No public inquiry into alleged 1948 massacre by British troops, yet

21 September 2012 by

Communist prisoners held during the Malaya emergency Photograph: Jack Birns/Time & Life Pictures

Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another [2012]  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 [2012]  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.

The Case

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 [2011] 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more


  1. Having long protested against the treatment of Palestinians by the various terrorist gangs at a time when the British were charged with the protection of Palestine; and the cowardly manner in which we, the British, left those poor people to fend for them selves in the face of the superior financial support raining into the coffers of the fanatical Zionists, as a result of reports about the Holocaust; its victims, and under pressure from the USA, I would welcome such an enquiry, but it would be drawn out into eternity; with lawyers the sole beneficiaries.

    I learned, while living in Cyprus, of the predicament of so many non-Israelis in Jerusalem – once called the Holy City – who find their properties under daily threat from the policy of land-grabbing, by fair-means or foul, of the Israeli authorities who sequester, without any recourse to international law, the land that has been in Palestinian families for hundreds of years.

    Jerusalem was the Holy City of many – whether Christians, Moslems or Jews; no matter which faith, all had a place withing its walls; now, the parameters have changed; even Jews who criticise current Israeli policy may suffer retribution, and because so much of the world’s wealth is tied up in the Israeli sympathetic USA, the world looks on and does nothing.

  2. John D says:

    I do not claim to fully understand the legal reasoning involved in the findings reported above but there could be an additional case to call for an inquiry into the failure of British forces to protect Palestinian civilians and paramilitary forces during the Nakba events which took place in 1947/8 at a time when Britain still had a responsibility to protect civilians and others under the terms of the League of Nations/United Nations mandate which it had exercised after World War One, when Turkish forces were ejected from Palestine.
    The facts are on record that British forces stood by and did nothing while the Haganah, Irgun and Stern Gang systematically attacked, murdered, raped, looted and forcibly expelled Palestinians from their homes and their country.
    There may be people alive today who can act as witnesses to the events that took place at the time, as well as former troops and officers in the British Army who can attest to the events of 1947-48.
    Does anyone reading this blog have an opinion as to whether or not it is possible to call for such an enquiry based on the judgments recorded above?

  3. There can be no corner for shame to hide in.

  4. Geoffrey says:

    Is 1948 really “the recent past”?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: