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 application to court is really about getting a proper inquiry/investigation done.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.
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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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 the “evidence that came to light” was “compelling and suggests that the killings were unlawful” but 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
JUDGMENT
Keyu and others (Appellants) v Secretary of
State for Foreign and Commonwealth Affairs and another (Respondents)
before
Lord Neuberger, President
Lady Hale, Deputy
President
Lord Mance
Lord Kerr
Lord Hughes
JUDGMENT GIVEN ON
25 November 2015
Heard on 22 and 23 April
2015
Appellants
Michael Fordham QC
Danny Friedman QC
Zachary Douglas QC
(Instructed by
Bindmans LLP)
|
Respondents
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)
Introductory
2.
The decision not to hold a public inquiry was taken by the respondents
pursuant to section 1(1) of the Inquiries Act 2005 (“the 2005 Act”). That
section provides that “[a] minister may cause an inquiry to be held … in
relation to a case where it appears to him that” certain conditions are
satisfied including “(a) particular events have caused, or are capable of
causing, public concern” and “(b) there is public concern that particular
events may have occurred”.
3.
The appellants, who are closely related to one or more of the victims
(and some of whom were children in the village at the time), contend that the
killings on 11/12 December 1948 (“the Killings”) amounted to unjustified
murder, and that the United Kingdom authorities have subsequently wrongly
refused to hold a public inquiry, and have sometimes deliberately kept back
relevant evidence. The appellants contend that a public inquiry is required on
three different grounds. First under article 2 of the European Convention on
Human Rights (“the Convention”), which came into force for the United Kingdom
on 3 September 1953, and was extended by the United Kingdom under article 56 of
the Convention to the Federation of Malaya on 23 October 1953; secondly under
the common law by virtue of its incorporation of principles of customary
international law; and thirdly under the common law through the medium of
judicial review. These three grounds each raise a number of issues, sometimes
overlapping. However, there is also a jurisdiction issue, given that the events
in question occurred in what was then a different jurisdiction and is now also
a wholly independent state.
4.
I will first set out the relevant facts, and after mentioning the
jurisdiction issue, I will deal with the three grounds raised by the
appellants, taking them in the order in which they have been just set out,
which is the same order in which they were raised by Mr Fordham QC in the
course of his excellent written and oral arguments on behalf of the appellants.
5.
In the first half of the 20th century, the country which is now Malaysia
was part of the British Empire. In 1941, during the course of the Second World
War, it was invaded and occupied by the Japanese. It was subsequently re-taken
by the British in 1945, the year in which the Second World War ended.
6.
Shortly thereafter, there was an insurgency, which became known as the
“Malayan Emergency”, and in which members of what had been the communist
Malayan People’s Anti-Japanese Army took a leading part. Several British
planters and businessmen were killed and there were violent incidents within a
number of states, including Selangor. In June 1948, the Colonial Secretary
approved the use of emergency powers in Malaya, and the High Commissioner
declared a state of emergency on 12 July 1948 for the entire Federation, and
three days later he issued Emergency Regulations.
7.
United Kingdom ministers agreed to send a brigade of the British army to
Malaya by the end of August 1948. The cost was to be borne by the Treasury.
Many of the troops sent were national servicemen, with only limited training in
relation to operations of this kind. Part of the brigade comprised the Second
Battalion of the Scots Guards. They arrived in Singapore in October 1948 and
after three weeks training, and they were sent to areas of the Federation where
“bandit activity” had been reported. G Company of the Second Battalion was
based at Kuala Kubu Bahru where they underwent training for jungle warfare,
apparently for the first time.
8.
Batang Kali is located approximately 45 miles northwest of Kuala Lumpur
in the district of Ulu Selangor. It was then a village consisting of families
who inhabited ‘kongsi’ residential huts, which are wooden longhouses raised
from the ground with a veranda entrance. The village was within a rubber
plantation owned by a Scotsman, Thomas Menzies, the chairman of the Selangor
Estates’ Owners Association, and most of the villagers worked on the estate.
9.
