions, clear case law or authoritative academic support
for this proposition, I would reject that argument.
116. The appellants’ argument thus involves a fresh duty being imposed on a state,
sometime between 1990 and 2005 by customary international law, to investigate any
war crime, indeed any suspicious death, which amounts to a violation of human
rights law or of humanitarian law, which may have occurred within its jurisdiction
in the past. I regard it as unlikely that such a duty has been imposed by customary
Page 30
international law, but, even if it has been, it must be subject to a cut-off date.
Otherwise, the duty would extend to deaths which occurred literally centuries ago.
In the unlikely event that a fresh retrospective duty was imposed sometime after
1995, it seems to me that the furthest that such a duty could go would be ten years
back – which would be an unprincipled but arguably practical solution, which has
the merit of having been adopted by the Strasbourg court, as already explained. On
any view, I regard it as inconceivable that any such duty could be treated as
retrospective to events which occurred more than 40 years earlier, or could be
revived by reference to events which took place more than 20 years before that.
Incorporation into the common law
117. Even if this conclusion turned out to be wrong, and it is now a principle of
customary international law that a state must investigate deaths such as the Killings,
even though they occurred as long ago as 1948, it would not be right to incorporate
that principle into the common law. Parliament has expressly provided for
investigations into deaths (i) through the coroners’ courts in the Coroners and
Justices Act 2009, and its predecessors, and (ii) through inquiries in the 2005 Act,
and its subject-specific predecessor statutes. It has also effectively legislated in
relation to investigations into suspicious deaths through the incorporation of article
2 in the 1998 Act. In those circumstances, it appears to be quite inappropriate for
the courts to take it onto themselves, through the guise of developing the common
law, to impose a further duty to hold an inquiry, particularly when it would be a duty
which has such potentially wide and uncertain ramifications, given that it would
appear to apply to deaths which had occurred many decades – even possibly
centuries – ago.
118. This conclusion receives strong support from four of the five opinions given
in McKerr, whose authority on this point has in no way been diminished by any of
the judgments in McCaughey. At para 30, Lord Nicholls, with whom Lord Rodger
agreed, said that he had “grave reservations about the appropriateness of the
common law now fashioning a free-standing positive obligation of this far-reaching
character”, namely “a common law obligation to arrange for an effective
investigation into [a suspicious] death”, simply because it was required by article 2.
However, he specifically rejected the notion of such a common law obligation on
the ground that it “would create an overriding common law obligation on the state,
corresponding to article 2 … in an area of the law for which Parliament has long
legislated”, namely coroners’ inquests.
119. At para 71, Lord Hoffmann, with whom Lord Rodger also agreed, as did Lord
Brown, rejected the notion that there was “a broad common law principle equivalent
to article 2 against which the whole of the complex set of rules which governed the
earlier investigations can be tested and by which they can be found wanting and be
ordered to be rerun under different rules”. He added that “the very notion of such a
Page 31
principle, capable of overriding detailed statutory and common law rules, is alien to
the traditions of the common law”. Lord Brown also rejected the notion that the
court should “condemn as contrary to the common law a series of procedures long
since properly concluded in accordance with well-established domestic laws and
never challenged save by reference to a substantially later European Court decision”.
120. Lord Steyn’s position was a little different. At para 51, he referred to the fact
that it would be necessary to take into account the fact that inquests were dealt with
by statute. However, he considered that it was inappropriate for the common law to
extend the law on investigating suspicious deaths given that “the right to life is
comprehensively protected under article 2 … as incorporated in our law by the 1998
Act”. However, he did then suggest that “[t]he impact of evolving customary
international law on our domestic legal system is a subject of increasing
importance”.
121. However, the views of the other four Lords of Appeal were clear, and
strongly supportive of the conclusion I have reached on this issue.
122. In these circumstances, I would reject the contention that customary
international law, through the medium of the common law, requires the UK
government to hold an inquiry into the Killings. I also agree with the more general
remarks made by Lord Mance in paras 144-151 of his judgment in connection with
the extent to which the common law incorporates principles of customary
international law. I should add that it may well be that the appellants’ argument on
this basis should also be rejected on the ground of delay: the issue was briefly
canvassed in the respondents’ written case, but it did not feature significantly in oral
argument, and it is unnecessary to rule on it.
The appellants’ case based on common law
Introductory
123. The appellants’ final point is that, given that the respondents had a discretion
under section 1 of the 2005 Act as to whether to order an inquiry into the Killings,
the court should decide that they should have ordered an inquiry, and they should
now be directed to do so.
124. In their first and principal decision letter, that of 29 November 2010, the
respondents explained why they had decided not to order an inquiry into the
Killings. In summary form, this letter made the following points:
Page 32
a) Under section 2 of the 2005 Act an inquiry was not permitted to
determine criminal or civil liability;
b) Establishing the truth is more likely to be important in relation to
recent events;
c) The Killings took place against a different legal backdrop, both
domestically and internationally, and any conclusions about the
training and command structure of the Scots Guards in 1948 were
unlikely to be of practical value today, unlike other recent public
inquiries into suspicious deaths;
d) Although the documentary burden would probably be relatively light,
collecting evidence in Malaysia was likely to be costly and there
would be other running costs;
e) An inquiry would face obvious difficulties as there was a conflict of
evidence, those directly involved had mostly died, and the survivors
were in their 80s, and witnesses would have difficulty in recalling
events over 60 years ago;
f) An inquiry would, as the appellants contended, need to consider the
extent to which race was a factor in the Killings and subsequent events,
but any conclusion that those events were tainted by race prejudice
would be unlikely to assist in eliminating discrimination now;
g) An investigation could be good for race relations but internal
Malaysian relations are primarily for the Malaysian Government and
any possible benefit to UK-Malaysian race relations was not a
sufficient basis for the holding of an inquiry;
h) There was no reliance on the sufficiency of any previous criminal
investigations, or the availability of civil remedies.
125. The subsequent letter of 4 November 2011 was written following the
respondents’ consideration of further arguments from the appellants’ solicitor,
largely arguing that an inquiry was required to investigate the shortcomings of
previous investigations. The respondents considered that the inadequacies of the
previous investigations were not themselves sufficient reason to hold an inquiry
now. Apart from reiterating many of the points in the earlier letter, the respondents
pointed out that inquiring into the earlier investigations would involve yet more
Page 33
expense, and added that it was doubtful whether much light could be thrown on the
earlier investigations, given how long ago they had been undertaken.
126. The appellants argue that, although the respondents had a discretion under
section 1 of the 2005 Act as to whether to order an inquiry in 2010/2011 into the
Killings (and the subsequent events), the discretion is subject, in principle, to
challenge in court, and that, on the facts of this case, the decision in question was
wrong in law and should accordingly be quashed.
127. There is no more fundamental aspect of the rule of law than that of judicial
review of executive decisions or actions. Where a member of the executive, such as
the respondents in this case, is given a statutory discretion to take a particular course
or action, such as ordering an inquiry under section 1 of the 2005 Act, the court has
jurisdiction to overrule or quash the exercise of that discretion. However, the
exercise of that jurisdiction is circumscribed by very well established principles,
which are based on the self-evident propositions that the member of the executive is
the primary decision-maker, and that he or she will often be more fully informed
and advised than a judge. The area covered by judicial review is so great that it is
impossible to be exhaustive, but the normal principle is that an executive decision
can only be overruled by a court if (i) it was made in excess of jurisdiction, (ii) it
was effected for an improper motive, (iii) it was an irrational decision, or, as it is
sometimes put, a decision which no rational person in the position of the decisionmaker could have taken, or (iv) the decision-maker took into account irrelevant
matters or failed to take into account relevant matters. An attack on an executive
decision based on such grounds is often known as a Wednesbury challenge (see
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223).
If one or more of these grounds (which often overlap to some extent) is or are
satisfied, the court may (but need not in every case) quash the decision. If none of
these grounds is satisfied, then the decision will almost always stand.
The argument based on rationality
128. In what was an impressive and otherwise full judgment, the Court of Appeal
gave this argument of the appellants very short shrift, saying at [2015] QB 57, para
118:
“The case for the claimants is that the reasoning set out in the
two decision letters cannot survive a Wednesbury challenge.
We totally disagree. We are satisfied that the Secretaries of
State considered everything which they were required to
consider; did not have regard to any irrelevant considerations;
and reached rational decisions which were open to them.
Indeed, when considered in the domestic legal context of
discretion, we do not think that any other Secretaries of State
Page 34
would have been likely to reach a different conclusion at this
stage.”
129. With the exception of the last sentence of that paragraph (as to which I would
prefer to express no opinion), I agree with that analysis. The respondents clearly
considered the request for an inquiry seriously and rejected it for reasons which are
individually defensible and relevant, and which cumulatively render it impossible to
characterise their conclusion as unreasonable, let alone irrational. There is no
suggestion that the decision not to hold an inquiry was tainted in any other way, and
accordingly, applying classic judicial review principles, I consider that the decision
cannot be impugned.
130. The appellants point out that there has been no quantification of the likely
cost of an inquiry, but that does not meet the point that it will clearly cost a
significant amount of money, especially bearing in mind the likelihood of live
evidence and argument, visits to Malaysia, and exhuming and examining the bodies
of the victims. Indeed, I strongly suspect that preparing a budget for such an
enterprise would be difficult and the result very unreliable. The appellants point out
in this connection that some preliminary work has been done through previous
investigations, but that appears to us to cut both ways: it may mean that some
preliminary investigations have been made, it also means that there will be more
material to process, to compare with other evidence, and to put to witnesses. The
appellants also suggest that the inquiry would have little difficulty in reaching a
conclusion that the Killings were unlawful, but, as the Divisional Court said at para
142, it is “no longer … permissible to conclude … on the evidence available at the
present time … that the 24 men were shot when trying to escape”. Equally, as the
court immediately went on to say, in the light of the evidence which has come to
light since 1969, “[n]or can the conclusion now be reached that the 24 men were
deliberately executed. There is evidence that supports both accounts”.
The argument based on proportionality
131. The appellants raise the argument that the time has come to reconsider the
basis on which the courts review decisions of the executive, and in particular that
the traditional Wednesbury rationality basis for challenging executive decisions
should be replaced by a more structured and principled challenge based on
proportionality. The possibility of such a change was judicially canvassed for the
first time in this jurisdiction by Lord Diplock in Council of Civil Service Unions v
Minister for the Civil Service [1985] AC 374, 410E, and it has been mentioned by
various judges in a number of subsequent cases – often with some enthusiasm, for
instance by Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State for
the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295,
para 51. In other words, the appellants contend that the four-stage test identified by
Lord Sumption and Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC
Page 35
39, [2014] AC 700, paras 20 and 74 should now be applied in place of rationality in
all domestic judicial review cases.
132. It would not be appropriate for a five-Justice panel of this court to accept, or
indeed to reject, this argument, which potentially has implications which are
profound in constitutional terms and very wide in applicable scope. Accordingly, if
a proportionality challenge to the refusal to hold an inquiry would succeed, then it
would be necessary to have this appeal (or at any rate this aspect of this appeal) reargued before a panel of nine Justices. However, in my opinion, such a course is
unnecessary because I consider that the appellants’ third line of appeal would fail
even if it was and could be based on proportionality.
133. The move from rationality to proportionality, as urged by the appellants,
would appear to have potentially profound and far-reaching consequences, because
it would involve the court considering the merits of the decision at issue: in
particular, it would require the courts to consider the balance which the decisionmaker has struck between competing interests (often a public interest against a
private interest) and the weight to be accorded to each such interest – see R (Daly)
v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532,
para 27, per Lord Steyn. However, it is important to emphasise that it is no part of
the appellants’ case that the court would thereby displace the relevant member of
the executive as the primary decision-maker – as to which see per Lord Sumption
and Lord Reed in Bank Mellat (No 2) at paras 21 and 71 respectively. Furthermore,
as the passages cited by Lord Kerr from Kennedy v Charity Commission (Secretary
of State for Justice intervening) [2014] UKSC 20, [2015] AC 455, paras 51 and 54,
and Pham v Secretary of State for the Home Department (Open Society Justice
Initiative intervening) [2015] UKSC 19, [2015] 1 WLR 1591, paras 96, 113 and 115
show, the domestic law may already be moving away to some extent from the
irrationality test in some cases.
134. As those cases suggest, even if the appellants’ attack on rationality as the
correct yardstick were to succeed, it may be that the position would be more nuanced
than this cursory discussion of the appellants’ argument might suggest. The answer
to the question whether the court should approach a challenged decision by reference
to proportionality rather than rationality may depend on the nature of the issue – see
for instance the discussion by Gertrude Lübbe-Wolff in The Principle of
Proportionality in the Case Law of the German Federal Constitutional Court (2014)
34 HRLJ 12.
135. Turning to this case, the reasons for not holding an inquiry are as set out in
the two letters, whose contents are summarised in paras 124 and 125 above. The
reasons advanced on behalf of the appellants in favour of having an inquiry are that
it is appropriate to explore the evidence publicly “and seek … to identify the truth”,
and to “grant to the survivors and relatives a form of ‘closure’ to this matter that
Page 36
would be enormously valuable”. They suggest that an inquiry would be the only way
of testing the official version of what happened on 11/12 December 1948, and of
“address[ing] this injustice which has endured for decades and will rightly not go
away”. They further argue that an inquiry could lead to “a correction of the official
record, a public apology, a public memorial, and active consideration of some ex
gratia compensation”.
136. It is impossible not to sympathise with these sentiments. But in my opinion,
these understandable reasons for holding an inquiry do not justify a court concluding
that the respondents’ decision to refuse an inquiry for the reasons summarised in
paras 124 and 125 above was disproportionate. The desire to discover “historical
truth” is understandable, particularly in a case where it involves investigating
whether a serious wrong, indeed a war crime, may have been committed. However,
not only is this a case where neither article 2 nor customary international law would
require such an investigation. It is also a case where the relevant members of the
executive have 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, even if the appellants’ expectations to the contrary were
met, there would be little useful that could be learned from an inquiry so far as
current actions and policies were concerned.
137. The notion that there is a positive common law duty to investigate the
Killings in the present case, even though they took place nearly 70 years ago, simply
in order to establish historical truth would, at least without more, open the door to
demands that all suspicious deaths, however long ago, would have to be
investigated. The notion that the duty is owed to those whose relatives were killed
or may remember the incident has more force, but that is not a powerful enough
reason, in my view, to enable the court to say that, despite the reasons advanced by
the respondents for not holding an inquiry, it was disproportionate to refuse to do
so. It is not as if the appellants have got nowhere: in these proceedings, the
Divisional Court, the Court of Appeal and now this court have all said in terms that
the official UK Government case as to the circumstances of the Killings may well
not be correct and that the Killings may well have been unlawful. And the events of
1969-1970, at least to large extent, speak for themselves.
138. As for the argument that an inquiry is justified because of what is said, in
effect, to be a “cover-up”, I see the force of the argument in relation to the immediate
aftermath of the Killings and the decision in 1970 not to proceed with the
investigation. However, it seems to me that the appellants’ reliance on the events of
those two periods suffers from the same sorts of problems as an inquiry into the
Killings themselves. There would be obvious difficulty, given the passage of time,
at arriving at the truth – or, perhaps more accurately, at any more of the truth than
the documents already show. And the value of any further information or analysis
of the events of the aftermath or in 1969-1970 in terms of lessons for the present day
must be limited at best. In addition, the benefits for the survivors and the relations
Page 37
of the victims would be limited. So far as the events after 1990 are concerned, I am
unconvinced that there is anything to look into. The concerns about the value of an
inquiry currently raised by the respondents would have largely applied then.
139. It is the respondents who have the primary role of deciding under section 1
of the 2005 Act whether to have an inquiry into the Killings, and if not why not, and
it is not for the court to substitute its view for that of the respondents. What the court,
on the instant hypothesis, must do is to decide whether, bearing in mind the reasons
for and against holding an inquiry, the respondents’ refusal to hold an inquiry was
disproportionate. In my view, it was not.
140. The respondents did not specifically raise the argument that the appellants’
common law claim was in difficulty for the additional reason of delay. It is
nonetheless worth mentioning that, for the reasons discussed in paras 105-107
above, there may well be a powerful case for saying that, if the appellants wished
the respondents to hold an inquiry into the Killings, they could and should have
requested it in 1970 or 1971. Accordingly, it may be that the fact that the appellants
can be said to have delayed for 40 years before seeking an inquiry and have only
then judicially reviewed the respondents’ refusal to hold one, is a strong factor
against now granting them any relief in that connection. However, given that the
point was not developed in argument by the respondents, it would be unfair on the
appellants to rely on the point, and I say no more about it.
Conclusion
141. For these reasons, I would dismiss this appeal.
LORD MANCE: (with whom Lord Neuberger, Lady Hale, Lord Kerr and
Lord Hughes agree on the jurisdiction issue)
142. I have read and agree generally with the reasoning and conclusions in the
judgment given by Lord Neuberger. This judgment adds a footnote (in paras 144-
151 below) to his observations in paras 112-122 on the incorporation of customary
international law into the common law, and, more substantively, addresses (in paras
152-202 below) the issue of jurisdiction, to which Lord Neuberger refers in para 65.
143. As to whether the refusal to direct an inquiry should be reviewed in terms of
proportionality, Lord Kerr quotes views which I have already expressed in the
context of the issues in Kennedy v Charity Commission (Secretary of State for
Justice intervening) [2014] UKSC 20; [2015] AC 455 and Pham v Secretary of State
for the Home Department (Open Society Justice Initiative intervening) [2015]
Page 38
UKSC 19; [2015] 1 WLR 1591. In the context of, and in order to decide this appeal,
all that is necessary to say is that I agree with Lord Neuberger and Lord Kerr that
there is no ground for treating the refusal of an inquiry as either Wednesbury
unreasonable or disproportionate.
Incorporation of customary international law into common law
144. The basis and extent to which customary international law (“CIL”) is
received into common law was not examined in great detail in the parties’
submissions before us. The appellants described obligations on the United Kingdom
under CIL as “a source of domestic law”. Both the appellants and the respondents
referred in their cases to Lord Denning MR’s description of the doctrine of
incorporation which he went on to endorse in Trendtex Trading Corp v Central Bank
of Nigeria [1977] QB 529, 553: “the rules of international law are incorporated into
English law automatically and considered to be part of English law unless they are
in conflict with an Act of Parliament”. Lord Denning was clearly only speaking of
CIL, not treaty law which raises quite different considerations.
145. However, as the appellants went on to recognise at least this further
qualification exists in relation to CIL, beyond that stated by Lord Denning, namely
that:
“The recognition at common law must itself not abrogate a
constitutional or common law value, such as the principle that
it is Parliament alone who recognises new crimes: R v Jones
(Margaret) [2006] UKHL 16, [2007] 1 AC 136 at para 29.”
Even that principle was only one of the reasons why the House held in R v Jones
(Margaret) that the international crime of aggression could not form part of English
law. The second reason, expressed in the speech of Lord Hoffmann with which all
other members of the House agreed, was the constitutional reason that a domestic
court could not adjudicate upon the question whether the state of which it formed
part had acted unlawfully in the course of exercising the Crown’s discretionary
powers in the making of war and disposition of the armed forces: paras 63-67.
146. The position is therefore somewhat more nuanced than Lord Denning MR’s
statement might suggest. Common law judges on any view retain the power and
duty to consider how far customary international law on any point fits with domestic
constitutional principles and understandings. Thus, in a number of other cases prior
to R v Jones (Margaret), courts have rejected suggestions that CIL had expanded
the ambit of domestic criminal law: see eg R v Keyn (1876) 2 Exch Div 63, 202, et
seq and Chung Chi Cheung v The King [1939] AC 160. Although both cases
involved criminal liability, neither case highlighted this as a critical distinction when
Page 39
discussing whether CIL should be regarded as part of domestic law. Thus, in the
latter case, Lord Atkin said simply at p 168:
“The courts acknowledge the existence of a body of rules
which nations accept amongst themselves. On any judicial
issue they seek to ascertain what the relevant rule is, and,
having found it, they treat it as incorporated into the domestic
law, so far as it is not inconsistent with rules enacted by statutes
or finally declared by their tribunals.”
147. In Trendtex, Lord Denning was addressing a distinction between two
doctrines, according to which CIL is seen as becoming part of domestic law either
by incorporation or by transformation. Lord Denning adopted the former view. He
went so far as to say that, unless the doctrine of incorporation applied, “I do not see
that our courts could ever recognise a change in the rules of international law”: p
554C-D. That seems an unduly, and coming from its speaker perhaps surprisingly,
restrictive view of the developmental authority of common law judges. But the
background against which Lord Denning uttered it was reasoning of the majority
(from which Lord Denning had dissented) in the prior Court of Appeal decision of
Thai-Europe Tapioca Service Ltd v Government of Pakistan, Directorate of
Agricultural Supplies [1975] 1 WLR 1485, suggesting that CIL rules incorporated
into domestic law by decisions of a domestic court were subject to the ordinary rules
of stare decisis. On that basis, once they had been recognised at Court of Appeal
level (as the rules of state immunity have been), they would be capable of alteration
only by the House of Lords.
148. Several points may be made about Lord Denning’s adoption of the doctrine
of incorporation. First, it needs qualification as stated in paras 144-145 above.
Second, even as regards civil aspects of CIL, Lord Wilberforce in I Congreso del
Partido [1983] 1 AC 244, 261G-262A expressly avoided “commitment to more of
the admired judgment of Lord Denning MR” than was necessary. Similarly, in R v
Jones (Margaret), at para 59, Lord Hoffmann, with whom all other members of the
House agreed, and I, at para 100, also expressly left open the basis on which CIL is
relevant under domestic law. Third, nearly 40 years after Trendtex and in an era
where precedent is unlikely to be seen as so great an obstacle to reconsideration of
domestic law in the light of international developments, the difference in effect of
the two doctrines is unlikely to be as significant as it may have seemed in 1977.
Even in 1977 Stephenson LJ made a similar point: p 569D – although it is right to
add that he was the one member of the court who regarded the prior Court of Appeal
authority of Thai-Europe as precluding any relaxation of the existing rules of state
immunity. A similar observation to Stephenson LJ’s is found in Nulyarimma v
Thompson [1999] FCA 1192 in para 109 of the judgment of Merkel J (whose
disagreement as to whether the CIL crime of genocide was to be regarded as a
domestic crime does not affect the judgment’s general force).
Page 40
149. When and if it is ever necessary to consider further the precise basis on and
extent to which CIL may become part of domestic law, all three judgments on this
point in Nulyarimma v Thompson will repay study. It is clear that there are different
views, even though the differences may prove more apparent than real. As at present
advised, and without having heard argument on the point, there seems likely to be
wisdom in Wilcox J’s statements in para 25 that “it is difficult to make a general
statement covering all the diverse rules of international customary law” and in para
26, after distinguishing civil and criminal cases as different classes, that “Perhaps
this is only another way of saying that domestic courts face a policy issue in deciding
whether to recognise and enforce a rule of international law”.
150. Speaking generally, in my opinion, the presumption when considering any
such policy issue is that CIL, once established, can and should shape the common
law, whenever it can do so consistently with domestic constitutional principles,
statutory law and common law rules which the courts can themselves sensibly adapt
without it being, for example, necessary to invite Parliamentary intervention or
consideration.
151. However, in the present case and for the reasons given by Lord Neuberger in
para 112, it would be inappropriate for English courts to import the suggested CIL
principle regarding the holding of an inquiry in respect of events in 1948 into
domestic law, because Parliament has effectively pre-empted the whole area of
investigations into historic deaths. Domestic courts cannot or should not in such
circumstances recognise or import a principle which would be wider and would
extend to cover events further back in time than would be covered by the inquiries
provided by such legislation and/or by the Human Rights Convention.
Jurisdiction
152. The issue of jurisdiction has two strands: the first, whether the United
Kingdom can be said to have been responsible for whatever happened in Batang
Kali on 11/12 December 1948; the second, whether it can be held responsible for
not holding an inquiry now. These strands are relevant under the Convention rights,
as incorporated into domestic law, to the question whether there were failures by the
United Kingdom “to secure to everyone within [its] jurisdiction”, within the
meaning of article 1 of the Convention, any of the rights and freedoms defined in
article 2 of the Convention, so as to make the United Kingdom potentially
responsible for breach of the Convention Rights as incorporated into domestic law
by the Human Rights Act 1998. But both strands are also potentially relevant to the
claims that an inquiry should now be held by reference to international law and/or
under common law principles of judicial review.
153. As to the first strand, the respondents’ case is that, while the Scots Guards
were on active service in Selangor, they were acting under the aegis of the
Page 41
constitutional arrangements in force in the Federation of Malaya or, alternatively, in
the State of Selangor, and that any acts on their part were always attributable either
to His Majesty in right of the Federation or to The Sultan as the Ruler of the State
of Selangor, rather than to His Majesty in right of the United Kingdom. In drawing
this distinction, the respondents rely on R (Quark Fishing Ltd) v Secretary of State
for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529.
154. As to the second strand, the respondents’ case is that any liabilities or
obligations which the Crown in right of the United Kingdom may have had prior to
1957 passed in that year to the new independent Federation and/or that the Crown
cannot now have come under any duty to hold an inquiry in relation to the Killings
which had occurred in Selangor in 1948. In support of this second strand of their
submissions, the respondents rely on the Federation’s independence since 1957
and/or on article 167 of the Federal Constitution of 1957.
Constitutional arrangements of and in relation to Malaya and Selangor
155. To consider these submissions, it is necessary to analyse the constitutional
arrangements which existed in Malaya at the relevant times. At the date of the deaths
in December 1948, Selangor was a state ruled by its Sultan whose relations with His
Majesty King George VI were governed by the Selangor Treaty of 21 January 1948.
Also on 21 January 1948, it had become one of nine Malay States which, together
with two British colonies (Malacca and Penang) constituting the Straits Settlements,
were party to the Federation of Malaya Agreement made between the Sultans of the
Malay States and His Majesty.
156. The Selangor Treaty, along with similar treaties with the Sultans of the other
eight Malay States, and the Federation of Malaya Agreement were the subject of
The Federation of Malaya Order in Council 1948 (SI 1948/108) made on 26 January
1948, laid before the United Kingdom Parliament on 27 January 1948 and coming
into force on 1 February 1948. The Order scheduled the Treaties with the Sultans of
Selangor and the other Malay States and the Federation Agreement.
157. The Selangor Treaty provided by clause 3(1) that:
“His Majesty shall have complete control of the defence and of
all the external affairs of the State of Selangor and His Majesty
undertakes to protect the Government and State of Selangor
and all its dependencies from external hostile attacks and for
this and other similar purposes His Majesty’s Forces and
persons authorised by or on behalf of His Majesty’s
Government shall at all times be allowed free access to the
Page 42
State of Selangor and to employ all necessary means of
opposing such attacks.”
By clause 4, the Sultan undertook
“to receive … a British Adviser to advise on all matters
connected with the government of the state other than matters
relating to the Muslim Religion and the Custom of the Malays,
and undertakes to accept such advice.”
The Treaty also contemplated expressly the entry into force of the Federation
of Malaya Agreement.
158. The Federation of Malaya Agreement recited that it had “been represented to
His Majesty that fresh arrangements should be made for the peace, order and good
government of the Malay States” in the form of the Federation, which was “to take
effect on such day as His Majesty may, by Order in Council, appoint …”. Clause 3
established the Federation, while clause 4 provided that:
“His Majesty shall have complete control of the defence and of
all the external affairs of the Federation and undertakes to
protect the Malay States from external hostile attacks and for
this and other similar purposes, His Majesty’s Forces and
persons authorised by or on behalf of His Majesty’s
Government shall at all times be allowed free access to the
Malay States and to employ all necessary means of opposing
such attacks.”
159. Clause 7 provided for a High Commissioner in and for the Federation to be
appointed “by Commission under His Majesty’s Sign Manual and Signet”, while
clause 8 provided that:
“Their Highnesses the Rulers undertake to accept the advice of
the High Commissioner in all matters connected with the
government of the Federation save as excepted in clause 5 of
this Agreement [that is, “matters relating to the Muslim
Religion or the Custom of the Malays”]: Provided that nothing
in this clause shall in any way prejudice the right of any of
Their Highnesses to address His Majesty through a Secretary
of State, if any of Their Highnesses so desires.”
Page 43
160. Clause 13 provided:
“His Majesty may from time to time give to the High
Commissioner Instructions, either under His Majesty’s Sign
Manual and Signet, or through a Secretary of State, for the due
performance, or the proper exercise of the powers, duties and
rights of the High Commissioner under, and in conformity
with, this Agreement; but no law made under this Agreement
shall be void or inoperative by reason of anything contained in
such Instructions.”
161. With regard to executive authority, the Agreement provided:
“Extent of executive authority.
16. Subject to the provisions of this Agreement, and in
particular without prejudice to the provisions of clauses 18, 86
and 110 thereof, the executive authority of the Federation shall
extend to all matters set out in the first column of the Second
Schedule to this Agreement.
Exercise of executive authority.
17. The executive authority of the Federation shall be
exercised by the High Commissioner either directly or through
officers subordinate to him, but nothing in this clause shall
prevent the Legislative Council from conferring functions upon
persons or authorities other than the High Commissioner within
the powers given to it by this Agreement.
Delegation of executive authority.
18. Notwithstanding anything in this Agreement, the High
Commissioner may entrust, either conditionally or
unconditionally, to the government of any Malay State with the
consent of His Highness the Ruler of that state, or to the
government of a Settlement, or to their respective officers,
functions in relation to any matter to which the executive
authority of the Federation extends.
Special responsibilities.
Page 44
19. (1) In the exercise of his executive authority, the High
Commissioner shall have the following special responsibilities,
that is to say:
(a) the protection of the rights of any Malay State or
any Settlement and of the rights, powers and dignity of
Their Highnesses the Rulers;
(b) the prevention of any grave menace to the peace
or tranquillity of the Federation or any Malay State or
Settlement comprised therein;” …
162. Clause 48 further provided:
“Subject to the provisions of this Agreement, it shall be lawful
for the High Commissioner and Their Highnesses the Rulers,
with the advice and consent of the Legislative Council, to make
laws for the peace, order and good government of the
Federation with respect to the matters set out in the Second
Schedule to this Agreement and subject to any qualifications
therein.”
Under clause 52, the High Commissioner could if he considered it expedient “in the
interests of public order, public faith or good government” force through any law
which the Legislative Council had failed to enact.
163. The matters set out in the first column of the Second Schedule, in respect of
which the High Commissioner had executive authority under clauses 16 and 17 of
the Federation Agreement and the Federal Legislature had power to make laws
under clause 48, included Defence and External Affairs:
“DEFENCE AND EXTERNAL AFFAIRS
1(a). All matters relating to defence including (a) naval,
military or air forces of His Majesty; local forces, any armed
forces which are not forces of His Majesty but are attached to
or operating with any of His Majesty’s forces within the
Federation …
2. External Affairs …
Page 45
CIVIL AND CRIMINAL LAW AND PROCEDURE,
EQUITY, EVIDENCE, COURTS, CORPORATIONS,
EMERGENCY POWERS

15. Emergency powers, emergency legislation; trading with the
enemy; enemy property …”
164. Under the powers contained in clause 48 read with the Schedule 2 paragraph
15, the High Commissioner and the Rulers with the advice and consent of the
Legislative Council on 7 July 1948 enacted the Emergency Regulations Ordinance,
No 10 of 1948 “to confer on the High Commissioner power to make regulations on
occasions of emergency or public danger”. The High Commissioner declared a state
of emergency on 12 July 1948, and, in pursuit of the powers contained in the
Ordinance, issued Emergency Regulations on 15 July 1948. Regulation 21
authorised any police officer of or above the rank of Sub-Inspector without warrant
and with or without assistance to enter and search any premises and to stop and
search any vessel, vehicle or individual, whether in a public place or not. Regulation
24 authorised a police officer to arrest and detain any person who on being
questioned failed to satisfy the officer as to the purposes for which he was where he
was found and who the officer suspected had acted or was about to act in any manner
prejudicial to the public safety and the maintenance of public order.
165. Regulation 27 provided that:
“The powers conferred upon police officers by Regulations 21,
22(1)(a) and 23 may be exercised by any member of His
Majesty’s Naval, Military or Air Forces or of any Local Forces
established under any written law of or above the rank of
Warrant Officer, and the powers conferred by Regulations
22(1)(b): and 24(1) may be exercised by any member of His
Majesty’s Naval, Military or Air Forces or of any Local Forces
established under any written law.”
166. The Order in Council made on 26 January 1948 started with these recitals:
“Whereas by the Foreign Jurisdiction Act 1890, it was,
amongst other things, enacted that it should be lawful for His
Majesty to hold, exercise and enjoy any jurisdiction which His
Majesty then had or might at any time thereafter have within a
foreign country in the same and as ample a manner as if His
Page 46
Majesty had acquired that jurisdiction by the cession or
conquest of territory: And whereas His Majesty has full power
and jurisdiction within the Malay States of Johore, Pahang,
Negri Sembilan, Selangor, Perak, Kedah, Perils, Kelantan and
Trengganu (hereinafter referred to as ‘the Malay States’): …”
167. The Order in Council went on to provide by section 4 that “In pursuance of
the Federation Agreement there shall be established a Federation …”, by section 5
that “The provisions of the Federation Agreement shall have the force of law
throughout the territories comprised in the Federation” and by section 6 that:
“The High Commissioner is hereby empowered and
commanded to do all things belonging to his Office in
accordance with this Order, the Federation Agreement, such
Commission as may be issued to him under His Majesty’s Sign
Manual and Signet and such Instructions as may from time to
time be given to him by His Majesty under His Sign Manual
and Signet or through a Secretary of State, and in accordance
with such laws as may from time to time be in force in the
Federation or any part thereof.”
