The dark face of our imperial past

30 November 2015 by Dominic Ruck Keene

R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 – read judgment  

The Supreme Court has ruled that the United Kingdom was not obliged to hold a public inquiry into the shooting in December 1948 during the Malayan Emergency  by British troops of 24 unarmed civilians at Batang Kali. The Court held that (1) the lapse of time meant that there was no Article 2 requirement to hold an inquiry; (2) a duty to hold an inquiry could not be implied into common law under the principles of customary international law; and (3) the decision not to hold an inquiry under the Inquiries Act 2005  was not open to challenge on ordinary judicial review principles. However, the Supreme Court did hold that the deaths were within the United Kingdom’s jurisdiction for the purposes of the application of the ECHR.

The shootings had originally been described by the Army in 1948 as resulting from an attempted mass escape by ‘bandits.’ Limited contemporaneous investigations were conducted following a growing public outcry in Malaya into the deaths of the unarmed men at Batang Kali. Their approach and conclusions was summed up in a written answer to a Parliamentary Question about the incident given by the then Colonial Secretary in January 1949. This stated:

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.

After newspaper interviews in 1970 were given by some of the soldiers involved in which the shootings were described as cold blooded murder, the Metropolitan Police was ordered by the DPP to investigate the incident.  Four soldiers stated under caution that they had been ordered to shoot the men, who had not been attempting to escape, as suspected bandits or sympathisers. However, the Police inquiry was terminated by the DPP before it had been able to make any investigations in Malaysia, on the basis that it was unlikely that sufficient evidence would be obtained to support a prosecution.

Following a BBC documentary into the incident, which included interviews with a number of Malaysian witnesses and/or relations of the victims, consideration was given by the War Crimes unit of the CPS as to whether to bring a prosecution. However, the CPS decided in 1992 that there would be an unassailable abuse of process argument on the basis of the delay since the original events and the termination of the 1970 investigation.

The decision under challenge resulted from a request made by a campaign group ‘Action Committee Condemning the Batang Kali Massacre’ for a public inquiry. The Foreign Secretary’s refusal to open an inquiry was upheld by both the Divisional Court and Court of Appeal.

Lord Mance gave the leading judgment, accepting the Claimants’ argument on the issue of jurisdiction. The Foreign Secretary had argued the acts of the troops involved were not attributable to his Majesty in right of the United Kingdom as they were acting under the local constitutional colonial arrangements, and/or that any investigative obligation placed on the United Kingdom had passed on independence to Malaysia.

Lord Mance held that the British Crown was not sovereign in Malaya in 1948, and any powers given to it by the Federation of Malaya in respect of the deployment of the British Army “must have been given to the King wearing the Crown of, and in the interests of, the United Kingdom.” Lord Mance concluded that those who died were in the British Army’s control at the time and that they were in the jurisdiction of the United Kingdom for the purposes of Article 1 of the ECHR to the extent that the ECHR applied at all.

Lord Mance rejected the argument that the United Kingdom would in any event no longer have any investigative obligation following independence:

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…. 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.

Lord Neuberger gave the leading judgment rejecting the substantive grounds for the appeal. He noted the development of the ECtHR’s “nuanced” approach to the temporal jurisdiction of the ECHR, in particular in Janowiec v Russia (2014) 58 EHRR 30. In Janowiec the Grand Chamber had 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).” Lord Neuberger summarised the requirements under Jankowiec for the imposition of an Article 2 investigative obligation as:

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.

Lord Neuberger held that the first criteria was 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.

With regards to the second criteria, Lord Neuberger cited Janowiec to the effect that the “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.” Lord Neuberger accordingly stated that the issue was therefore whether ‘the critical date’ is the date on which the ECHR came into force in the United Kingdom (1953) 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 (1966) as the Foreign Secretary argued. Lord Neuberger agreed with the Foreign Secretary’s interpretation. Accordingly, in so far as the appellants’ claim was based on article 2, it failed because the Strasbourg court would rule it inadmissible as the Killings occurred more than ten years before 1966.

Lord Neuberger went onto consider the Foreign Secretary’s argument that even if the ECtHR 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 under the 1998 Act. However, he declined to reach a decision with regards to the investigation into pre 2000 death as to the continued authority of the House of Lords’s decision in In re McKerr  [2004] UKHL 12 (limiting the retrospective application of the 1998 Act) in light of the subsequent ECtHR jurisprudence and the Supreme Court’s decision in In re McCaughey [2011] UKSC 20; and accordingly left this question open.

Lord Neuberger also considered, but did not decide, the argument that the main purpose of any inquiry would be to decide “historical truth”, and hence Article 2 could not be relied on. However, he did note that “[t]here 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.”

Lord Neuberger gave short thrift to any investigative obligation putatively imposed by customary international law holding:

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 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.

In any event, such a principle should not be incorporated into the common law where Parliament had made statutory provision for the investigation of deaths through the Coroners Act and the Inquiries Act.

Finally, Lord Neuberger held that the decision to refuse an Inquiry under s.1 of the 2005 Act could not be characterised as unreasonable or irrational applying conventional judicial review criteria. The decision could not be impugned. He further held that it was not appropriate to determine the Claimant’s arguments that the time had come to recognise proportionality, rather than rationality, as a basis for challenging administrative decisions. The issue had potentially profound and wide implications and would need to be argued before a panel of nine Justices.

In any event the appeal would fail even if it was based on proportionality as he rejected any common law duty  “simply in order to establish historical truth“, as it would “at least without more, open the door to demands that all suspicious deaths, however long ago, would have to be investigated.” He also noted that

[t]here 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 of the victims would be limited.

Comment

This decision of the Supreme Court may have some effect in dampening the momentum to invoke Article 2 in seeking to impose an investigative obligation to delve into the darker side of the post 1945 retreat from Empire. In particular due to the comments made regarding the relative lack of weight given to finding the truth per se, and as to the practical limitations on any inquiry conducted after such a delay. Lord Mance’s focus on the reality of the factual and legal guise that British troops were deployed under in particular situations has also left the door potentially open to renewed arguments that in other counter insurgencies in directly ruled colonies the Crown was acting in different capacities.

However, the Government will draw only slight comfort from the 1956 time limit for the application of the ECHR – the Mau Mau, Aden, Cyprus emergencies all involved equally notorious incidents occurring after 1956.

The issue of the extent to which the United Kingdom should be required to investigate historic deaths at the hands of British security forces – whether in Northern Ireland or across the Empire – is therefore likely to be one that the Supreme Court will have to consider again soon.

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