G Company of the Second Battalion of the Scots Guards was based at Kuala
Kubu Bahru. The senior police officer for the district asked Captain Ramsey
(the second-in-command of the Company) to send patrols to two separate areas,
to ambush a party of insurgents expected to arrive the following day. Captain
Ramsey commanded one of the patrols, and Lance Sergeant Charles Douglas led the
other because there was no other available commissioned officer. Lance Sergeant
Thomas Hughes was Douglas’s second in command, and the patrol included a Lance
Corporal and 11 guardsmen (almost all of whom were undertaking National
Service). A Malay Special Constable (Jaffar bin Taib) acted as a guide and they
were accompanied by two police officers, Detective Sergeant Gopal and Detective
Constable Woh.
10.
Early in the evening of 11 December 1948, the patrol took control of the
village. Fifty adult villagers and some children, including two of the
appellants, were detained. The villagers, who were a range of ages, were not
wearing uniforms and had no weapons. The men were separated from the women and children
by the patrol. They were all detained in custody overnight in the kongsi huts. Interrogation
of the villagers then took place, and there were simulated executions to
frighten them, which caused trauma to some.
11.
A young man was shot dead by the patrol in the village that evening, and
he has now been identified as Loh Kit Lin, the uncle of the second appellant.
12.
During the interrogations, the police officers secured information from
one of the men, Cheung Hung, the first appellant’s father, about armed
insurgents who occasionally visited the village to obtain food supplies. This
information was passed to the patrol.
13.
On the morning of 12 December, Lim Tian Sui, who was the ‘kepala’
(village headman), and the father of the third appellant, arrived in the village
by lorry, which was searched and found to contain some rice. Lim Tian Sui was
detained. The women and children and one traumatised man were then ordered onto
the lorry. It was driven a little way from the kongsi huts. Those aboard were
guarded by members of the patrol before being driven away from the plantation.
14.
The kongsi hut with 23 men was then unlocked by other members of the
patrol. Within minutes all 23 were shot dead by the patrol. The kongsi huts
were then burned down. The patrol then returned to its base.
15.
The first known document to describe the Killings was a confidential
telegram sent by the High Commissioner, to the Colonial Office on 13 December
1948. It stated that “26 bandits have been shot and killed by police and
military in the Kuala Kubu area of Selangor” and that one “bandit” had been
wounded and captured. Also on 13 December 1948, a journalist working for The
Straits Times, Harry Miller, drove to the Scots Guards base at Kuala Kubu
Bahru. He interviewed Sergeant Douglas who said that all those shot on 11 and
12 December 1948 had been trying to escape when about to be taken to the
company’s base for interrogation. He also said that “a large quantity of
ammunition had been found under a mattress”. This account was published in The
Straits Times on 13 December 1948 and, four days later, the General Officer
Commanding Malaya, Major General Sir Charles Boucher, stated at a press
conference that this was an “extremely accurate” description of what had
occurred.
16.
On 17 December 1948, a Far-Eastern Land Forces British Army Report on
relevant incidents was compiled setting out the actions that had been taken to
combat the insurgency. In relation to the incident in question it noted that a
patrol had “captured 26 male bandits” who had been “detained for a night in kongsi
huts” and that, following a successful ambush of a lorry, the “bandits
attempted mass escape. 25 killed. One recaptured”. The official War Office
report of 22 December 1948 repeated this summary, and referred to the event as
a “very successful action”.
17.
This official account was not universally accepted. The families of
those killed appealed for help to various organisations and the Chinese
Consul-General requested an inquiry, suggesting that the Killings were
unjustified given that all the deceased were unarmed. Claims appeared in the
Chinese press that there had been a massacre. On 22 December 1948, Mr Menzies
stated publicly that all those killed were his employees with records of good
conduct, and that there had been no strikes or other problems. On 24 December
1948, The Straits Times called for an inquiry.
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.
19.
It seems that there were separate investigations by the police and the
army, although scant and contradictory information survives as regards the
detail and the extent of these undertakings. For instance, Sir Charles Boucher
told the press on 5 January 1949 that he had instigated an investigation
immediately after he heard about the incident, but no details have been
uncovered.
20.
