Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another  EWHC 2445 (Admin), read judgment
Although the High Court has rejected an attempt to force the Government to hold a public inquiry into an alleged massacre of unarmed civilians by British troops in 1948, the case represents a further example of the use of the Courts to redress historical grievances.
There are two German words for dealing with the traumatic recent past, neither of which has a direct equivalent in English. This linguistic quirk reflects history and national self-identity. The defeats of the Kaiser, the Nazis and the GDR Communists led to national introspection in Germany, whereas the United Kingdom, on the winning side in each of the those three struggles, evaded such soul-searching. The post-war decline was relatively gentle and easy to fit in to the national myth of historical continuity. An Empire absent-mindedly acquired was considered to be the subject of an orderly and benevolent liquidation, with lasting benefits of railways and the rule of law left to the inheritors.
This set of cosy national assumptions has long been challenged by academic historians and those who witnessed or participated in the insurgencies that marked the end of Empire. Increasingly, the debate has drawn in lawyers and judges. Whether or not one views the Northern Ireland ‘Troubles’ in an Imperial context (a bitterly contentious, and not particularly enlightening, debate), the report of the Bloody Sunday Inquiry undoubtedly shocked a significant proportion of the public, including the Prime Minister. Further inquiries have been established, promised, or called for, into other allegations of state collusion and participation in killings in Northern Ireland. This July, in High Court proceedings, the UK Government made a number of admissions of torture in respect of three claimants who had been detained by the colonial administration in Kenya during the Mau Mau uprising in the 1950s. And in the case considered in this blog, Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another  EWHC 2445 (Admin), British soldiers stand accused of a planned and premeditated massacre of unarmed detainees during the Malayan Emergency, a massacre that was then covered-up.
On 11 December 1948, a patrol of 2nd Battalion, The Scots Guards detained the residents of Batang Kali, a village on a rubber plantation, during an operation to ambush a party of insurgents. The villagers were separated, men in one group, women and children in another, and were interrogated (including by means of simulated executions). The following morning, the women and children (and one man) were placed in a lorry and driven away. 23 men were then shot dead by the Scots Guards and the huts in the village burned to the ground. A 24th man had been killed the previous evening. Two accounts of what happened emerged. The first was that all 24 men had been shot while trying to escape, warnings having been shouted. The second was that the men had been executed on the orders of the sergeants leading the patrols, and that the story of the escape attempt had been fabricated to cover up the truth.
Over the years, the killings at Batang Kali have been the subject of investigations by various authorities and media organisations. The Attorney General of the Federation of Malaya conducted an inquiry in 1948 and 1949, but he later told the BBC that he did not question any of the surviving residents of the village, “for a very good reason, because they were most unlikely to talk and, if they did talk, to tell the truth”. In 1970, the People newspaper published an article, based on interviews with a number of the Scots Guards present that day, in which they admitted that the villagers had been massacred and the escape story fabricated. This led to a police investigation to consider whether criminal charges could be brought, but this too was abandoned before Malaysian witnesses were interviewed. Various petitions were made to the Queen in the 1990s by survivors of the incident and their relatives and a Malaysian Police inquiry commenced; these initiatives were met with delay and a lack of co-operation from the relevant British Government Departments [see para. 156 of the judgment in particular]. To date, no criminal charges have been brought, and no full and effective public inquiry established.
The Claimants in the present case sought a judicial review of a decision by the Defendant Secretaries of State not to hold a fresh inquiry into the killings. They argued that there was a duty under Article 2 ECHR (the right to life) and/or through the common law to investigate the killings, and that even if there was not, the decision to refuse an inquiry was unlawful on the grounds of unreasonableness and irrationality (failure to take into account relevant considerations). Their claim failed on all counts.
