Saturday, November 28, 2015

Supreme Court admits British troops committed ‘mass murder’ in Batang Kali? What will Najib do now?

Shocking - a crime is a crime, and saying that it was too long ago is no excuse... The Supreme Court Judgment dated 25/11/2015 can be found below. Reading paragraph 8-59 of the Judgment will tell you the facts of what happened.

The government is not obliged to hold a public inquiry into the 1940s killing of 24 Malayan villagers by a British army patrol – even though it may have been a war crime – because the atrocity occurred too long ago, the supreme court has ruled.

The application to court is really about getting a proper inquiry/investigation done.

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”.
It was shameful how the British avoided doing a proper inquiry and investigation. In short, the laws do not require them to do so ... and too long a time has past. Of the 5 Supreme Court judges, there was one that dissented - Lady Hale.

What will Najib and our BN government do now? Will we want the TRUTH about the Batang Kali incident to come out - or is our government happy with LIES still in the official British record? 

What will the UK government do? Will they at the very least amend their official records to reflect the truth? Or will they do nothing and let LIES remain on record. Would the government apologize to the victims, their families and the people of Malaysia or....?

Supreme Court admits British troops committed ‘mass murder’ – Malaya massacre lawyer

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A wounded insurgent being held and questioned after his capture in 1952 © Wikipedia
Relatives of ‘innocent’ Malayans slain by British troops in 1948 have lost their fight for an inquiry, but their lawyer says the UK courts have conceded ‘mass murder’ occurred.
The Supreme Court ruled on Wednesday that the appeal brought by relatives of the 23 men killed in the attack – referred to as Britain’s ‘My Lai’ after a similar atrocity carried out by US troops in Vietnam – would not be upheld.

The Malayan Emergency was fought from 1948 to 1960 in what is modern-day Malaysia between Commonwealth armed forces, including thousands of British troops, and anti-colonial guerrillas.
The UK’s involvement stemmed largely from British ties to tin and rubber interests which were seen as critical to the UK’s post-war recovery.
Men from the British Scots Guards regiment were responsible for the attack. The long campaign by the families of the victims has spilled into another row about when cases of colonial brutality are allowed to disappear into history.

John Halford, of Bindmans solicitors, representing the Batang Kali families, told the court: On 12 December 1948, British soldiers left the bodies of 24 innocent, unarmed men riddled with bullets and the British government left their families without a credible explanation.

He maintained the courts had denied the families an explanation but did acknowledge “the innocence of those killed, the failures to investigate and the ‘overwhelming’ evidence of mass murder.

Halford said the UK has been found responsible and should now apologize, “withdraw the false account given to parliament,” and address the issue “including by funding a memorial.

If it does not, the blood of those killed at Batang Kali will indelibly stain the concept of British justice.

Speaking to RT, one veteran of the conflict also criticized the court’s response.

Walter Heaton, 84, who was sent to Malaya in 1948 with the Scots Guard sister regiment the Coldstream Guards, told RT there is “no run-out date on justice.

Murder is murder. There should [be] no limit on justice,” he said, questioning why dire conditions in the “concentration” camps used to forcibly house Malayans were not discussed more in the case.

At a prison-like facility named Kampong Coldstream, which was run by his regiment, Heaton said conditions were awful. People were only put there after being rounded up in clearance operations.

He recalled watching “kids crying as soldiers burned their food and their things,” before taking the families away to the camps.

Lord Neuberger, president of the Supreme Court, ruled the case is too old to re-open, a move which could affect a number of cases of abuse and violence by British security forces during the Northern Irish Troubles.

Neuberger conceded theevidence that came to light” was “compelling and suggests that the killings were unlawfulbut said the shootings had occurred before a crucial ‘right to petition’ was recognized by British courts.

In April, ahead of the appeal, Halford said “when six of [the soldiers] have confessed to murder, eyewitnesses remain alive and forensic tests can confirm the killings were close-range executions, the law should demand an answer from the state.

After all, those killed were British subjects living in a British-protected state,he added. - RT, 25/11/2015

Relatives lose fight for inquiry into 1948 Batang Kali 'massacre'

UK court ruling over shooting of Malayan villagers by British soldiers will affect inquiries into Northern Ireland’s Troubles

British troops were conducting operations against communist insurgents during the Malayan Emergency when the plantation workers were killed. Photograph: Haywood Magee/Getty Images

Owen Bowcott Legal affairs correspondent

The government is not obliged to hold a public inquiry into the 1940s killing of 24 Malayan villagers by a British army patrol – even though it may have been a war crime – because the atrocity occurred too long ago, the supreme court has ruled.

The majority decision by the UK’s highest court that the duty to investigate dates to only a 10-year grace period before 1966, when the right of individual petition to the European court of human rights was introduced, may, however, have profound consequences for inquiries into Northern Ireland’s Troubles.

The judicial review challenge, brought by the relatives of 24 unarmed men killed by Scots Guards at Batang Kali on 11 and 12 December 1948, has widened into a dispute about when unresolved claims of injustice are allowed to disappear into the past.

Northern Ireland’s attorney general, John Larkin QC, and several Northern Irish human rights groups intervened on different sides in the case because of the precedent it would set for the official duty to investigate legacy cases from the Troubles. 