The only contemporaneous statements that have been found are from
Detective Sergeant Gopal, Detective Constable Chia Kam Woh, and two statements
from Cheung Hung. Officers Gopal and Woh indicated that Cheung Hung had told
them about visits by “bandits” in order to obtain food. Cheung Hung told the
police that this was common knowledge but the villagers were afraid to inform
the authorities. The officers stated that they separated Cheung Hung, and that
they were in the area of the store when the 23 men were shot. Cheung Hung, who
has given somewhat differing accounts over the years, indicated that he had been
in a yam patch at the time of the shooting. He had not seen any attempted
escape but instead the men were shot when they were being walked away from the
huts.
21.
Part of a telegram headed “Incident at Batang Kali” from the High
Commissioner, Sir Henry Gurney, to the Colonial Office dated 1 January 1949 has
survived. It stated that “the soldiers who had been posted with object of
protecting the clearing from external attack did everything that it was
possible for them to do to stop the escaping Chinese before resorting to
force”. It also pointed out that:
22.
A further document from the High Commission headed “Supplementary
Statement” was released to the local press on 3 January 1949, and published the
following day in The Straits Times, and The Times in London.
After setting out some background information, and explaining how some arms and
ammunition had been discovered in the village, it went on to say this:
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.”
23.
At a press conference on 5 January 1949, Sir Alec Newboult, Chief
Secretary of the Federation of Malaya, said, “I have no doubt at all that these
men made an attempt to escape from legal custody, and having made that attempt
they had to stand the consequences”. He went on, “Let us be absolutely fair
with the security forces. The point at issue is that, in starting the attempt
to escape, the men were warned and continued to make their escape and the
patrol opened fire”. Sir Charles Boucher added: “I think the public should know
that troops and police are trained never to open fire unless it is necessary,
but when they have to fire, the fire is always intended to kill. It cannot be
anything else”.
24.
On 26 January 1949, the Colonial Secretary Mr Creech Jones gave a
written answer to a Parliamentary Question about the incident. This stated:
26.
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”.
27.
In the next few days, two of the soldiers, Alan Tuppen and Victor
Remedios, gave interviews on British national television and radio confirming
an account of unlawful killing. Sir Stafford Foster-Sutton was also interviewed
on the BBC News. All of the transcripts are available. Sir Stafford repeatedly
described the killings as “a bona fide mistake” and made it clear that “anyone
who knew anything about it at the time entirely agreed that it was a bona fide
mistake”. Alan Tuppen confirmed that in his own mind the killings were
tantamount to murder.
28.
For their part, Sergeant Douglas (by then a Regimental Sergeant Major)
and former Sergeant Hughes reiterated the account given in 1948 by Sergeant
Douglas, that all those shot on 11 and 12 December 1948 had been trying to
escape when about to be taken to the company’s base for interrogation. An
official of the Ministry of Defence was present when Sergeant Douglas was
interviewed. He commented that the interview was “absolutely fair and correct
in all respects”.
29.
A reporter from The People then interviewed Cheung Hung who was
still living in Malaysia. He said that the troops had separated the women and
children from the men, divided the men – who did not attempt to escape – into
groups and shot them. The Straits Times interviewed one of the guides,
Inche Jaffar bin Taib, who said that, shortly before the Killings took place, a
sergeant told him not to look at the male detainees. After he had turned his
back he heard a burst of gunfire, and when he turned round he saw dead bodies
everywhere. The sergeant told him that he would be jailed if he breathed a word
about what had happened.
30.
The UK government issued a press statement indicating that it was taking
the matter very seriously. Internal memoranda noted that a three-year limitation
period prevented prosecutions under the Army Act 1861 but given the view was
taken that prosecutions in the civilian courts remained a possibility, a
decision on whether to institute criminal proceedings necessarily came before
the government could resolve whether to hold an inquiry.
31.
The Director of Public Prosecutions, Sir Norman Skelhorn QC, received
advice on 27 February 1970 from a prosecution lawyer, with which he and the
Attorney General agreed, that the Metropolitan Police should investigate what
had occurred. It was proposed that this inquiry into the facts was to include
interviewing all the guardsmen, the police officers who accompanied the patrol,
the interpreter and the sole survivor. Sergeants Douglas and Hughes were to be
interviewed last. On 18 March 1970 the DPP informed the Ministry of Defence
that he would extend the inquiry beyond the United Kingdom if he considered
this to be a necessary step. On 13 April 1970 the Malaysian Government offered
to assist the investigation.