When the ECHR applied
The most interesting of the grounds of challenge was the Article 2 point. The killings took place before the ECHR had been adopted (and more than half a century before its incorporation into domestic law in October 2000). The Claimants therefore had to argue that the temporal scope of the Convention could be back-dated to 1948. They sought to do this by relying on two cases previously considered on the HR Blog – Re McCaughey  UKSC 20, and Silih v Slovenia (2009) 49 EHHR 996.
The controversial decision in Silih – followed, with some reservation, by the Supreme Court in Re McCaughey – was to the effect that the obligation under Article 2 to investigate a death was “detachable”, in that it could apply to events that occurred before a State acceded to the Convention. In order for the duty to arise there had to be a “genuine connection” to the rights bestowed by the Convention, either through the fact that a large part of the investigation into a death took place (or should have taken place) after the entry into force of the Convention, or by the more nebulous need to protect the underlying values of the Convention.
The back-dating of obligations was extended still further by the decision in Janowiec v Russia (App. No. 55508/07 and 29520/09), a case concerning the Katyn massacre of Polish officers in 1940 on the orders of the Stalin’s Politburo. The Strasbourg Court held that the principles set out in Silih could apply to deaths that took place before the Convention itself was adopted, although they found on the facts of that case that there was insufficient connection to impose a current duty to investigate the killings, which took place 58 years before Russia acceded to the Convention and at a time when Russia as an independent state did not exist. (It is relevant to note that an application to the Grand Chamber in Janowiec is pending.)
The High Court’s treatment of McCaughey and Silih in Cjon Nyok Keyu is interesting for its brevity. There was no attempt to unravel the Strasbourg Court’s gnomic references to “genuine connections” or the “underlying values of the Convention”. Instead, the judgments were brushed aside, in a single paragraph, as being clear authority for the proposition that “there is no obligation to conduct an inquiry into a death prior to October 2000 or to re-open enquiries that did not comply with Article 2”. Janowiec was cited and quoted – before being dismissed as inapplicable as the Court was bound by Re McCaughey. It will be interesting to see whether the somewhat dismissive attitude to these authorities is followed in other proceedings.
No common law duty
The argument that there was a common law duty to hold an inquiry was rejected on two basis. The first was that it was contrary to the Court’s view of Re McCaughey, by which it was bound. Second, and in any event, the Court held that the relevant principle of international law on which the Claimants had based their argument was not accepted in 1948 and should not be given retrospective effect.
The lengthiest part of the Court’s judgment concerned the question of the responsibility for the soldiers’ actions (which it found lay with the UK Government), and the question of the lawfulness of the Defendant’s decision to refuse a public inquiry. On the latter point, the Court held that the decision had been reasonable and had taken into account relevant considerations. In particular, the Court was influenced by three factors; (i) that more than 60 years had passed since the events; (ii) that the facts remained controversial – there being evidence in support of both the “escape attempt” and “massacre” explanations of the killings; (iii) that substantial resources would be consumed by any inquiry.
In those circumstances, the Secretaries of State had been entitled to conclude that it was a real possibility that an inquiry would not come to a definitive conclusion, would not provide useful recommendations, and would not confer the benefits of catharsis, accountability and the restoration of public confidence that such investigations were intended to produce [see paragraphs 124 and 176, and in particular paragraph 157 on the purposes of an inquiry].
It has been reported that the Claimants will seek to take the matter to the Supreme Court.
Not a complete loss
Even if the High Court’s judgment stands, the Claimants will have achieved at least part of their purpose. The most undervalued role of a public inquiry (and one not considered in this judgment) is to bring to public attention the documents, records and testimony concerning disputed events, and to invite critical scrutiny of them. Litigation, and in particular the duty of disclosure on parties to an action, can partially replicate this process whether or not an inquiry is not forthcoming at the end of it.
The Mau Mau proceedings led to the discovery of a large number of colonial files that had not been released to the National Archive, which can now be considered by writers, journalists and historians. The Batang Kali killings have received considerable attention as a result of the case, and the value of the resulting debate is not lost if it takes place in newspapers and seminar rooms rather than before a judge.
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