The impact of the ruling will be considered by the government and authorities in Belfast. While there have been inquiries into Bloody Sunday and several other controversial killings, many deaths caused by the armed forces and police in Northern Ireland are still the subject of long delayed inquests. 

There have been calls for public inquiries into the so-called Ballymurphy massacre in August 1971, when 10 people were killed by soldiers in west Belfast and into alleged collusion between police and loyalist paramilitaries in mid-Ulster during the mid-1970s. 

Delivering judgment in the Batang Kali case, Lord Neuberger, president of the supreme court, recounted how a Metropolitan police investigation into the alleged massacre was launched in 1969 after a four guardsmen gave interviews to the People newspaper. 

A number of soldiers from the patrol were later interviewed under caution and confirmed they had been ordered to shoot the villagers because they were either bandits or communist sympathisers. 

Several soldiers revealed they had been instructed by the army to lie and maintain that the villagers had been shot while trying to escape. The police investigation ran into Foreign Office objections and was eventually terminated.

The supreme court judgment records a note made by DCS Frank Williams in July 1970 that “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 view when the new Conservative government came into office [in June 1970]”.

Lord Kerr, one of the court’s justices agreeing with the majority, said the “overwhelming preponderance of currently available evidence” showed “wholly innocent men were mercilessly murdered and the failure of the authorities of this state to conduct an effective inquiry into their deaths”.

He added: “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.”

Lord Neuberger said: “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 (the right to life under the European convention on human rights) nor customary international law would require such an investigation. 

“It is also a case where the [government] has 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.” 

The killings may have been unlawful, Lord Neuberger concluded, but they occurred more than 10 years before the critical date when the right of petition to the Strasbourg court was recognised by the UK and created a duty to investigate.

John Halford, of Bindmans solicitors, who represented the families of the Batang Kali victims, said: “On 12 December 1948, British soldiers left the bodies of 24 innocent, unarmed men riddled with bullets and the British government left their families without a credible explanation. Our courts have decided there is no legal right to that explanation. But they have been able to acknowledge the innocence of those killed, the failures to investigate and the ‘overwhelming’ evidence of mass murder. 

“Just as importantly, Britain has been found responsible. All of this creates the clearest of moral imperatives on the British government to apologise, withdraw the false account given to parliament and to compassionately address what has been done, including by funding a memorial. If it does not, the blood of those killed at Batang Kali will indelibly stain the concept of British justice.”

Yasmine Ahmed, director of Rights Watch UK, said: “The outcome of this case has considerable implications in Northern Ireland where many of the deaths that occurred during the Troubles happened before the UK government enacted the Human Rights Act in 1998 … The court today recognised that the UK Government has an obligation to carry out article 2 [right to life] compliant investigations into Troubles-related deaths in Northern Ireland.”

Darragh Mackin, a solicitor with the Belfast firm KRW Law which represented some of the Northern Ireland NGOs, said: “Whilst not being a satisfactory result for the relatives of victims of the Batang Kali massacre, the judgment does have an important impact for dealing with historic related murders in this jurisdiction. The court has held that the obligation on the British state to investigate suspicious deaths arises from the date the state granted the right of individual petition, namely 1966.

“This therefore gives rise to an obligation on the British government to undertake human rights compliant investigations into conflict-related incidents, where necessary in order to discharge its duties.” - The Guardian, 25/11/2015


Keyu and others (Appellants) v Secretary of State for Foreign and Commonwealth Affairs and another (Respondents)


Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Hughes


25 November 2015

Heard on 22 and 23 April 2015

Michael Fordham QC
Danny Friedman QC
Zachary Douglas QC
(Instructed by Bindmans LLP)

Jonathan Crow QC
James Eadie QC
Jason Coppel QC
Marcus Pilgerstorfer
Amy Rogers
(Instructed by Government Legal Department)

Intervener (Attorney General for Northern Ireland Written Submissions Only)

Interveners (The Pat Finucane Centre and Rights Watch UK)
Ben Emmerson QC
Adam Straw
(Instructed by KRW Law LLP)

LORD NEUBERGER: (with whom Lord Hughes agrees)


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.

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.”

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

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.

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.)

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 20, 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 (2008) 46 EHRR 42, 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 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”.

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.

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.

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 decision-maker 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
“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 would have been likely to reach a different conclusion at this stage.”

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 39, [2014] AC 700, paras 20 and 74 should now be applied in place of rationality in all domestic judicial review cases.

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 decision-maker 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.

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] 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

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.
“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.”

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.
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;” …

15. Emergency powers, emergency legislation; trading with the enemy; enemy property …”

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 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.

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.

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 18, 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.

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 37. 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 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.

214.          One may begin the review of ECtHR case law with Blečić v Croatia (2006) 43 EHRR 48. 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)

223.          In Janowiec v Russia (Application Nos 55508/07 and 29520/09) (2014) 58 EHRR 30, 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.

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 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 (Al-Skeini) 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’”.

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:
“… 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 …”

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.

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.

“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 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.”

“… 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’.”

“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.”

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 (2014) 58 EHRR 30, which clarified the court’s earlier decision in Šilih v Slovenia (2009) 49 EHRR 37. 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 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.

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 18), but that does not affect the principle. Third, 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 55). 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.

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 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”.

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).

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 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).

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.

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 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).

(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.