Detailed instructions were on 26 January 1948 passed under the Royal Sign Manual
and Signet to the High Commissioner relating to matters including the legislative
council contemplated by the Federation Agreement.
168. According to Notifications published in the Federation of Malaya
Government Gazette dated 28 November 1949, His Majesty had “for the better coordination of measures for the maintenance and protection of the interests in SouthEast Asia of our Government in the United Kingdom” at some point before mid1948 appointed a Commissioner-General “to advise Our said Government
concerning such matters in respect of Burma, Siam, French Indo-China and the
Netherlands East Indies (hereinafter referred to as ‘the Foreign Territories’) …”,
while from May 1946, Malcolm MacDonald had been Governor-General “in and
over the Malayan Union (now the Federation of Malaya), the Colony of Singapore
…”. By Commission passed under the Royal Sign Manual and Signet on 10 August
1948 His Majesty appointed Malcolm MacDonald as Commissioner-General in
South-East Asia “to discharge the functions hitherto discharged by the said
Governor-General and to extend the area of his authority to embrace the Federation
of Malaya, the Colonies of Singapore, Sarawak, North Borneo, the Protected State
of Brunei, and such other territories, being parts of Our dominions or under Our
protection, as We may direct …”, and to exercise such authority and perform such
duties as might be specified in such instructions as he might receive “from Us under
our Sign Manual and Signet or through one of Our Principal Secretaries of State or
as may be prescribed by law”.
Page 47
169. Prior to the Commission dated 10 August 1948, exchanges between the
Commissioner-General for South-East Asia and London dated 26 June and, 8 and
12 July 1948 show the Commissioner-General reporting on “the nature and
dimensions of the present internal security problem and the measures necessary to
combat it as agreed by the Defence Co-ordination Committee held on 24 June with
the Governor of Singapore and the High Commissioner of the Federation attending”.
These included references to “police action with military support”, the military
support being at that stage, it appears, two battalions of the Malay Regiment and one
squadron of the Royal Air Force Regiment (Malay). The Commissioner’s
communication dated 12 July 1948 recorded that:
“There is a very close liaison and co-ordination between the
police and military at all levels and in each state and settlement
the Chief Police Officer retains final decision of responsibility
for law and order. In most affected areas in the Federation
troops are taking a very big share in evacuation operations, but
we are maintaining the principle that military are acting in aid
of civil power. Except in static guard duties troops operate with
an element of police presence whenever possible. There is
excellent understanding between police and military staffs in
both the Federation and Singapore and no difficulties seems to
be arising regarding their respective roles.”
170. By telegram on 9 August 1948, the Defence Co-ordination Committee
recommended the dispatch of a brigade of the British Army to Malaya as
reinforcements, saying that:
“In arriving at this conclusion we have taken into account – (i)
the vital need from the point of view of British prestige, civil
morale, and the maintenance of the economy of the Federation
of bringing the operations in Malaya to a successful conclusion
as early as possible. …”
171. At a Cabinet meeting on 13 August 1948 it was resolved to proceed urgently
with this. The decision was taken after the Chief of Imperial General Staff, FieldMarshal Viscount Lord Montgomery of Alamein, said that:
“In Malaya the trouble was not only of local origin, but was
instigated by Chinese Communists and kept going by
communist reinforcements from across the Siamese border ….
Moreover our own nationals were being killed. We could not
stand this nor could we afford to lose Malaya to Communism.
His conclusion was that we should … send immediate help to
the Far East. …”
Page 48
The brigade, part of which comprised the Second Battalion of the Scots Guards, duly
arrived in Singapore in October 1948, and after three weeks training was sent to
areas of the Federation where “bandit activity” was reported, including in the case
of G Company of the Second Battalion, Kuala Kubu Bahru.
172. The establishment and existence of the British army was authorised by the
Army Act, which was brought into force annually by a more specific Act and recited
at the relevant times that:
“Whereas the raising or keeping of a standing army within the
United Kingdom in time of peace, unless it be with the consent
of Parliament, is against law:
And whereas it is adjudged necessary by His Majesty and this
present Parliament that a body of land forces should be
continued for the safety of the United Kingdom and the defence
of the possessions of His Majesty’s Crown …
71. … His Majesty may … make regulations as to the persons
to be invested as officers, or otherwise, with command over His
Majesty’s forces … and as to the mode in which such command
is to be exercised.”
173. The King’s Regulations 1940 provided inter alia:
“6. The government of the Army is vested in the Crown. The
command of the Army is placed in the bands of the Army
Council, who are also responsible for the administration of the
regular forces. …
28. The governor of a colony, protectorate or mandated
territory is the single and supreme authority responsible to and
representative of His Majesty. He is, by virtue of his
commission, and the letters patent, entitled to the obedience
and assistance of all military and civil officers, but, although
bearing the title of captain-general or commander-in-chief, and
although he may be a military officer, senior in rank to the OC
the forces, he is not, except on special appointment from His
Majesty, invested with the command of His Majesty’s forces in
the colony, protectorate or mandated territory. He is not,
therefore, entitled to take the immediate direction of any
military operations, …”
Page 49
174. The European Convention on Human Rights came into force for the United
Kingdom on 3 September 1953, and was under article 56 extended by the United
Kingdom to the Federation of Malaya on 23 October 1953.
175. In 1957 the Federation of Malaya became an independent sovereign country
within the Commonwealth. The arrangements for this were made by the Federation
of Malaya Independence Act 1957 and the Federation of Malaya Independence
Order in Council No 1933 of 1957. The Act provided:
“1. (1) Subject to the provisions of this section, the approval
of Parliament is hereby given to the conclusion between Her
Majesty and the Rulers of the Malay States of such agreement
as appears to Her Majesty to be expedient for the establishment
of the Federation of Malaya as an independent sovereign
country within the Commonwealth.
(2) Any such agreement as aforesaid may make provision
(a) for the formation of the Malay States and of the
Settlements of Penang and Malacca into a new
independent Federation of States under a Federal
Constitution specified in the agreement, and for the
application to those Settlements, as states of the new
Federation, of State Constitutions so specified;
(b) for the termination of Her Majesty’s sovereignty
and jurisdiction in respect of the said Settlements, and
of all other Her power and jurisdiction in and in respect
of the Malay States or the Federation as a whole, and the
revocation or modification of all or any of the provisions
of the Federation of Malaya Agreement, 1948, and of
any other agreements in force between Her Majesty and
the Rulers of the Malay States.”
176. The Order in Council gave effect as from 31 August 1957 to a new Federal
Constitution contained in the First Schedule, and revoked the Federation of Malaya
Orders in Council 1948 to 1956. Article 167(1) of the Constitution provided:
“Rights, liabilities and obligations.
Page 50
167. (1) Subject to the provisions of this article, all rights,
liabilities and obligations of –
(a) Her Majesty in respect of the government of the
Federation, and
(b) the government of the Federation or any public
officer on behalf of the government of the Federation,
shall on and after Merdeka [Independence] Day be the
rights, liabilities and obligations of the Federation.”
177. On and as from independence, the United Kingdom’s notification declaring
that the European Convention on Human Rights applied to the Federation of Malaya
as a territory for whose international relations it was responsible was withdrawn and
no longer applied.
Analysis
178. Against this background, I consider the two strands of the respondents’
submissions which I have summarised above. By the first strand, the respondents
argue that the British army was not acting in right of the United Kingdom in relation
to any of the killings. The respondents acknowledged in their skeleton argument
before the Court of Appeal that the Scots Guards were deployed to the Far East in
right of the United Kingdom, but they submitted then, and they repeat the
submission now, that what matters is the legal regime under which the Scots Guards
acted while in Malaya (para 33).
179. This regime is, they contend, to be found in the reservation to the Crown of
“complete control” over the defence and external affairs of Selangor as well as of
the Federation, pursuant to which the Crown not only undertook to protect Selangor
and the Malay States from external hostile attacks, but authority was also given “for
this and other similar purposes” for His Majesty’s Forces to “be allowed free access
to the [Malay States] and to employ all necessary means of opposing such attacks”.
More specifically, the activities of the Scots Guards were also authorised under
Federation law by the Emergency Regulations (paras 151-152 above). Alternatively,
they contend that, if the Scots Guards were not deployed in Selangor for such
purposes, then they were deployed for internal purposes, necessarily in aid of the
Sultan, who was obliged to follow the advice of the British resident adviser on such
a matter: see clause 4 of the Selangor Treaty of 1948 (para 157 above).
180. The appellants endorse the respondents’ primary contention, that the British
Army forces were deployed in Malaya to protect against external hostile attacks or
Page 51
“for other similar purposes” (written case, para 4.14). It also appears to accord with
the reality. The Malayan insurgency was part of an external threat, and British forces
were sent to assist in order to protect the Federation and its component parts against
that threat or for similar purposes.
181. The parties differ however in their analysis of the constitutional implications
of this conclusion. The respondents, invoking reasoning of Lord Bingham, Lord
Hoffmann and Lord Hope in Quark, submit that there is a distinction between Crown
action taken in right of the United Kingdom and in right of, or under the
constitutional regime applicable in, Malaya or alternatively Selangor. They argue
that the Crown’s authority over defence and external affairs was exercised or
“mediated” through the High Commissioner, exercising his powers in that regard
under the Federation Agreement, and that the Scots Guards were acting under the
constitutional authority of the Executive Government of the Federation and
exercising the emergency powers provided by the Emergency Regulations of 15 July
1948. The appellants submit that there was no need for any such mediation. The
Crown was in right of the United Kingdom simply entitled to deploy its forces in
the Federation to protect against external hostile attacks or for “similar purposes”.
182. Although this was not fully explored before us, both the distinction which the
respondents draw in reliance on reasoning in Quark, and its applicability, are open
to a number of questions. It can readily be accepted that, in relation to fully selfgoverning countries where the Queen remains Head of State, the Queen when acting
for example on the advice of her local ministers acts in right of her position as Head
of State of the relevant country, not as Head of State in the United Kingdom. But
(despite the width of the recitals in the Order in Council dated 26 January 1948) the
King was not the Head of State of either Selangor or the Malayan Federation. Hence,
no doubt, the respondents’ argument that the Crown’s intervention was mediated
through the High Commissioner as executive authority of the Federation or was
undertaken on behalf of the Sultan of Selangor. But even in situations where the
Crown is the Head of State the distinction drawn in Quark calls for further
consideration.
183. Quark concerned South Georgia and South Sandwich Islands (“SGSSI”), a
British Overseas Territory acquired originally by settlement, with a constitution
governed by an order in council, which provided for a Commissioner, who was, in
similar fashion to the High Commissioner of the Malayan Federation, bound under
section 5(1) to act “according to such instructions, if any, as Her Majesty may from
time to time see fit to give him through a Secretary of State”. By the Fishing
(Maritime Zone) Area Order 1993 and the Fisheries (Conservation and
Management) Ordinance 1993, the Commissioner declared, and introduced a
licensing scheme controlling fishing within, a maritime zone extending 200 nautical
miles from SGSSI. He further appointed a Director of Fisheries who was under his
direction. The Secretary of State instructed the Commissioner (who was in turn
required to direct the Director) to give two fishing licences in a way which precluded
Page 52
the grant to the claimant of a renewed licence. The claimant relied on article 1 of
Protocol 1 (“A1P1”) of the European Convention on Human Rights to claim
damages. A1P1 had not been extended to SGSSI by any notification under article
56 of the Convention. The claimant failed. Lord Bingham, Lord Hoffmann and Lord
Hope endorsed as one reason a submission (advanced as here by counsel for the
Secretary of State) that the Queen must be treated as having given the instructions
through the Secretary of State in right of SGSSI, rather than in right of the United
Kingdom.
184. Lord Nicholls and Baroness Hale did not endorse this reasoning, and they
and Lord Hoffmann and Lord Hope all concurred in a second reason, which was that
both in Strasbourg and under the Human Rights Act the absence of any notification
extending A1P1 to SGSSI under article 56 meant that the claim could not involve
any failure by the United Kingdom “to secure to everyone within [its] jurisdiction”
any Convention right within the meaning of article 1 of the Convention. The fact
that United Kingdom ministers had in reality control over the grant or refusal of
fishing licences in SGSSI was, in the absence of any such notification, not capable
of bringing the claim within article 1. It was this alternative line of reasoning which,
when Quark took their complaint to the European Court of Human Rights, led that
court unanimously to declare the application inadmissible: see Quark Fishing Ltd v
United Kingdom (Application No 15305/06) (unreported) given 19 September 2006.
185. The reasoning of Lord Bingham, Lord Hoffmann and Lord Hope in Quark
was the subject of a sharp critique by Professor John Finnis in a University of Oxford
Faculty of Law Legal Studies Research Paper, Common Law Constraints: Whose
Common Good Counts?, which was in turn considered by Lord Hoffmann in the
House’s later decision in R (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, paras 37-49.
Professor Finnis’s thesis was that “The United Kingdom and its dependent territories
within Her Majesty’s dominions form one realm having one undivided Crown” and
that, in contradistinction to the position of self-governing colonies, “in respect of
any dependency of the United Kingdom (that is, of any British overseas territory),
acts of Her Majesty herself are performed only on the advice of the United Kingdom
Government” – both quotations from Halsbury’s Laws of England, 4th ed re-issue
(2003) vol 6 para 716, specifically approved in Tito v Waddell (No 2) [1977] Ch
106, 231, per Megarry V-C and R v Secretary of State for Foreign and
Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB 892, 921-
922, per Kerr LJ.
186. Bancoult concerned the ability of a British court judicially to review an order
in council relating to the British Indian Overseas Territory (“BIOT”),
notwithstanding the provisions of the Colonial Laws Validity Act 1865. Having read
Professor Finnis’s paper, Lord Hoffmann said in Bancoult, paras 48-49, that he was
“inclined to think that the reason which I gave for dismissing the cross-appeal in
[Quark]” – that is that A1P1 had no application in the absence of any notification
Page 53
under article 56 – “was rather better than the reason I gave for allowing the Crown’s
appeal” – that is that the Crown had through the Secretary of State given the
instructions “in right of SGSSI, not the United Kingdom” – and that “on this Lord
Nicholls was right”. Lord Hoffmann also analysed the relevant order in council “not
simply as part of the local law of BIOT but, as Professor Finnis says, as imperial
legislation made by Her Majesty in Council in the interests of the undivided realm
of the United Kingdom and its non-self-governing territories”(para 40). The latter
aspect of its “amphibious nature”, as he put it, took it outside the scope of the
Colonial Laws Validity Act and made it capable of being reviewed judicially in the
British courts.
187. Lord Hoffmann’s revised views about the Crown’s position when exercising
powers on the advice of United Kingdom ministers in relation to dependent
territories and his views about the potentially “amphibious nature” of an order in
council relating to such a nature reinforce my conclusion that there is no reason to
attempt to justify the Crown’s military involvement in the Federation of Malaya in
1948 solely in terms of the Federation’s Constitution. The case for not doing so in
the present context is in fact a fortiori to that which, in the light of Professor Finnis’s
paper and Lord Hoffmann’s revised view, existed in relation to SGSSI and BIOT.
The Crown was, as I have pointed out, sovereign in SGSSI and BIOT. The Crown
was not sovereign in the Federation of Malaya or in any of the nine Malay States
including Selangor. It had powers in respect of external affairs, defence and the
deployment of the British army which were granted it under Treaty with each Malay
State and were reflected in the Federation Agreement. Those powers must have been
given to the King wearing the Crown of, and in the interests of, the United Kingdom.
There is no reason not to treat them as having simply been exercised in that capacity
and for that purpose, on the advice of United Kingdom ministers. All the indications
are that this is the basis on which they were exercised.
188. While on active service in Malaya, the Scots Guards remained His Majesty’s
forces and under the command of the Crown exercised through the Army Council
in accordance with the King’s Regulations: see para 164 above. There was no
question of their secondment to any other authority. Neither the CommissionerGeneral in South-East Asia nor the High Commissioner for the Federation appears
actually to have had any right of command over them. The fact that their members
may not have served under any contract of service is irrelevant to the present issue
whether the appellants’ complaints relating to their alleged activities in Selangor
involve alleged failure by the United Kingdom “to secure to everyone within [its]
jurisdiction” the rights and freedoms in article 2 of the Convention.
189. By 1953 the Convention was in force and had been extended by notification
under article 56 to the Malayan Federation. Once the Convention came into force
and was so extended, the second strand of reasoning in Quark, based on the absence
of any such notification, can no longer directly apply. The fact of notification,
coupled with the United Kingdom’s control over its armed forces on active service
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in Selangor, mean that the deaths in December 1948 occurred in circumstances
within the United Kingdom’s jurisdiction, within the meaning involved in article 1
of the Convention, if and to the extent that that article applies. Those who died were
at the time within the British Army’s control, and this would continue to be so, even
if they were fired upon as they were seeking to escape.
190. Under the Convention, the question next arising is one of timing: can the
United Kingdom be regarded as responsible for failure to hold an inquiry into deaths
which occurred in December 1948 before the Convention was in force at all, let
alone extended to the Federation? I have concluded that the deaths in December
1948 would have occurred within the United Kingdom’s jurisdiction within the
meaning of article 1, had the Convention been in force in Malaya in 1948. On that
basis, and because the gap in time between the deaths and the extension to the
Malayan Federation of the Convention, was less than ten years, a sufficient temporal
link exists between the deaths and the critical date to satisfy the test laid down in the
Strasbourg case law, particularly Janowiec v Russia (2013) 58 EHRR 792. Under
international law, there would arise a parallel, though relatively unexplored, issue of
timing, which Lord Neuberger mentions in para 117 but which it is unnecessary to
resolve on this appeal. As a matter of purely common law judicial review, the length
of time since the deaths is a relevant discretionary factor.
191. That brings me to the second strand of the issue of jurisdiction, which arises
from the Federation’s achievement of full independence in 1957. As at and from that
date, it was provided by article 167(1) of the Federal Constitution, given effect by
the Federation of Malaya Independence Order in Council No 1933 of 1957 that “all
rights, liabilities and obligations of … Her Majesty in respect of the government of
the Federation … shall on and after [Independence] Day be the rights, liabilities and
obligations of the Federation”: see paras 166-167 above. The United Kingdom also
ceased to have any right of intervention in the face of external threats or in respect
of defence and the notification under article 56 of the Convention extending the
Convention to the Federation ceased to apply. The respondents contend on this basis
that the United Kingdom cannot after 1957 have come under any duty to hold an
inquiry into what occurred in December 1948.
192. Perhaps unsurprisingly, we were shown little material to guide us on the
resolution of this strand of the overall issue. But I am not persuaded by the
respondents’ submission that the grant of full independence in 1957 relieved the
United Kingdom of any potential obligation, otherwise arising towards alleged
victims of alleged pre-1957 misconduct by the United Kingdom army, to hold an
inquiry into such misconduct. A first question is whether any potential liability or
obligation to hold an inquiry into the deaths in December 1948 can be said to be “in
respect of the government of the Federation” at all. I have considerable doubt
whether it can be. Once it is concluded that the British army was in Malaya in the
service of His Majesty and in the interests of the United Kingdom, I have difficulty
in regarding it as acting “in respect of the government of the Federation”, even
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though it was there to protect Selangor and the Malay States from external hostile
attacks or for similar purposes: see paras 170-171 and 178 above. However, I need
not rest my conclusions on this sole basis.
193. Assuming that the conduct of the British army in Malaya was “in respect of
the government of the Federation”, and any potential duty to hold an inquiry into
such conduct likewise, the question is whether and how the constitutional
arrangements made between the Federation and the United Kingdom on the
Federation’s independence can affect any domestic law duty which the United
Kingdom would otherwise have towards victims to hold an inquiry into or, in
appropriate circumstances, to pay compensation in respect of prior misconduct by
the British army.
194. I do not see how they could, even if the deaths can be regarded as occurring
during the course of governmental activities which were in 1948 the responsibility
of the United Kingdom but were transferred in 1957 to the Malayan Federation.
State succession is an area of international law which is neither easy nor well
covered by authority. Brownlie’s Principles of Public International Law 8th ed
(2012), p 442 summarises the position as follows:
“The preponderance of authority is in favour of a rule that
responsibility for an international delict is extinguished when
the responsible state ceases to exist either by annexation or
voluntary cession. Such liability is considered ‘personal’ to the
responsible state and remains with the state if it continues to
exist after the succession. This reasoning is, however, less
cogent in relation to voluntary merger or dissolution. Nor does
it apply when a successor state accepts the existence of
succession. In the Lighthouses Arbitration [(1956) 23 ILR 81]
it was held in connection with one claim that Greece had by
conduct adopted an unlawful act by the predecessor state and
recognised responsibility.”
195. The principle stated in the first sentence is illustrated in domestic law by West
Rand Central Gold Mining Co v The King [1905] 2 KB 391, in which the King’s
Bench Divisional Court held that there was no principle of international law by
which, after annexation or conquest, a conquering state could become liable, absent
express contrary stipulation, to discharge the financial liabilities of the conquered
state incurred before the outbreak of war.
196. The principle of acceptance or adoption, referred to in the last two sentences
of the passage in Brownlie, also appears in Mwandingi v Ministry of Defence,
Namibia [1991] 1 SA 851 (Nm). The High Court of Namibia there held the Ministry
of Defence of Namibia liable for the alleged wrongful shooting of the claimant by
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the South African Defence Force prior to Namibian independence. It based its
decision on article 140 of the Constitution of Namibia, providing that everything
done by the government of South Africa should be deemed to have been done by
the government of Namibia.
197. If the conduct of the British army in December 1948 can be regarded as being
“in respect of the government of the Federation”, it might be said to have been
adopted by the Federation by article 167(1) of the 1957 Constitution. But I do not
see how or why adoption by the Federation as a successor state should at the same
time release the United Kingdom in domestic, or even international, law vis-à-vis
the victims of such conduct. Apart from adoption, the general rule which appears is
that state liability for a death remains with the state responsible for the deaths, so
long as that state exists, and does not pass to a successor state which takes over the
relevant territory or activities. Different arrangements made as between the United
Kingdom and the Federation should not on any view affect the rights which victims
otherwise have against the United Kingdom domestically, whether such domestic
rights arise by reference to the Convention rights, international law or pure common
law principles.
198. Assuming that the deaths in December 1948 were and remain the United
Kingdom’s responsibility domestically, responsibility for any inquiry now called for
into them must prima facie also remain with the United Kingdom. It is true that the
inquiry is claimed by persons who are now clearly not within the United Kingdom’s
control, in relation to an incident in a place which is now equally clearly outside the
United Kingdom’s jurisdiction; and, further, that much of the evidence and material
which could or would be relevant is and is only in Malaysia, which is outside the
jurisdiction. But any inquiry would relate to the deaths of persons who were at the
time under United Kingdom control, and to the conduct of the British army which
was and is within United Kingdom jurisdiction. More specifically it would relate to
the conduct of Scots Guards who were under United Kingdom command and within
United Kingdom jurisdiction (and one or two of whom are still alive and understood
to be within such jurisdiction). When a death of a person under British military
control occurs abroad, any subsequent inquiry will often involve seeking
information from sources in different jurisdictions at the date of the inquiry.
199. So far as concerns the Convention, any duty on the part of the United
Kingdom under article 2 to hold an inquiry in accordance with the principles in
Janowiec is an independent duty. This is so although it requires a triggering event,
such as a death occurring at a time when the individual complainants could rely on
the Convention or within a short period (with a maximum of ten years) prior to
whenever that became possible. In either case, the duty to hold an inquiry may arise
from or, in the language of Janowiec, be “revived” by the discovery of relevant new
matter, whereupon a claim to an inquiry may be pursued, within the appropriate time
limit for making such a claim after the duty has arisen or revived.
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200. For there to be a Convention duty to hold an inquiry, this must be necessary
“to secure to [some]one within [the United Kingdom’s] jurisdiction” the rights and
freedoms defined in article 2. But this cannot and does not mean that the
beneficiaries of the inquiry must be within the jurisdiction when the inquiry is
sought. The focus must be on whether the inquiry relates to an incident involving
someone within the United Kingdom’s jurisdiction. In the light of my conclusions
on the first strand of the overall issue of jurisdiction, that was and is here the case.
201. As to the problem that the subject-matter of any inquiry would be the conduct
of British troops in what is now a fully independent country, that is no new
phenomenon, having regard to the United Kingdom’s experience in Iraq and
Afghanistan. Dividing and tailoring of a Convention obligation to secure
Convention rights relevant to an individual was recognised as possible in Al-Skeini
v United Kingdom (2011) 53 EHRR 589, para 137, when “a state, through its agents,
exercises control and authority over an individual, and thus jurisdiction”. If other
conditions were satisfied, I see no reason why the United Kingdom should not be
required to hold an inquiry under article 2 in respect of the events in Selangor in
December 1948, on the basis that the inquiry could and would be tailored and limited
to what was feasible, having regard inter alia to such co-operation as might be
obtained from the Malaysian authorities. Similarly, if an inquiry were required by
reference to international law and/or as a matter of purely common law judicial
review, the United Kingdom could not be expected to do more than was feasible.
202. For these reasons, I would reject the respondents’ case on both strands of the
issue of jurisdiction, and hold that, had the other conditions for ordering an inquiry
been satisfied, there would be no jurisdictional obstacle to doing so.
LORD KERR:
203. The response that the law ought to make to a claim that an historical wrong
should be legally recognised and redressed involves a recurring and multi-faceted
challenge. That challenge can arise in a myriad of contexts – the prosecution of
sexual offences perpetrated years or even decades before proceedings come to court;
the quashing of convictions long after they were first made against a person whose
innocence is established by subsequently obtained evidence; and the holding of an
inquest into someone’s death years after it occurred, when new evidence touching
on the death has come to light. These are but a few examples of cases where the law
has had to confront the need to revisit disputes which had been considered settled or
which were said to have occurred too long ago to countenance their revival.
204. This appeal involves precisely such a challenge. The shocking circumstances
in which, according to the overwhelming preponderance of currently available
evidence, wholly innocent men were mercilessly murdered and the failure of the
authorities of this state to conduct an effective inquiry into their deaths have been
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comprehensively reviewed by Lord Neuberger in his judgment and require no
further emphasis or repetition. It is necessary to keep those circumstances and that
history firmly in mind, however, in deciding how our system of law should react to
the demand of the relatives of those killed that the injustice that has been perpetrated
should be acknowledged and accepted.
205. Three possible gateways to the vindication of the appellants’ claim have been
dealt with by Lord Neuberger: via article 2 of the European Convention on Human
Rights and Fundamental Freedoms (ECHR); under customary international law, as
incorporated into the common law; and by the invocation of the principle of
proportionality as a basis for judicial review in the municipal law of this country.
Article 2
206. It would be a mistake, I believe, to view the applicability of article 2 solely
in terms of whether it has retrospective effect. This provision carries with it a duty,
complementary to the obligation to protect life, of investigating any death occurring
in suspicious circumstances. That duty does not arise as a matter of retroactive
obligation. If article 2 applies, the obligation to investigate the death is a current
imperative.
207. As Lord Neuberger has observed (para 66) the respondents accept that, if
article 2 applies to these deaths, there is an existing obligation to carry out an inquiry
that meets its requirements. That duty has been variously described as “separate”,
“autonomous” or “detachable” from the primary obligation under article 2. It has an
existence which is distinct from that primary obligation. The assertion that an article
2 inquiry is not required does not rest, therefore, on the claim that no contemporary
duty exists but on the essentially pragmatic basis that, for procedural reasons, it is
not appropriate that an inquiry be held. This is important. In principle an inquiry into
the deaths that is compliant with article 2 should be held. But it is claimed that that
prima facie position should give way because a bright line rule is required to restrict
the backward reach of article 2. The foundation of that claim is, as I have said,
pragmatic rather than principled. That consideration should form the background to
an examination of the Strasbourg jurisprudence in this area.
208. The detachable nature of the duty to investigate; the fact that this is not
inextricably bound up with the primary duty to protect the right to life, underlay the
ECtHR’s decision in Šilih v Slovenia (2009) 49 EHRR 996. This is fundamental to
a proper understanding of the correct approach to take to the trilogy of issues which
arise: the “critical date” on which a member state will be considered bound by its
treaty commitments; the relevant acts and omissions after the critical date; and the
genuine connection between the death and the critical date. On one view, these are
no more than arbitrarily selected standards which might rather than must inform
consideration of whether a member state should be required to conduct an article 2
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compliant inquiry into a death which occurred before the Strasbourg court acquired
formal temporal jurisdiction. There is no inescapable point of principle, for instance,
which requires the adoption of a ten-year period as the absolute limit on the period
between the death and the critical date. The desirability of a rule, whether it be
described as a bright line rule or a rule of thumb, is obvious, however. Where
feasible, states should have some indication from the ECtHR as to when their article
2 duty is likely to arise. And there has to be some limit on how far back that duty
extends. Practicability of inquiry must play a part in the evaluation.
209. Before turning to consider in detail the particular decisions of the ECtHR in
this area, a general observation may be made. It is not appropriate, in my opinion,
to seek to derive from the Strasbourg jurisprudence rigid rules that might be
supposed to provide infallible answers to the questions that arise as to whether
deaths occurring before the critical date should be subject to an article 2 inquiry. The
evolutionary development of the procedural right under article 2 is alone sufficient
to establish the inaptness of such an approach. Convention rights do not generally
lend themselves to the application of inflexibly prescriptive rules. This is especially
true of article 2 rights.
The critical date
210. Although the respondent adumbrated four possible dates that might qualify
as the “critical date” – (i) the date of signing the Treaty establishing ECHR, (1950);
(ii) the date of ratification, (1951); (iii) the date of entry into force in the United
Kingdom of the Convention, (1953); and (iv) the date on which individual petition
was granted, (1966), on the hearing of the appeal, the dispute concerning the critical
date issue centred on two possibilities. The first of these was the date on which the
Convention came into force in the United Kingdom, 3 September 1953, (or when it
was extended to the Confederation of Malaya, 23 October 1953). The second
possibility was the date on which the United Kingdom gave its citizens the right of
personal petition to the Strasbourg court – 14 January 1966. Lord Neuberger has
decided that the case law of the ECtHR favours the latter date and I can understand
how that view can be reached in light of some of the statements made by the ECtHR.
There are some contrary indications to be found in other statements and, in the light
of these, I have concluded that Strasbourg case law does not point indisputably in
the direction of the date of personal petition being the critical date. There is reference
in the Strasbourg jurisprudence which can be interpreted as supporting the view that
the date on which the United Kingdom became bound by the Convention (1953)
should be regarded as the critical date.
211. What does the coming into force of treaty obligations such as those contained
in ECHR entail? In the case of the United Kingdom it must surely involve this
country’s acceptance that it is bound by and agrees to abide by the terms of the
Convention. The date on which the Convention came into force in the United
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Kingdom must be the date when this country formally accepted that it was bound to
comply with the rights enshrined in ECHR including those contained in article 2.
Now that it is recognised that that duty comprehends a freestanding obligation to
conduct an inquiry into suspicious deaths, in 1953, on the coming into force of the
Convention, the United Kingdom was, as a matter of international law, bound to
conduct an inquiry into the deaths involved in these appeals. Can it be said, in those
circumstances, that the critical date did not arrive for another 12 years?
212. In my view, there is no clear and constant line of jurisprudence emerging
from the Strasbourg court that would support the notion that, although the United
Kingdom had, from 1953, an international obligation to conduct an article 2 inquiry
into these deaths, the Strasbourg court’s temporal jurisdiction did not come into
existence until 1966. Before the Court of Appeal the respondents did not argue that
the critical date was 1966. On the contrary, at para 13 of the skeleton argument
submitted by the respondents for the Court of Appeal hearing it is stated, “… the
critical date … would be in a Strasbourg case … the date on which the United
Kingdom ratified the ECHR.”
213. That the respondents did not espouse 1966 as the critical date is not surprising
in light of the Strasbourg jurisprudence and, incidentally, observations made by this
court In re McCaughey [2011] UKSC 20; [2012] 1 AC 725 – see paras 62, 78, 101,
112.
214. One may begin the review of ECtHR case law with Blečić v Croatia (2006)
43 EHRR 1038. In considering statements made in that case about the temporal
jurisdiction of the Strasbourg court it is to be remembered that the decision was
given before the detachable duty to investigate suspicious deaths had been
recognised. Leaving that aside, however, it is clear that support for either of the
contended for critical dates can be discerned from the court’s discussion about its
temporal jurisdiction. Thus in para 70 the court said:
“… in accordance with the general rules of international law,
the provisions of the Convention do not bind a contracting
party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into
force of the Convention with respect to that party.” (emphasis
added)
215. But in para 71 the court referred to declarations made under former articles
25 and 46 of the Convention by which Croatia “recognised the competence of the
Convention organs to deal with individual petitions based on facts occurring after
the Convention and its Protocols had come into force in respect of Croatia” which
might appear to suggest that the critical date was that on which the right of an
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individual to present a personal petition was recognised. (This was, of course, the
same date as the ratification of the Convention by Croatia.)
216. Lord Neuberger has relied on the statement in para 140 of the Grand
Chamber’s judgment in Šilih in support of his conclusion that the critical date is the
grant of the right of individual petition (paras 80 and 81 above). Two observations
may be made about this. Firstly, the Grand Chamber in para 140 canvassed two
possible candidates for the critical date – the coming into force of the Convention
or the entry into force of Protocol No 11, whereby the right of individual petition
was recognised. The Grand Chamber did not say that the critical date was
necessarily the later of these possibilities. Often, as in the case of Slovenia, these
dates coincide. It is, to my mind, therefore, by no means clear that the Grand
Chamber in para 140 purported to lay down a general rule that if the grant of the
right of individual petition post-dated the coming into force of the Convention, it
was the later event that must be regarded as marking the critical date. The Grand
Chamber had no need to address that issue since the two events (the coming into
force of the Convention and the grant of a right to individual petition) occurred at
the same time.
