Infringement of human rights - Right to life - Proceedings arising out of the killing of 24 civilians by British troops during 1948 Malayan Emergency

Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and another: QBD (Div) (Sir Anthony May (president), Mr Justice Treacy): 4 September 2012

The proceedings arose from events occurring during the Malayan Emergency in 1948. At that time, a Communist guerilla movement came into conflict with British authorities, leading to the deployment of British troops in various operations to combat the insurgency.

On 11 and 12 December 1948, 24 civilians were shot by a patrol of Scots Guards at Batang Kali, in Malaya. An investigation in 1948/49 concluded that the civilians had been killed while trying to escape. A second investigation was brought in 1970, when former members of the patrol suggested that the civilians had been executed. That investigation concluded that there was insufficient evidence to bring a prosecution.

In 2008, the claimants, who were witnesses to and survivors of the killings, or close relatives of the deceased, petitioned the Queen for a public inquiry into the killings. The defendant secretaries of state exercised their discretion not to establish a public inquiry or other inquiry. The claimants brought proceedings to challenge those decisions and to establish a legal duty on the defendants to carry out an inquiry. The claimants contended that the defendants were obliged to carry out an inquiry under: (i) article 2 of the European Convention on Human Rights; and (ii) the common law through customary international law. They further contended that the defendants had erred in exercising their discretion under the Inquiries Act 2005 against holding a public inquiry. The claim would be dismissed.

(1) Regarding article 2 of the convention, it was clear from the case law that there was no duty to investigate a death that had occurred before the coming into force of the Human Rights Act in October 2000. Further, there was no obligation to conduct an inquiry into a death before that date or to reopen inquiries that did not comply with article 2 of the convention. It was not necessary to consider applying European law, since the court was already bound by decisions under English law (see [94], [98], [99] of the judgment). There was no duty to hold an inquiry under article 2 of the convention (see [99] of the judgment).

(2) With regard to the application of common law through international law, the act in question had occurred in 1948, long before any duty to investigate under customary international humanitarian law had arisen. On the case law, the question of whether there had been a breach of international law had to be considered at the time the act had occurred (see [104], [105] of the judgment). On the case law, there was no common law right to an inquiry into a death (see [105] of the judgment).

(3) There were various functions that an inquiry could have: (i) establishing the facts; (ii) learning from events; (iii) catharsis or therapeutic exposure; (iv) reassurance and rebuilding public confidence; (v) accountability, blame and retribution; (vi) political considerations (see [157] of the judgment).

On the evidence, inter alia, it would be very difficult to establish whether the deceased were shot while trying to escape or deliberately executed, or whether the force used was unreasonable and disproportionate. In terms of learning from the past, there had been significant developments in counterinsurgency since the Malayan Emergency, and it was unlikely that much could be learned from an inquiry. There could be an increased possibility of truth and reconciliation, and it would be appropriate to have the views of the survivors on record, but only if there was a reasonable prospect of coming to a definitive view on the facts.

Although an inquiry could create reassurance and rebuild public confidence, the evidence suggested that no definitive conclusion could be reached on the 1948/49 inquiry. Consequently, it was impossible to argue that the defendants had given insufficient weight to that notion. It was not possible to determine whether there would be positive or negative consequences for race relations in the event of a finding. Cost, too, was a material factor.

Even if a streamlined inquiry was carried out, it was likely that the cost of an investigation would be considerable, especially taking into account the costs that would be incurred in Malaysia (see [164], [165], [168], [172], [173], [175] of the judgment). The defendants had taken the relevant considerations into account and had not acted unreasonably. There were no grounds for disturbing their conclusion (see [176] of the judgment).

Michael Fordham QC, Danny Friedman and Zachary Douglas (instructed by John Halford, Bindman & Partners) for the claimants; Jason Coppel and Marcus Pilgerstorfer (instructed by the Treasury Solicitor) for the defendants.

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