217. Secondly, later statements in Šilih are consistent with the view that the critical
date is in fact the date of entry into force of the Convention rather than the date of
the grant of the right of individual petition. Thus in para 165, the Grand Chamber
said, “… the court notes that the death of the applicants’ son occurred only a little
more than a year before the entry into force of the Convention in respect of Slovenia
…” and in para 166, “The court notes and the government did not dispute that the
applicants’ procedural complaint essentially related to … judicial proceedings
which were conducted after the entry into force of the Convention …” (emphasis
added in both instances).
218. I accept that the Grand Chamber’s decision in Varnava v Turkey (Application
Nos 16064-16066/90 and 16068-16073/90) (unreported) given 18 September 2009,
represents a rather more forthright endorsement of the grant of the right of individual
petition as the critical date. In paras 132-134 the court said:
“132. Turkey ratified the Convention on 18 May 1954; it
accepted the right of individual petition on 28 January 1987 and
the jurisdiction of the old court on 22 January 1990. Protocol
No 11, which brought the new court into existence, came into
force on 11 January 1998.
133. Turkey was accordingly bound by the provisions of the
Convention from 18 May 1954. However, its acceptance of the
right of individual petition was limited to facts taking place
after the date of the declaration to that effect on 28 January
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1987. When the old court ceased to function in 1998, this
court’s jurisdiction became obligatory and ran from the
acceptance by a Contracting State of the right of individual
petition. It follows that the court is not competent to examine
any complaints raised by these applicants against Turkey in so
far as the alleged violations are based on facts having occurred
before 28 January 1987 (see Cankocak v Turkey (Application
Nos 25182/94 and 26956/95), para 26, 20 February 2001, and
Demades v Turkey (just satisfaction) (Application No
16219/90), para 21, 22 April 2008).
134. On that basis, any complaints by the applicants asserting
the responsibility of the Contracting State for factual events in
1974 are outside the court’s temporal jurisdiction. In so far as
any complaints are raised concerning acts or omissions of the
Contracting State after 28 January 1987, the court may take
cognisance of them. It notes in this respect that the applicants
specified that their claims related only to the situation
pertaining after January 1987, namely the continuing failure to
account for the fate and whereabouts of the missing men by
providing an effective investigation.”
219. The Grand Chamber’s statement that the court’s jurisdiction became
obligatory and ran from the acceptance by a Contracting State of the right of
individual petition is not supported by any analysis. And, as Lord Neuberger has
acknowledged, that statement is incidental to the decision in the case because the
court found that the nature of the procedural obligation to investigate disappearances
was such that, potentially, it persisted as long as the fate of the person who had
disappeared was unaccounted for; the ongoing failure to provide the requisite
investigation was therefore regarded as a continuing violation.
220. Interestingly, an argument deployed by the government of Cyprus (an
intervener in Varnava) which was recorded at para 128 of the judgment does not
appear to have been dealt with by the Grand Chamber. It was to the effect that the
applications could not be said to concern Turkey’s responsibility for acts or
omissions at a time when it had not accepted the Convention. The disappearances
had occurred in 1974 and from 1954 onwards Turkey could have been subject to
proceedings begun by other contracting parties. If this argument is right (and I
cannot see any reason that it is not) it illustrates the true nature of the “correct date”
concept. It should be seen as a gateway that is concerned principally with the
backward reach of article 2, not simply with the enforceability of an individual right
under that provision. On one view, it would be anomalous that a country’s failure to
conduct an article 2 inquiry would come within the Strasbourg court’s temporal
jurisdiction at the suit of another member state but that it should not be amenable to
that jurisdiction on an application by the next-of-kin of the person whose death was
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the subject of the application. As against that, however, it might be thought to be
incongruous that ECtHR should be able to assume jurisdiction to adjudicate in a
dispute between citizen and state before the right of individual petition had even
been conferred.
221. An example of the choice of the entry into force alternative can be found,
however, in the case of Dorado v Spain (Application No 30141/09) (unreported)
given 27 March 2012. The Convention entered into force in Spain on 4 October
1979. The right of individual petition became applicable to that country on 1 July
1981. Notwithstanding this, the Third Section of the ECtHR in held that the critical
date was the entry into force of the Convention. At para 32 the court said:
“The court emphasises that the provisions of the Convention do
not bind a Contracting Party in relation to any act or omission
which took place or any situation which ceased to exist before
the date of the entry into force of the Convention with respect
to that Party (“the critical date” —see Blečić v Croatia [GC]
(Application No 59532/00), para 70, ECHR 2006-111; Šilih v
Slovenia [GC], (Application No 71463/01), para 140, 9 April
2009; and Varnava and Others v Turkey [GC], (Application
Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90,
16070/90, 16071/90, 16072/90 and 16073/90), para 130,
ECHR 2009-…).” (emphasis added)
222. Significantly, the court included Varnava among the decisions which, it
suggested, supported the proposition that the Convention was binding at the date of
its entry into force in the relevant member state. And, lest it be thought that the
failure to identify the time of the grant of the right to individual petition as the critical
date was inadvertent, it should be noted that the two dates (coming into force and
right of individual petition) were expressly referred to in paras 34 and 39 of the
judgment.
223. In Janowiec v Russia (Application Nos 55508/07 and 29520/09) (2013) 58
EHRR 792, the Grand Chamber again considered the question of the temporal
jurisdiction of the court. The statement in para 128 of the court’s judgment, quoted
by Lord Neuberger at para 71 above, that “… the provisions of the Convention do
not bind a Contracting Party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the
Convention with respect to that Party (the critical date)” is expressed in unqualified
terms.
224. Lord Neuberger has said that, despite these seemingly clear words, the issue
is not disposed of by the judgment in Janowiec because Russia had acceded to the
Convention on the same date that it gave its citizens the right of personal petition to
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Strasbourg. But if the choice between the two possible candidates for the critical
date is a stark one (and it has been so portrayed throughout this appeal), then the fact
that the two events occurred on the same day cannot explain why the court chose to
identify the entry into force of the Convention as the critical date. If it was clear that
the grant of the right to individual petition marked the critical date, why has the court
in Janowiec omitted to say so? Why should it state that the critical date was the time
of the entry into force of the Convention, if this was merely an incidental
circumstance?
225. The point has been made that if the Grand Chamber in the subsequent
decision in Janowiec had considered that what was said in para 140 of Šilih was
wrong, it would surely have said so. This, of course, depends on one’s view of the
import of that paragraph. For the reasons given at paras 206 and 207 above, I do not
accept that the court in Šilih decided that the date of the grant of the right to an
individual petition was the critical date. There was no need, therefore, for the court
in Janowiec to make any adverse observation on para 140 of Šilih.
226. In Çakir and others v Cyprus (Application No 7864/06), (unreported) given
29 April 2010, an admissibility decision, the court referred on a number of occasions
to the date on which Cyprus accorded the right of individual petition as the critical
date. Lord Neuberger regarded this as highly significant, pointing out in para 84 of
his judgment that this was the date that had been chosen by the court rather than the
date on which Cyprus had acceded to the Convention. In the section of the judgment
entitled “The Law”, however, the court said:
“The court emphasises that the provisions of the Convention do
not bind a Contracting Party in relation to any act or omission
which took place or any situation which ceased to exist before
the date of the entry into force of the Convention with respect
to that Party or, as the case may be, before the date on which
the respondent Party recognized the right of individual petition
(“the critical date” – see Blečić v Croatia [GC], (Application
No 59532/00), para 70, ECHR 2006 III; Šilih v Slovenia [GC],
(Application No 71463/01), para 140, 9 April 2009; and
Varnava and others v Turkey [GC], (Application Nos
16064/90, 16065/90, 16066/90, 16068/90, 16069/90,
16070/90, 16071/90, 16072/90 and 16073/90), para 130,
ECHR 2009 …).” (emphasis added)
227. Again, therefore, the decision in Çakir does not unmistakably endorse the
time of the grant of personal petition as the only possible critical date. In my view,
the least that can be said of the relevant ECtHR case law is that it certainly does not
provide unequivocal support for the view that the critical date is in every instance
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the date on which the right to present an individual petition to the Strasbourg court
has been granted by a member state.
228. What then should this court’s conclusion on the critical date be? Two
interrelated issues must be addressed in order to answer this question. The first
concerns the significance which should attach to the absence of clear guidance from
Strasbourg on whether the critical date should be the date of entry into force of the
Convention or the date of the grant of the right of individual petition. The second
issue is whether the approach to the backward reach of the Convention obligation
should be approached in the same way by a national court as it is by the ECtHR, in
light of the fact that this court must deal with the question as a matter of domestic
law.
229. Part, at least, of the interrelationship between these two issues stems from the
fact that national courts in this country give effect to (or refuse to give effect to)
Convention rights as a matter of domestic law. The Human Rights Act 1998
introduced to the law of the United Kingdom the European Convention on Human
Rights and Fundamental Freedoms. But it did so by making the Convention part of
national law so that the rights became domestic rights. Because the rights are
domestic, they must be given effect according to the correct interpretation of the
domestic statute. As Lord Hoffmann said In re G (Adoption: Unmarried Couple)
[2008] UKHL 38; [2009] AC 173, para 34, “[the courts’] first duty is to give effect
to the domestic statute according to what they consider to be its proper meaning,
even if its provisions are in the same language as the international instrument which
is interpreted in Strasbourg”.
230. There are, of course, sound practical and policy reasons that our national
courts should follow decisions of the ECtHR. Perhaps the most important of these
was touched on by Lord Hoffmann in para 35 of In re G:
“The best reason is the old rule of construction that when
legislation is based upon an international treaty, the courts will
try to construe the legislation in a way which does not put the
United Kingdom in breach of its international obligations. If
Strasbourg has decided that the international Convention
confers a right, it would be unusual for a United Kingdom court
to come to the conclusion that domestic Convention rights did
not …”
231. Lord Hoffmann mentioned what Lord Bingham had said in the earlier case
of R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323. In para 20
of his speech in that case Lord Bingham had uttered the fateful line that has become
the source of much judicial controversy, “The duty of national courts is to keep pace
with the Strasbourg jurisprudence as it evolves over time: no more but certainly no
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less”. This gave life to the so-called mirror principle whereby the content and
character of rights in the UK national sphere should precisely match Strasbourg
pronouncements. The sentence is much quoted as is, what has been described as,
“the characteristically stylish twist” that was put on it by Lord Brown in R (AlSkeini) v Secretary of State for Defence (The Redress Trust intervening) [2007]
UKHL 26; [2008] AC 153, para 106 where he said that the sentence “could as well
have ended: ‘no less, but certainly no more’”.
232. In Ullah Lord Bingham was careful to refer to the interpretation of the
Convention (as opposed to the interpretation of HRA) but his opinion in that case
has been used in a number of subsequent judgments to support the proposition that
the content of domestic rights under HRA should not, as a matter of principle, differ
from those pronounced by Strasbourg. Indeed, his judgment has been construed as
indicating that, unless the ECtHR has given clear guidance on the nature and content
of a particular Convention right, the national courts of the UK should refrain from
recognising the substance of a claimed entitlement under ECHR.
233. So, for instance, in Al-Skeini Lord Brown suggested that where the ECtHR
had not spoken, our courts should hold back, explaining that, if it proved that
Convention rights have been denied by too narrow a construction, the aggrieved
individual can have the decision corrected in Strasbourg. And in R (Smith) v
Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission
intervening) [2010] UKSC 29; [2011] 1 AC 1 Lord Phillips followed a similar line.
I have expressed my disagreement with that approach in Ambrose v Harris
Procurator Fiscal [2011] UKSC 43; [2011] 1 WLR 2435 but must immediately
acknowledge that mine was the sole dissenting judgment in that case. Since then,
however, judgments have been given in which a departure from a rigid application
of the mirror principle is discernible.
234. In Rabone v Pennine Care NHS Foundation Trust (INQUEST intervening)
[2012] UKSC 2, [2012] 2 AC 72 it was held that there was a positive obligation to
protect the life of a mentally ill young woman who had been admitted to hospital
informally because of serious attempts to take her own life. This decision was
reached notwithstanding the fact that there was no authority from the ECtHR to that
effect. In Surrey County Council v P (Equality and Human Rights Commission
intervening) [2014] UKSC 19; [2014] AC 896, para 62 Lord Neuberger said that
where there was no Strasbourg authority which dealt precisely with the issues before
this court, this court could rely on principles expressed by the ECtHR, even if only
indirectly relevant, and apply them to the cases which it had to decide. At para 86
of that case, I reiterated my view (first expressed in Ambrose) that this court had a
duty to determine whether a claim that a Convention right had been breached should
be accepted, even if Strasbourg had not yet pronounced upon it. And in Moohan v
Lord Advocate (Advocate General for Scotland intervening) [2014] UKSC 67;
[2015] AC 901 Lord Wilson suggested that there had been a “retreat” from the Ullah
principle which had led the court to “substantially” modify it. At para 105 he said:
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“… where there is no directly relevant decision of the ECtHR
with which it would be possible (even if appropriate) to keep
pace, we can and must do more. We must determine for
ourselves the existence or otherwise of an alleged Convention
right …”
235. If there is no clear guidance from Strasbourg on which of the alternatives
should be chosen as the critical date, in my view, this court should not be deterred
from forming its own judgment as to which is appropriate. I acknowledge, however,
that where the national court is required, as part of its decision on a Convention
issue, to address directly the question of what Strasbourg would decide (as opposed
to what the national court itself should decide), there is a need for caution, where
there is no or no clear guidance from the ECtHR on the question. This does not,
however, relieve the national court of its duty under section 6 of HRA to resolve the
dispute as to whether there has been a breach of a Convention right.
236. The decision in this case as to which date is to be preferred partakes of a twopronged inquiry. First, what the Strasbourg court would decide on the question of
its temporal jurisdiction, if presented with a stark choice between the date on which
the right of personal petition was granted by the member state and the date of entry
into force of the Convention. Secondly, whether this court should be influenced in
its decision as to its jurisdiction under the Human Rights Act by what it considers
the Strasbourg court would decide. This is the second issue identified in para 227
above.
237. One can recognise the force of the point made by Lord Neuberger at para 84
that, as a matter of first principle, the critical date, so far as the Strasbourg court is
concerned, should be linked to the date on which it is invested with the jurisdiction
by a member state to entertain personal petitions from that state’s citizens. As
against that, it seems to me that, from the date of entry into force of the Convention
in a member state, since it then assumed an international duty to abide by the terms
of ECHR, that duty was enforceable by another member state. Article 33 of ECHR
(previously article 24) provides for inter-state applications. In order to invoke this
procedure, it is not necessary for the complainant state to have been a victim. Rights
could be violated and inter-state enforcement actions could be taken long before the
right of individual petition was recognised in some member states. In light of this,
as I have said at para 220 above, it might be regarded as anomalous that the
individual actually affected by an alleged violation should not have the right to
enforce his or her right while another state could apply to the court for redress. But
it may be that this is an anomaly which simply must be accepted.
238. Whichever of the alternatives is chosen (the date of entry into force or the
date of the personal petition) it is clear that this is not to be regarded as an immutable
point from which no departure can be made. In the first place, as Lord Neuberger
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has explained, it is well settled in Strasbourg case law that a connection between the
“triggering event” and the critical date can, in certain circumstances, warrant
extending the temporal jurisdiction of the Strasbourg court back to that event. As
the ECtHR has made clear in, among other cases Janowiec, there must be relevant
acts or omissions after the critical date and “the period between the triggering event
and the critical date must remain reasonably short … [and while there was no] …
absolute limit on the duration of that period … it should not exceed ten years” (para
146).
239. If Strasbourg is willing to contemplate a backward reach of up to ten years
between the triggering event and the critical date, is it certain that ECtHR would not
be prepared to back-date the reach of the Convention to the date of its entry into
force in a particular member state? In my view, it is not. But it is by no means certain
that the court would be prepared to do so. Because of the need for caution, to which
I have adverted (in para 235 above), but not without some hesitation on my part, I
am not prepared to say that ECtHR would hold that the critical date was the entry
into force of the Convention or that the backward reach of the Convention should
be extended to that date. In the event, therefore, although Lord Neuberger and I are
not in precise agreement as to what Strasbourg would find, that disagreement does
not signify in terms of the present appeal. Either Strasbourg would find that the
critical date was the date on which the right to individual petition was conferred or
it is not clear that it would not so find. The consequence is the same in both scenarios.
240. A further matter requires to be considered, however. At para 149 of Janowiec
the Grand Chamber accepted “that there may be extraordinary situations which do
not satisfy the ‘genuine connection’ standard … but where the need to ensure the
real and effective protection of the guarantees and the underlying values of the
Convention would constitute a sufficient basis for recognising the existence of a
connection”. The type of ‘extraordinary situation’ in contemplation here was
explained by the court in para 150:
“… the Grand Chamber considers the reference to the
underlying values of the Convention to mean that the required
connection may be found to exist if the triggering event was of
a larger dimension than an ordinary criminal offence and
amounted to the negation of the very foundations of the
Convention. This would be the case with serious crimes under
international law, such as war crimes, genocide or crimes
against humanity, in accordance with the definitions given to
them in the relevant international instruments.”
241. At para 151, however, the court said this:
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“The court nonetheless considers that the ‘Convention values’
clause cannot be applied to events which occurred prior to the
adoption of the Convention, on 4 November 1950, for it was
only then that the Convention began its existence as an
international human-rights treaty. Hence, a Contracting Party
cannot be held responsible under the Convention for not
investigating even the most serious crimes under international
law if they predated the Convention. Although the court is
sensitive to the argument that even today some countries have
successfully tried those responsible for war crimes committed
during the Second World War, it emphasises the fundamental
difference between having the possibility to prosecute an
individual for a serious crime under international law where
circumstances allow it, and being obliged to do so by the
Convention.”
242. In light of this passage, I agree with Lord Neuberger that, so far as the
Strasbourg court is concerned, the “Convention values” argument cannot assist the
appellants in their claim that a genuine connection between the triggering event and
the critical date should be recognised.
The claim under HRA
243. What then of the claim based on HRA? Is there any reason that a national
court should adopt the same approach to the question of critical date as that of the
Strasbourg court? If not, what should the backward reach of HRA, if any, be? Three
possibilities must be considered. The first is that the date of the coming into force
of the Act itself should mark the date on which a right under HRA arises. The second
is that the right under HRA should be coterminous with the temporal jurisdiction of
the ECtHR. Finally, it is necessary to consider whether the Convention values
dimension could exceptionally provide a link to the Killings in 1948, when that
dimension is considered under HRA rather than under ECHR.
244. By way of preamble to consideration of these alternatives, and with particular
reference to the second of them, it should be emphasised that the temporal
jurisdiction of the Strasbourg court derives from provisions that applied or apply
exclusively to that court. Article 25 of ECHR provided that the European
Commission of Human Rights could receive petitions from any person claiming to
be the victim of a violation of his or her Convention rights, provided that the member
state against which the complaint was made had declared that it recognised the
competence of the Commission to receive such petitions. Article 46 contained a
similar provision in relation to the court. Since 1994, it has been compulsory for
member states of the Council of Europe to accept the right to petition the Strasbourg
court.
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245. Not only do these provisions not apply to claims under HRA, they have
nothing to say on the issue of the temporal jurisdiction of this court under that Act.
The right of individual petition is a specific, procedural question which applies only
to the Strasbourg court.
Should the date on which a claim under HRA is possible, be the date of coming
into force of that Act?
246. The House of Lords In re McKerr [2004] UKHL 12, [2004] 1 WLR 807,
unanimously held that HRA did not have retrospective effect. On that account, the
argument that there was a duty to conduct an article 2 compliant investigation into
a death which had occurred before 2 October 2000 (the date on which HRA came
into force) was dismissed. In McCaughey some modification (as Lord Neuberger
has put it) of that position was inevitable. McKerr had been decided before the
detachable nature of the procedural requirement to investigate a suspicious death
was recognised. But it is important to understand that McCaughey did not challenge
the conclusion in McKerr that HRA did not have retrospective effect. It was because
the procedural obligation under article 2 was a continuing one that an article 2
compliant inquest in the latter case was required – see Lord Phillips at paras 51-52
and 61; Lord Hope at para 76; Lady Hale at para 90; Lord Brown at para 100; my
own judgment at paras 110-111; and Lord Dyson at para 134.
247. Lord Neuberger has commented (at para 95 above) that Lord Phillips in
McCaughey was inclined to hold that a departure from McKerr was warranted
because domestic law should follow the jurisprudence of the Strasbourg court in
recognising an article 2 obligation to investigate a suspicious death after the coming
into force of HRA. He has also suggested that Lord Dyson (in paras 132-137) and I
(in paras 110-114) also favoured this conclusion. It may be that Lord Phillips was
of the view that McKerr should be departed from solely because Strasbourg had
expressed a different view about the retrospective potential of the Convention and
that this should be applied as a matter of automatic consequence to the HRA. I do
not consider, however, that this was the purport of Lord Dyson’s or my judgment.
248. It was because the detachable nature of the procedural duty under article 2
was clearly recognised for the first time in Šilih that the decision in McKerr could
no longer be followed. It was not because it was considered that the pronouncements
in that case about the non-retroactive effect of the HRA were wrong. What Šilih
showed was that the assertion in McKerr that all the obligations arising under article
2 were to be treated as parts of a single whole could no longer stand. Of course, it
was theoretically open to this court in McCaughey to refuse to follow the finding in
Šilih that the procedural duty under article 2 to investigate suspicious deaths was
detachable, but, absent such a decision, the need to revise McKerr (without rejecting
it in its entirety) was clear.
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249. I agree with Lord Neuberger, therefore, that it is not necessary for this court
to reach a conclusion on whether McKerr’s central thesis (that HRA is not
retroactive) was wrong. Rather, what this court must do is decide whether, in light
of the state’s detachable duty to investigate suspicious deaths, there is an existing
duty to conduct an article 2 compliant inquiry into the deaths which are the subject
of this appeal. On that basis it is impossible to say that, simply because HRA came
into force on 2 October 2000, ipso facto, there is no such duty. I would therefore
dismiss the first of the possibilities outlined in para 243 above.
Should the right under HRA be coterminous with the temporal jurisdiction of the
ECtHR?
250. In para 74 of their printed case, the respondents argue that if the appellants
do not have a valid claim in Strasbourg under article 2, they cannot have such a
claim under the HRA because the Act gives effect to Convention rights within the
United Kingdom and does not purport to expand them beyond what Strasbourg has
recognised. This argument fails to address the different sources of jurisdiction for
Strasbourg and the municipal courts of this country. Constraints on the temporal
jurisdiction of the ECtHR, insofar as they derived from articles 25 and 46 of ECHR
and, latterly, derive from article 6 of Protocol 11, did not and do not apply to national
courts. Moreover, recognition of the jurisdiction of this court to decide whether there
is a procedural duty to investigate the deaths does not involve an expansion of the
nature and content of that duty as they have been expressed by Strasbourg. The duty
remains the same in both instances. The issue is whether, by reason of the different
sources of jurisdiction, it should be regarded as arising in domestic law if it does not
arise in international law.
251. When a domestic court, applying the HRA, considers the scope of the
Convention, the date of the recognition of the right of individual petition to ECtHR
is not relevant. One can recognise that it has, at least potentially, some relevance for
the Strasbourg court since it marks the beginning of the period when that court has
been formally invested with jurisdiction to hear individual complaints. But the
domestic courts are in a different position. They must ask first whether the facts
constitutive of the alleged violation fall within the temporal scope of the Convention,
and they must then ask whether the autonomous article 2 investigative duty lies
within the temporal scope of the HRA. The ECtHR asks a different question,
namely, whether the matter falls within the temporal jurisdiction of the court, which
is regulated by either the date of the entry into force of the Convention in the member
state or the recognition of the right of individual petition.
252. My unequivocal answer, therefore to the question, should the temporal
jurisdiction of the national court under the HRA be coterminous with that of ECtHR
is that it should not be. Just because the Strasbourg court does not have temporal
jurisdiction, it should not be regarded as automatic that the national court does not.
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253. But the perceived need for legal certainty which prompted ECtHR’s decision
about the limits on the backward reach of the Convention applies, by parity of
reasoning, to the decision as to the national court’s jurisdiction. As the Grand
Chamber said in Janowiec in para 133, “… having regard to the principle of legal
certainty, the … temporal jurisdiction as regards compliance with the procedural
obligation of article 2 in respect of deaths that occur before the critical date is not
open-ended”. Likewise, the backward reach of HRA and the recognition of a
continuing duty under article 2 to investigate cannot be open-ended. Some limit must
be applied.
254. That is not to say that there are no countervailing considerations which
militate against the fixing of a rigid limit. The role of national courts is to interpret
and apply the Convention and thereby provide effective human rights protection to
individuals. Indeed, the requirement that all member states of the Council of Europe
must confer the right of individual petition on their citizens reflects the growing
consensus that international human rights law is about ensuring justice for individual
citizens rather than being a matter of relationships between governments.
255. Notwithstanding these considerations, the need for some temporal
connection between the triggering event and the animation in the domestic law
sphere of the duty to investigate is undeniable. Otherwise the backward reach of
HRA would be potentially limitless or, as it was put in Janowiec, open-ended.
Should the limit be, as in the ECtHR jurisprudence, a short period and no longer
than ten years? There is no reason in principle that the periods should be the same
in the national law order as in Strasbourg case law. The need for some limit in both
instances is unavoidable, however. The choice of the appropriate period must be, in
the final analysis, arbitrary. To fix it at the point of the coming into force of HRA
would be antithetical to the concept of a continuing duty to investigate a suspicious
death when inquiries into that death were begun or should have been continued after
the coming into force of the Act. But to extend the duty backwards without any limit
simply because an adequate investigation has not yet been undertaken would be
significantly out of step with the Strasbourg approach. It would also be, in many
instances, wholly impractical. However unsatisfactory it may be in terms of
principle, a limit must be set which is essentially arbitrary but which accords with
what is, in most cases, practically possible. It may well be that the ten-year period
chosen by Strasbourg is as good as any. However the limit is fixed, I have concluded
that it cannot be extended to cover the some 52 years from the date of coming into
force of HRA and the Killings in 1948.
The need to avoid erosion of Convention values
256. The triggering event involved in this case, the killing of 24 apparently
innocent men, is clearly “of a larger dimension than an ordinary criminal offence”
and could well be said to be “the negation of the very foundations of the
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Convention”. If it is established that the men were not trying to escape when they
were killed and that there was no justification for opening fire on them, this would
constitute a serious crime under international law. All these elements of the killings,
if shown to have existed, would strike at the heart of “the guarantees and the
underlying values of the Convention”. Should that circumstance operate to provide,
for the purposes of HRA, the exceptional form of connection contemplated by
ECtHR in para 150 of Janowiec?
257. The Strasbourg court considered that the question of erosion of Convention
values did not arise in the pan-European context in relation to events which occurred
before the Convention was adopted on 4 November 1950. Although it professed to
be “sensitive” to the argument that there were contemporary examples of some
countries having prosecuted those responsible for war crimes committed during the
Second World War, it suggested that there was a fundamental difference between
accepting that such prosecutions were possible and their being mandated by the
Convention. Should the same considerations obtain in deciding whether the need to
protect Convention values ought to prompt a finding that HRA should be applied in
a way that would require recognition of a current obligation to investigate killings
which occurred almost 67 years ago?
258. For my part, I doubt if the question whether prosecution of historical offences
should be a matter of compulsion or discretion bears directly on the issue of what is
required to protect Convention values. I consider, however, that the need to preserve
those values cannot provide the basis of an exceptional link. I have reached that view
for the prosaic reason that those values take their life from the Convention. They are
not eroded by events which took place before the Convention itself, and the values
and guarantees which it embodies, came into existence. I have concluded, therefore,
that the protection of Convention values dimension does not provide a link to an
existing duty to conduct an article 2 compliant inquiry into the Killings.
Revival of the duty to investigate
259. Since no link to the triggering event has been established on any of the bases
advanced by the appellants, the question of revival of the duty to investigate does
not arise. Had that been a live issue in the case, I confess that I would have found it
less easy to resolve than does Lord Neuberger.
260. The official account of the Killings given shortly after they occurred in 1948
was affirmed in 1970 (in the House of Commons in a reply by the Attorney General,
Sir Peter Rawlinson) and on 21 January 2009 in a letter from the British High
Commissioner in which he said, “In view of the findings of two previous
investigations that there was insufficient evidence to pursue prosecutions in this
case, and in the absence of any new evidence, regrettably we see no reason to reopen
or start a fresh investigation”. As late as 2009, therefore, the British Government
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was maintaining the stance that there was nothing to challenge, much less gainsay
the original official version of the Killings. If the appellants had accepted that
assertion, could they have been faulted for doing so? Surely not. And, if not, can it
be said that nothing new has subsequently emerged that would have warranted a
decision to no longer accept the government’s claim?
261. In fact, a number of new developments took place after January 2009. In June
2009 the book, ‘Slaughter and Deception’ was published. Lord Neuberger has said
that this did not contain much new revelatory evidence. That depends on how one
views the state of the evidence and the attitude that might reasonably have been
taken to it before publication. If a decision to accept the government’s steadfast
denials of the need for an inquiry could not be condemned, it is difficult to see how
the appellants’ failure to challenge them can be faulted. The least that ‘Slaughter
and Deception’ did was to collate material from various sources which supported
the appellants’ case that the government’s claim that no further inquiry was
necessary could not be sustained.
262. Significantly, at a meeting held on 3 July 2009 and attended by members of
the Batang Kali action committee with their lawyers and representatives of the
Ministry of Defence and the Foreign and Commonwealth Office, it was disclosed
that the government was reconsidering the January 2009 decision not to hold a
further inquiry. This is significant in two aspects. First, it indicates that the
government believed that there was new material which called for fresh
consideration. Secondly, it sounds on the reasonableness of the stance of the
appellants in failing to take action to challenge the decision not to hold a new
inquiry.
263. Lord Neuberger has said that in 1970 there were already considerable reasons
for doubting whether the official United Kingdom Government line on the killings
was correct, and that there were strong grounds which suggested that the killings
were unlawful (para 107 above). This assessment is very much a matter of individual
judgment and it is not easy to avoid the influence of hindsight in making it. In any
event, it must be set against the statement in Parliament by a senior member of the
government, the Attorney General, endorsing what he implied was an independent
decision of the Director of Public Prosecutions “not to ask the police to pursue the
inquiry” into the killings. In fact, as the report of Detective Superintendent Williams
revealed, he was of the view that this decision was one secured by “a political change
of view”. This did not come to the attention of the appellants until 2009. Thereafter,
the government was considering the representations made by the appellants as to
whether a new inquiry would be held. It has not been suggested (nor could it be) that
the appellants should have challenged the failure to hold an inquiry before the
outcome of the government’s deliberations was known nor that they failed to act
with sufficient speed after it was disclosed to them.
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264. In the context of what is required to revive a duty to investigate, the question
of what new material will be sufficient to give rise to such a revival should be
approached broadly. In Brecknell v United Kingdom (2007) 46 EHRR 957 the
Strasbourg court found that a renewed investigation into a 1975 murder was
necessary in order to evaluate the link between a number of previously closed cases
involving fresh allegations of state collusion. It emphasised that there could always
be situations after the closure of cases where “information purportedly casting new
light on the circumstances of the death comes into the public domain” – para 66. And
in para 70, while pointing out that the revival of the duty to investigate would not be
prompted by any allegation, the court said that “given the fundamental importance
of [article 2], the state authorities must be sensitive to any information or material
which has the potential either to undermine the conclusions of an earlier
investigation or to allow an earlier inconclusive investigation to be pursued further”.
265. Clearly, therefore, it is not necessary that the new material take the form of
hard evidence. Allegations, provided they are credible and have the potential to
undermine earlier findings, will suffice. A reassessment of already existing
evidence, if it is plausible and enjoys the same potential, will also be sufficient.
While, therefore, it may be true to say that nothing substantial in the way of hard
evidence was revealed in Slaughter and Deception or by the appellants’ lawyers
obtaining access to the files of the Metropolitan Police and those of the Malaysian
Police, the material that they collectively provided cast an entirely new light on the
decision not to hold an inquiry.
266. The impact of that new material was neatly and comprehensively stated in
para 82 of the Court of Appeal’s judgment:
“Whilst developments since our critical date have been
intermittent, they have yielded material which, to put it at its
lowest, may cast doubt on the original account. The confessions
which arose in 1969-1970 were of potential significance and
remain so, not least because the investigation within which they
emerged was brought to an abrupt halt. They have never been
tested or discredited. The sum of knowledge has been
significantly increased by the work of the Royal Malaysian
Police 20 years ago but they were unable to secure meaningful
co-operation from the United Kingdom authorities.
Importantly, significant material from the Metropolitan Police
in the 1970s and a considerable amount of potentially relevant
material accumulated during the Royal Malaysian Police
investigation in the 1990s has only come to the notice of the
claimants in the course of, and as a result of, these proceedings.
It includes statements made many years later by some of the
children who were at Batang Kali at the time of the shootings.
It is not suggested that the material which has emerged since
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the critical date and which, if true, discredits the official version
is all inherently incredible. The fact is that it has never been
tested independently. Nor has it been brought together for a
singular independent assessment. Moreover, there is reason to
suppose that, even now, it could be supplemented by significant
pathological expert evidence following exhumation. Professor
Sue Black of the University of Dundee has so opined.”
267. I agree with this summary and, if a link to the triggering event had been
established, I would have held that the duty to conduct an article 2 compliant inquiry
had been revived.
Customary international law
268. I agree with Lord Neuberger that the appellants cannot succeed by recourse
to customary international law because, at the time of the killings, the duty to
investigate suspicious deaths had not been recognised as a precept of that system of
law. As the Divisional Court in the present case said ([2012] EWHC 2445 (Admin),
at para 105), “Any duty under customary international law must be judged at the
time of the occurrence of the act about which an inquiry is sought”.
269. I would be less sanguine about accepting in its entirety Lord Neuberger’s
second reason for rejecting the appellants’ case on this ground. He relies strongly on
four of the five opinions in the House of Lords in McKerr to support his conclusion
that a rule of customary international law which decreed that deaths occurring as
long ago as 1948 should be investigated ought not to be incorporated into the
common law. The basis on which those opinions were expressed is that it would be
inappropriate to do so where, in the words of Lord Nicholls, this would “create an
overriding common law obligation on the state, corresponding to article 2 … in an
area of the law for which Parliament has long legislated”.
270. One can quite understand how it would be inapt to construct a common law
duty to investigate which was, in effect, parallel to the statutory obligation to
investigate suspicious deaths occurring within the national court’s jurisdiction. But
suppose that the deaths had occurred at a time when the United Kingdom had
jurisdiction over the territory in which they had occurred but, at that time, there was
no article 2 duty to investigate nor, when an inquest was subsequently sought, was
there any statutory requirement to investigate the deaths because, for instance,
United Kingdom had by then relinquished jurisdiction over the country in which
they had occurred. If there was a duty to investigate under customary international
law, which was current at the time that the deaths occurred, it seems to me that there
would be a strong argument that such a duty should find expression in the common
law. But those supposed facts are far removed from the circumstances of the present
case and I need say nothing further about the matter.
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Proportionality
271. Lord Neuberger has said that it would not be appropriate for a five member
panel of this court to reach a final conclusion on the question whether proportionality
should supplant rationality as a ground of judicial review challenge at common law.
I tend to agree, although I suspect that this question will have to be frankly addressed
by this court sooner rather than later. As Lord Neuberger has said, it is possibly a
matter of some constitutional importance, although it is perhaps not as great as many
commentators believe. Lord Neuberger also suggested that a change from
irrationality to proportionality had implications which might be “very wide in
applicable scope”. This could very well be true but I believe that some of these have
been overestimated in the past. Indeed, the very notion that one must choose between
proportionality and irrationality may be misplaced.
272. Without rehearsing all the arguments which swirl around this issue and
keeping in mind the perils of over simplification, it is important to start any debate
on the subject with the clear understanding that a review based on proportionality is
not one in which the reviewer substitutes his or her opinion for that of the decisionmaker. At its heart, proportionality review requires of the person or agency that
seeks to defend a decision that they show that it was proportionate to meet the aim
that it professes to achieve. It does not demand that the decision-maker bring the
reviewer to the point of conviction that theirs was the right decision in any absolute
sense.
273. It should also be understood that the difference between a rationality
challenge and one based on proportionality is not, at least at a hypothetical level, as
stark as it is sometimes portrayed. This was well expressed by Lord Mance in
Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014]
UKSC 20; [2015] AC 455. At para 51 he said:
“… The common law no longer insists on the uniform
application of the rigid test of irrationality once thought
applicable under the so-called Wednesbury principle: see
Associated Provincial Picture Houses Ltd v Wednesbury
Corpn [1948] 1 KB 223. The nature of judicial review in every
case depends on the context. The change in this respect was
heralded by Lord Bridge of Harwich … in R v Secretary of
State for the Home Department, Ex p Bugdaycay [1987] AC
514, 531 where he indicated that, subject to the weight to be
given to a primary decision-maker’s findings of fact and
exercise of discretion, ‘the court must … be entitled to subject
an administrative decision to the more rigorous examination, to
ensure that it is in no way flawed, according to the gravity of
the issue which the decision determines’.”
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274. Developing this theme and touching on the subject of the innate superiority
of proportionality as a tool of review, Lord Mance continued at para 54:
“Both reasonableness review and proportionality involve
considerations of weight and balance, with the intensity of the
scrutiny and the weight to be given to any primary decision
maker’s view depending on the context. The advantage of the
terminology of proportionality is that it introduces an element
of structure into the exercise, by directing attention to factors
such as suitability or appropriateness, necessity and the balance
or imbalance or benefits and disadvantages.”
275. Lord Mance returned to the same theme in Pham v Secretary of State for the
Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19;
[2015] 1 WLR 1591 where he said, at para 96:
“In short, proportionality is—as Professor Dr Lübbe-Wolff
(former judge of the Bundesverfassungsgericht which
originated the term’s modern use) put it in The Principle of
Proportionality in the Case Law of the German Federal
Constitutional Court (2014) 34 HRLJ 12, 6-17—‘a tool
directing attention to different aspects of what is implied in any
rational assessment of the reasonableness of a restriction’, ‘just
a rationalising heuristic tool’. She went on, at p 16: ‘Whether it
is also used as a tool to intensify judicial control of state acts is
not determined by the structure of the test but by the degree of
judicial restraint practised in applying it.’ Whether under EU,
Convention or common law, context will determine the
appropriate intensity of review: see also Kennedy v Information
Comr [2015] AC 455, para 54.”
276. Lord Sumption in the same case expressed not entirely dissimilar views,
saying at para 105 that “although English law has not adopted the principle of
proportionality generally, it has for many years stumbled towards a concept which
is in significant respects similar, and over the last three decades has been influenced
by European jurisprudence even in areas of law lying beyond the domains of EU
and international human rights law”.
277. Lord Reed, on the other hand, was not disposed to assimilate the tests of
proportionality and rationality. At para 115 of Pham he said:
“That is not to say that the Wednesbury test, even when applied
with ‘heightened’ or ‘anxious’ scrutiny, is identical to the
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principle of proportionality as understood in EU law, or as it
has been explained in cases decided under the Human Rights
Act 1998. In R (Daly) v Secretary of State for the Home
Department [200l] 2 AC 532, Lord Steyn observed at para 26,
with the agreement of the other members of the House of
Lords, that there was a material difference between the
Wednesbury and Smith grounds of review and the approach of
proportionality in cases where Convention rights were at stake.
In Brind, the House of Lords declined to accept that
proportionality had become a distinct head of review in
domestic law, in the absence of any question of EU law. This
is not the occasion to review those authorities.”
278. As in Pham so, probably, in the present appeal, it is not the occasion to review
the authorities. Final conclusions on a number of interesting issues that arise in this
area must await a case where they can be more fully explored. These include whether
irrationality and proportionality are forms of review which are bluntly opposed to
each other and mutually exclusive; whether intensity of review operates on a sliding
scale, dependent on the nature of the decision under challenge and that, in
consequence, the debate about a ‘choice’ between proportionality and rationality is
no longer relevant; whether there is any place in modern administrative law for a
‘pure’ irrationality ground of review ie one which poses the question, ‘could any
reasonable decision-maker, acting reasonably, have reached this conclusion’; and
whether proportionality provides a more structured and transparent means of review.
279. In the present case, the appellants must present their case for a proportionality
review of the decision not to hold an inquiry in a context where they cannot assert
that there has been interference with their right to have such an inquiry.
Conventionally, of course, interference with a fundamental right has been the setting
where proportionality has most frequently been considered recently – see, for
instance, R (Aguilar Quila) v Secretary of State for the Home Department [2011]
UKSC 45; [2012] 1 AC 621, para 45; Bank Mellat v HM Treasury (No 2) [2013]
UKSC 39, [2014] AC 700, paras 20 and 74; and R (Nicklinson) v Ministry of Justice
(CNK Alliance intervening) [2014] UKSC 38, [2015] AC 657, paras 80, 167-168,
310, 337.
280. As Lord Reed pointed out in Pham at para 113, it is necessary to distinguish
between proportionality as a general ground of review of administrative action,
confining the exercise of power to means which are proportionate to the ends
pursued, from proportionality as a basis for scrutinising justifications put forward
for interferences with legal rights.
281. Lord Neuberger has suggested in para 131 above that the appellants have
contended that the four-stage test identified by Lord Sumption and Lord Reed in
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Bank Mellat at paras 20 and 74 should now be applied in place of rationality in all
domestic judicial review cases. If this is the appellants’ position I question its
feasibility. In the first instance there is no legislative objective and no interference
with a fundamental right; secondly, it is difficult to see how the “least intrusive
means” dimension could be worked into a proportionality exercise where the
decision did not involve interfering with a right.
282. I envisage a more loosely structured proportionality challenge where a
fundamental right is not involved. As Lord Mance said in Kennedy, this involves a
testing of the decision in terms of its “suitability or appropriateness, necessity and
the balance or imbalance of benefits and disadvantages”.
283. In the present case, such a proportionality challenge would require the court
to assess whether the government has struck the right balance between two
incommensurate values: protecting the public purse from the substantial expenditure
that would inevitably be involved, with (from its perspective) little tangible or
practical benefit, as opposed to exposing historic crimes by the British forces, with
the associated vindication of the appellants’ long-fought and undeniably worthy
campaign. I have been reluctantly driven to the conclusion that, without an
identifiable fundamental right in play, it is difficult to say that the decision not to
hold an inquiry is disproportionate.
Jurisdiction
284. I agree with all that Lord Mance has had to say on this subject.
Conclusion
285. With regret, I have concluded that the appeal cannot succeed. This is an
instance where the law has proved itself unable to respond positively to the demand
that there be redress for the historical wrong that the appellants so passionately
believe has been perpetrated on them and their relatives. That may reflect a
deficiency in our system of law. It certainly does not represent any discredit on the
honourable crusade that the appellants have pursued.
LADY HALE: (dissenting)
286. The claimants want the United Kingdom Government at long last to hold a
proper inquiry into how it was that 24 unarmed rubber plantation workers were shot
dead by British soldiers on 11 and 12 December 1948 during the emergency in
Malaya. They want the decisions taken by the Secretaries of State on 29 November
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2010 and 4 November 2011 not to hold such an inquiry or to make any other form
of reparation quashed. They make their challenge under both the Human Rights Act
1998 and the common law.
The Human Rights Act challenge
287. The Human Rights Act challenge has always been ambitious. The events in
question took place before the European Convention on Human Rights was adopted
in 1950; before it was ratified by the United Kingdom in 1951; before it gained
sufficient ratifications to come into force in 1953; before the United Kingdom
accepted the right of individuals to petition the European Court of Human Rights
about alleged violations in 1966; and before the Human Rights Act 1998 turned the
Convention rights into rights which are binding, not only in international law, but
also in United Kingdom law.
288. The claimants seek to build two bridges. The first is to carry them from the
killings which took place in 1948 into the temporal scope of the Convention which
came into force in 1953. They say that 1953 is the critical date for this purpose and
that the killings took place sufficiently close to that date for there still to have been
an obligation to investigate them after it. The second bridge must carry them from
that internationally enforceable obligation into a domestically enforceable
obligation under the Human Rights Act. They say that such an obligation arises
because of new information which has come to light since the Act came into force.
289. It is a tribute to the skill of the claimants’ legal team that these arguments
have to be taken seriously. They rely crucially on the Grand Chamber decision in
Janowiec v Russia (2013) 58 EHRR 792, which clarified the court’s earlier decision
in Šilih v Slovenia (2009) 49 EHRR 996. Janowiec concerned what is generally
known as the “Katyn massacre” in 1940, when more than 21,000 Polish prisoners
of war were summarily executed by officers of the Soviet NKVD, the predecessor
of the KGB. The court might have disposed of the case on the ground that these
deaths all took place long before the ECHR had been dreamt of, let alone adopted.
But it did not. It acknowledged that it only had jurisdiction to examine acts or
omissions taking place after the entry into force of the Convention. But it posited
two circumstances in which that jurisdiction might arise even though the deaths
themselves had pre-dated the critical date. The first was where there was a “genuine
connection” between the death and the entry into force of the Convention. This had
two components, both of which must be satisfied. First, “the period of time between
the death as the triggering event and the entry into force of the Convention [was]
reasonably short, and [second] a major part of the investigation [had] been carried
out, or ought to have been carried out, after the entry into force” (para 148). The
court had previously said that the period should be no more than ten years (para
146), although it appears that this was a maximum which might not apply in all
cases. The second circumstance was “if the triggering event was of a larger
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dimension than an ordinary criminal offence and amounted to the negation of the
very foundation of the Convention” (para 150). The examples given were war
crimes, genocide or crimes against humanity. But this “Convention values”
obligation could not arise where the deaths had taken place before the adoption of
the Convention, “for it was only then that the Convention began its existence as an
international human rights treaty” (para 151). It would have been much simpler for
us all if the Grand Chamber had applied the same logic to the “genuine connection”
test. But it did not.
290. As to the first part of the “genuine connection” test, the lapse of a “reasonably
short” period of time since the deaths, it seems unrealistic and artificial that so much
should depend upon whether the critical date is the entry into force of the
Convention in 1953, or the acceptance of the right of individual petition in 1966. As
Lord Kerr has demonstrated, the jurisprudence of the Strasbourg court does not point
convincingly one way or the other. But logic points strongly in favour of the former.
The United Kingdom was bound by treaty to observe the Convention from 3
September 1953 and in relation to Malaya from 23 October 1953. It could thereafter
have been taken to the Strasbourg court by any other member state for an alleged
violation. There was no requirement that the member state or its citizens be a victim.
It is difficult to see why the additional possibility of being taken to the court by an
individual victim should make any difference to the obligations of the United
Kingdom in international law.
291. Left to myself, therefore, I would not have been prepared to reject this claim
on the ground that the critical date was 1966 rather than 1953. We do not have
slavishly to follow the Strasbourg jurisprudence. Lord Bingham’s famous dictum in
R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20, does
not require us to do so. Thus far, it is possible to discern four broad propositions
from our own case law. First, if it is clear that the claimant would win in Strasbourg,
then he will normally win in the courts of this country. This is because it would
negate the purpose of the Human Rights Act for the claimant to have to bring a claim
in Strasbourg. But this is subject to the well-known qualifications set out in
Manchester City Council v Pinnock (Secretary of State for Communities and Local
Government intervening) [2010] UKSC 45, [2011] 2 AC 104, para 48 (and recently
reaffirmed in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014]
AC 271, para 26): that the “clear and constant” line of Strasbourg authority is “not
inconsistent with some fundamental substantive or procedural aspect of our law, and
whose reasoning does not appear to overlook or misunderstand some argument or
point of principle”. Second, if it is clear that the claimant would lose in Strasbourg,
then he will normally lose here too: R (Al-Skeini) v Secretary of State for Defence
(The Redress Trust intervening) [2007] UKHL 26, [2008] AC 153 is an example
where the House of Lords thought that the answer was clear. Strasbourg had drawn
a line in the sand – jurisdiction was territorial, with only a very few narrowly defined
exceptions, which did not apply to civilians killed in the course of military
operations in Iraq. As it happened, the House was wrong about that (see Al-Skeini v
United Kingdom (2011) 53 EHRR 589), but that does not affect the principle. Third,
Page 83
there are cases where it is clear that Strasbourg would regard the decision as one
within the margin of appreciation accorded to member states. Then it is a question
for the national courts by which organ of government the decision should be taken:
R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC
38, [2015] AC 657 is an example of this, in which this court was divided on where
responsibility lay for deciding whether the outright ban on assisting suicide was
justified. Fourth, there are cases on which there is as yet no clear and constant line
of Strasbourg jurisprudence. We do not have to wait until a case reaches Strasbourg
before deciding what the answer should be. We have to do our best to work it out
for ourselves as a matter of principle: Rabone v Pennine Care NHS Foundation Trust
(INQUEST intervening) [2012] UKSC 2, [2012] 2 AC 72 is an example of this (an
example which, as it happened, was swiftly followed by a Strasbourg decision which
is wholly consistent with it: see Reynolds v United Kingdom (2012) 55 EHRR 1040).
There may be other situations in which the courts of this country have to try to work
out for themselves where the answer lies, taking into account, not only the principles
developed in Strasbourg, but also the legal, social and cultural traditions of the
United Kingdom.
292. As to the second part of the “genuine connection” test, that a significant part
of the investigation did take place, or should have taken place, after the critical date,
this depends upon whether there was an omission to act after that date. That depends
upon whether “a plausible, credible allegation, piece of evidence or item of
information comes to light which is relevant to the identification and eventual
prosecution or punishment of those responsible”. Such new material must be
“sufficiently weighty and compelling to warrant a new round of proceedings”
(Janowiec, para 144, citing Dorado v Spain (Application No 30141/09),
(unreported) given 27 March 2012, Çakir v Cyprus (Application No 7864/06),
(unreported) given 29 April 2010, and Brecknell v United Kingdom (2007) 46 EHRR
967, paras 66-72). Quite obviously, new material did come to light in 1970 when
five of the soldiers admitted under caution that the villagers had not been running
away but had been shot in cold blood and a sixth did not retract the sworn statement
he had earlier given to the same effect. The critical question, however, is whether
further new material came to light after the Human Rights Act came into force.
293. That question is critical because the second bridge, from the Convention to
the Human Rights Act, depends upon it. The claimants might well have been able
to complain to the Strasbourg court after the 1970 investigation was abandoned. But
it is now far too late for them to do that. The time limit for complaining to Strasbourg
is long gone. An individual can only make a claim under the Human Rights Act if
he or she could complain to Strasbourg after exhausting the remedies available
domestically. It was established in In re McCaughey [2011] UKSC 20, [2012] 1 AC
725 that where the death took place before the Human Rights Act came into force
but a significant part of the investigation was to take place after that date, then the
investigation had to comply with the requirements of the Convention. The claimants
argue that the obligation also arises if, after the Act came into force, significant new
information comes to light which undermines or casts doubt upon the effectiveness
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of the original investigation or investigations (a possibility recognised in
McCaughey, for example at para 93). The claimants also argue that this point was
decided in their favour in the Court of Appeal.
294. The original investigation by the UK authorities in 1948-1949 was seriously
defective, not least because none of the surviving villagers were interviewed, and
was rightly criticised by the Divisional Court and Court of Appeal. The criminal
investigation begun in 1970 as a result of the guardsmen’s confessions in 1969-1970
was halted prematurely, before the Metropolitan Police could complete their
inquiries by interviewing the Malaysian witnesses. The Malaysian Police conducted
their own investigations from 1993 to 1996 but were unable to complete their
inquiries by interviewing the British witnesses. Much of the material was first
brought together and put into the public domain in the book, Slaughter and
Deception at Batang Kali, by Ian Ward and Norma Miraflor, published in June 2009.
It is unclear just how much the British authorities knew about the Malaysian Police
inquiries until then, but it is clear from the précis of the book prepared for the
Secretaries of State by Dr Brendan McGurk in 2009, that the authors had seen
statements made to the Malaysian Police which had not been seen in either Ministry.
As Lord Kerr has shown, in January 2009, the Secretaries of State were still
maintaining the stance that there was nothing to gainsay the original official version
of the killings, but something caused them to reconsider their decision in the course
of 2009. As the Court of Appeal held, “significant material from the Metropolitan
Police in the 1970s and a considerable amount of potentially relevant material
accumulated during the Royal Malaysian Police investigation in the 1990s has only
come to the notice of the claimants in the course of, and as a result of, these
proceedings” (para 82). Amongst that material was Detective Chief Superintendent
Williams’ report, which revealed his view that the decision to halt the inquiry was
secured by “a political change of view”.
295. Against that, the Secretaries of State argue that the Court of Appeal was not
there deciding that there was new information sufficient to revive the investigative
obligation. They also argue that the essentials of the villagers’ accounts had been
reported to the Metropolitan Police in 1970 and included in DCS Williams’ report.
Thus, although that inquiry had not been completed, the British authorities did know
all the essential points of dispute. Further, although the claimants only got access to
the files in the course of the proceedings, they too knew about the soldiers’
confessions from press reports and from a television documentary In Cold Blood,
broadcast in 1992. Thus, save for minor details, there was nothing “new” about what
each side was saying had taken place.
296. In common with Lord Kerr, I find this a much more difficult issue to resolve
than does Lord Neuberger. Clearly, the soldiers’ confessions in 1969-1970 were
indeed significant new material which cast doubt on the effectiveness of the original
inquiry and were sufficient to revive the obligation to investigate. It is also possible
that the results of the Malaysian Police inquiries in the 1990s produced sufficient
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new material to revive the obligation. It is one thing for survivors to give their
accounts to journalists and quite another thing to give them to the police in the course
of an official inquiry.
297. But what is meant by “new” material and “coming to light”? It appears from
the reference in Janowiec to an “allegation, piece of evidence or item of
information” that new material must be construed broadly. It is true that the bare
bones of the allegations and counter-allegations were known in 1970, but there had
then been no proper investigation in Malaya. Effectively there have been two
separate investigations, each of one half of the picture only. They were not properly
brought together until the publication of Slaughter and Deception at Batang Kali in
June 2009. In Harrison v United Kingdom (2014) 59 EHRR SE1, “coming to light”
was equated with coming “into the public domain” (para 51). The findings of the
Hillsborough Independent Panel constituted “new evidence and information which
cast doubt on the effectiveness of the original inquest and criminal investigations”
(para 53). Those findings were based on all the available documentation which now
included newly disclosed documents held by government departments. Thus,
whatever else “coming to light” may mean, it must encompass the revelation of
material which was previously known only to the relevant authorities. Hence I agree
with Lord Kerr that the material collectively provided by the publication of the book
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” (para 265).
298. But I cannot agree with him that this is not a live issue in these proceedings.
In their written submissions, the claimants clearly state that they cross the second
bridge, the bridge into the Human Rights Act, “because the current position is that
relevant and weighty material has recently come to light, requiring investigation to
discharge the article 2 procedural obligation” (para 2.2). But that question only
arises if the first part of the “genuine connection” test is established and that depends
upon the critical date.
299. In my view, therefore, principle dictates that the critical date is the date upon
which the United Kingdom became bound in international law to observe the
guarantees of human rights and fundamental freedoms laid down in the Convention;
the triggering events were less than five years earlier; and significant new material
has recently come to light which, to say the least, casts doubt on the effectiveness of
the original inquiry and later criminal investigations. My reservations about the
human rights claim are different.
300. The first is whether what the claimants want falls within the procedural
obligation in article 2 at all. In Janowiec, the court observed that the “procedural
acts” which took place or ought to have taken place after the entry into force of the
Convention referred to “acts undertaken in the framework of criminal, civil,
administrative or disciplinary proceedings which are capable of leading to the
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identification and punishment of those responsible or to an award of compensation
to the injured party” (citing Labita v Italy (2000) 46 EHRR 50, at para 131 and
McCann v United Kingdom (1995) 21 EHRR 97, at para 161). The claimants do
indeed seek reparation, but this is not by way of an ordinary civil action (which
would have been time-barred a very long time ago) and not from the actual
perpetrators, and it is now quite unrealistic to expect that anyone could be prosecuted
for their part in what took place. What the claimants really and rightly want is a
proper, full and fair inquiry, which will establish the truth, so far as it is possible to
do so, vindicate their deceased relatives and lead to a retraction of the official
account of what took place. Yet in Janowiec, the court went on to say that “This
definition operates to the exclusion of other types of inquiries that may be carried
out for other purposes, such as establishing a historical truth” (para 143).
301. My second reservation is that the logic of refusing to apply the “Convention
values” test to deaths which took place before the Convention was adopted could
equally well be applied to the “genuine connection” test. How can it be said 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? Just like the Convention values, those obligations “take
their life from the Convention. They are not eroded by events which took place
before the Convention itself, and the values and guarantees which it embodies, came
into existence” (to quote Lord Kerr, at para 258). That to my mind is a more logical,
sensible and practical solution to the question of whether there is an obligation to
investigate such historic events than arid debates about the critical date. It is for that
reason that I would dismiss the Human Rights Act claim.
The common law claims
302. There are three bases for the common law claims: customary international
law, proportionality, and irrationality or Wednesbury unreasonableness. I agree that
it has not been shown that, when these killings took place, customary international
law had recognised a duty to investigate deaths of this sort. That is sufficient to
dispose of this part of the claim and it is unnecessary to express a view on whether,
in any event, such an obligation should not be recognised as part of the common law
because of the long history of legislative activity governing the investigation of
suspicious deaths.
303. Much of the argument before us (but not in the courts below) was devoted to
whether the time had now come to recognise proportionality as a further basis for
challenging administrative actions, a basis which, if adopted, would be likely to
consign the Wednesbury principle to the dustbin of history. The claimants’ principal
argument (relying in particular on the work of Professor Paul Craig) was that
proportionality should be adopted as the basis of challenge for all administrative
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decisions. An alternative argument was that it should now be openly adopted by this
court in a human rights context (relying again on those commentators, including
Professor Craig, who suggest that it already applies in the context of fundamental
rights).
304. This is indeed a complex issue, but I agree with Lord Kerr (para 283) that it
is one thing to apply a proportionality analysis to an interference with, or limitation
of, a fundamental right and another thing to apply it to an ordinary administrative
decision such as whether or not to hold some sort of inquiry. The recent observations
of this court on the relevance of a proportionality analysis, in Pham v Secretary of
State for the Home Department (Open Society Justice Initiative intervening) [2015]
UKSC 19, [2015] 1 WLR 1591, were in the context of stripping the claimant of his
British nationality and all that goes with it, which is clearly a grave invasion of a
fundamental right. The context here is, of course, the killing of unarmed civilians by
British soldiers. The right to life of those civilians was undoubtedly engaged by
whatever took place. Two of the four claimants were present at the scene, but the
women and children were separated from the men overnight, and loaded onto a lorry
to be driven away from the scene the following day. The claim of all four is as
relatives of the deceased. The right which they claim is to a proper investigation and
a retraction of the official explanation of what took place. But, for the reasons given
earlier, that is not a right recognised by the common law or under the Human Rights
Act.
305. But that still leaves the Wednesbury challenge. I do not think that, by
concentrating on the proportionality argument, it was intended to abandon the more
conventional challenge. Issue 2 identified in the Statement of Facts and Issues was
whether the refusal to hold an inquiry or otherwise investigate can be justified “by
the applicable standard”. If not proportionality that must be Wednesbury
unreasonableness or irrationality. The decisions in question were contained in the
principal decision letter of 29 November 2010 and confirmed, after these
proceedings had begun, on 4 November 2011. The reasons given for deciding not to
hold an inquiry are summarised by Lord Neuberger at paras 124 and 125 and it is
unnecessary for me to repeat them. I would only add that those reasons were
focussed upon a statutory inquiry under the Inquiries Act 2005; but the Secretaries
of State also concluded that the reasons against such an inquiry “also militate against
the establishment of any other form of inquiry or investigation”.
306. The Divisional Court dealt with this issue in some detail: [2012] EWHC 2445
(Admin), paras 124 to 176. The court considered five possible purposes of an
inquiry, derived from Lord Howe’s evidence to the Select Committee on
Government by Inquiry in 2004-2005: (a) establishing the facts, (b) learning from
events and preventing a recurrence, (c) catharsis and improving understanding of
what happened, (d) providing reassurance and rebuilding public confidence, and (e)
accountability. To this they added (vi) promoting good race relations, as required by
section 71 of the Race Relations Act 1976. But the court’s assessment of how an
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inquiry might achieve all of these purposes was heavily influenced by its conclusion
that “it would appear to be very difficult at this point in time to establish definitively
whether the men were shot trying to escape or whether these were deliberate
executions” (para 159). Thus the facts could not definitely be found (paras 160, 161);
catharsis could not be achieved (para 165); reassurance could not be given or public
confidence rebuilt (para 168); accountability could not be determined (para 169);
and it could not be said whether there would be negative or positive consequences
in race equality terms (para 172). In addition, times had changed so much that it was
very questionable how much could be learnt (para 164); and the costs, even of a
“stream-lined” inquiry, which is all the court thought necessary, were a material
factor (paras 174-175). Hence the Secretaries of State had taken into account the
relevant factors and reached a decision which was plainly open to them to reach
(para 176).
307. The Court of Appeal was critical of the approach of the Divisional Court:
[2014] EWCA Civ 312, [2015] QB 57. The difficulties of reaching “definitive”
conclusions “lay at the heart of its reasoning” but this was to impose too high a
threshold (para 109). Recent public inquiries, including the Shipman, Bloody
Sunday and Baha Mousa inquiries, had adopted a lower and more flexible standard.
Moreover, the Secretaries of State had expressly not assumed that it was unlikely
that an inquiry could reach firm conclusions. Nevertheless, they took into account
the evidential difficulties; considered that establishing the truth is especially
important when it can cast light on systemic or institutional failings, which can then
be corrected, and this is more likely where the events are relatively recent; and
doubted the contemporary relevance of any findings, given how much had changed
since 1948. The costs would be considerable. Overall, the conclusion was that the
benefits to be gained would not justify the costs. The Court of Appeal was “satisfied
that the Secretaries of State had considered everything which they were required to
consider; did not have regard to any irrelevant considerations; and reached rational
decisions which were open to them” (para 118).
308. One of the reasons given by the claimants for adopting proportionality instead
of Wednesbury unreasonableness or irrationality is Professor Craig’s view that “cast
in its correct terms it could almost never avail claimants” (Administrative Law, 7th
ed (2012), para 21-027) and that “it is difficult to think of a single real case in which
the facts meet this standard” (“The Nature of Reasonableness” (2013) 66 CLP 131,
161). This case is an excellent opportunity to test whether that proposition is correct.
309. Any rational decision-maker would take into account, at the very least, the
following salient points about the background history:
(1) The enormity of what is alleged to have taken place. If the guardsmen
did indeed kill innocent and unarmed villagers in cold blood, then even
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by the different standards of the time, this was a grave atrocity which
deserves to be acknowledged and condemned.
(2) The inadequacy of the initial investigation. There were many people
present at the scene who could have been asked for their accounts. It
was totally unacceptable to assume that the guardsmen and their police
escorts were telling the truth but that survivors and civilian eyewitnesses would not do so.
(3) The weight which should be accorded to the confessions made in 1970.
Although originally given to a newspaper, four were repeated under
caution to the police. They were enough to cast serious doubt on the
official account and to prompt a serious police inquiry.
(4) The premature termination of that inquiry, which was obviously being
conscientiously conducted by DCS Williams, and his view that this
was a political decision, unsurprising given that it happened very
shortly after the change of government in 1970.
(5) The evidence obtained from the Royal Malaysian Police inquiry in the
1990s. Although some of the relatives and survivors had previously
given their accounts to others, this evidence had only recently come to
light.
(6) The petering out of that inquiry, in the face, it would appear, of an
unhelpful attitude of the British authorities when the Malaysian Police
wished to pursue their inquiries here.
(7) The thorough analysis of all the available evidence in Slaughter and
Deception at Batang Kali. The authors did have a particular point of
view, being determined to undermine the official account, but they
collected together a great deal of information and analysed it in great
detail.
(8) The evidence from the archaeologist, Professor Black, as to what
exhuming and examining the bodies of the deceased could show and
how it would help in determining the facts.
(9) The persistence and strength of the injustice felt by the survivors and
families of the men who were killed, which has led them twice to
petition the Queen and to launch these proceedings.
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310. Bearing all that in mind, a rational decision-maker would then consider the
advantages of some sort of inquiry, in summary:
(1) The very real possibility that, despite the difficulties, conclusions
could be drawn about what is most likely to have happened.
(2) The importance of the British authorities, at long last, seeking to make
good the deficiencies of the past inquiries and the very real benefits
this could bring in terms of catharsis, accountability and public
confidence, whether or not firm conclusions could be reached.
(3) If firm conclusions could be drawn, the huge importance of
acknowledging what had gone wrong and setting the record straight.
311. Against those advantages, a rational decision-maker would set the following
disadvantages:
(1) The passage of time, the death of so many of the participants and
witnesses, and the conflict of evidence, which would make finding the
facts more difficult.
(2) The changes which have taken place in the organisation and training of
the army, the climate of law and public opinion, such that it is unlikely
that practical lessons could be learned about how better to handle such
situations today.
(3) The cost of even a “stream-lined” inquiry, which would be not
inconsiderable, involving as it would have to do inquiries to be made in
Malaysia, which would depend upon the co-operation of the Malaysian
authorities.
312. The reasons given by the Secretaries of State focussed on what might now be
learned of contemporary relevance, either to the organisation and training of the
army or to promoting race relations, from conducting an inquiry. They did not
seriously consider the most cost-effective form which such an inquiry might take.
They did not seriously consider the “bigger picture”: the public interest in properly
inquiring into an event of this magnitude; the private interests of the relatives and
survivors in knowing the truth and seeing the reputations of their deceased relatives
vindicated; the importance of setting the record straight – as counsel put it, balancing
the prospect of the truth against the value of the truth. The Strasbourg court
expressed this well in Harrison, at para 58:
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“Even where no article 2 procedural obligation exists, it is in
the interests of governmental transparency and of justice in the
wide sense for a government to arrange for a further review in
connection with a national tragedy in response to concerns of
victims or their families who are not satisfied with the results
of the terminated investigations carried out in accordance with
national law, notwithstanding that the tragedy has occurred
many years earlier.”
313. If the Divisional Court had not set the bar to establishing the truth so high, it
might well have concluded that the value of establishing the truth, which would
serve all the beneficial purposes which it identified, was overwhelming. In my view,
the Wednesbury test does have some meaning in a case such as this. The Secretaries
of State did not take into account all the possible purposes and benefits of such an
inquiry and reached a decision which was not one which a reasonable authority
could reach. I would have allowed this appeal.