32.
Responsibility for the investigation was given to the Metropolitan
Police, and the lead officer, Detective Chief Superintendent Williams,
contemplated taking two months to interview the guardsmen in the United Kingdom
before providing an interim report to the DPP. If authority was given to pursue
investigations in the Far East, he envisaged needing six weeks to interview 36
witnesses in Malaysia. He also had in mind the possibility of exhuming the
bodies. The sergeants were to be interviewed as the last stage before he
submitted his report to the DPP. He expected that the entire process would take
approximately six months.
33.
Four guardsmen, William Cootes, Alan Tuppen, Robert Brownrigg and George
Kydd, were interviewed under caution. They each admitted that Sergeant Hughes
had ordered them to shoot the men, who had not attempted to escape, as
suspected bandits or sympathisers. None of the guardsmen had taken the option
that was offered of not participating. A further guardsman (whose record of
interview is not available), Keith Wood, also admitted when interviewed that
the men were murdered. Victor Remedios did not answer the officer’s questions,
but did not withdraw his earlier admission of murder. Additionally, Robert
Brownrigg and George Kydd said that they had been instructed by the army to
provide the false explanation that the men had been trying to run away.
34.
Two lance corporals, George Porter and Roy Gorton, said that the men had
been shot whilst attempting to escape. The sergeants were not interviewed
because the inquiry was terminated. DCS Williams spoke to the two reporters and
he was critical of their methods, including the fact that William Cootes had
been paid £1,500 for his initial statement to The People, and the fact
that it appeared that the journalists may have given incorrect information
concerning the possibility of a prosecution.
35.
Meanwhile, in the spring of 1970, the High Commissioner in Kuala Lumpur
and the Foreign and Commonwealth Office were expressing concern that the
Malaysian Government “may come under pressure to open their own inquiry or
press HMG”, that the investigation might “revive local feeling”, and cause
“political difficulties”. A letter of 19 May 1970 from the High Commission to
the FCO expressed the view that the presence and activities of an investigating
team “would be given close and embarrassing attention”. It was considered
“extremely doubtful if a villager’s recollections of an incident which happened
22 years ago could ever be accurate, especially as the terrain has since
changed beyond recognition”. The letter went on to state that “We quite realise
the political importance of allowing justice to be seen to be done over Batang
Kali, but it is worth bearing the limitations in mind”.
36.
On 2 June 1970 Mr P J Sullivan from South West Pacific Department at the
FCO wrote to the office of the DPP. Having referred to the likely publicity
that the arrival of a British police team in Malaysia would cause, especially
if the team wished to take evidence in the area of Batang Kali itself, he expressed
doubts about the reliability of any evidence which was given, in the light of
the passage of time and also because of the possible incentive of compensation.
39.
Following the General Election on 18 June 1970, the new Attorney
General, Sir Peter Rawlinson QC, indicated at a meeting with the DPP on 26 June
1970 that it was unlikely that sufficient evidence would be obtained to support
a prosecution and therefore the investigation should go no further. This
decision was communicated to the Ministry of Defence by the DPP on 29 June
1970, with a fairly full explanation, which concluded that, in the light of the
passage of time and the inconsistent statements which had been made:
42.
The deaths at Batang Kali next gained significant public prominence when
the BBC broadcast a documentary on 9 September 1992 about the Killings,
entitled In Cold Blood. This was based on a range of materials, which
included interviews with Cheung Hung and a number of other Malaysians who were
related to the men who had been killed or who had been present in Batang Kali
when these events occurred. This was the first time many of them had been
interviewed. One of the officers involved in the 1970 Metropolitan Police
investigation, Detective Sergeant Dowling, and three guardsmen who had not been
on the patrol were also interviewed and some of the statements made during the
1970 police interviews with the guardsmen were read out. It was said they stood
by their accounts but refused to appear. The Ministry of Defence declined an
invitation to participate. In correspondence with the BBC, it simply confirmed
the account given in 1948 and in 1949.
43.
On 15 September 1992, immediately following the broadcast, Ministers were
briefed by Richard Suckling, a senior government legal adviser. The briefing
described the BBC documentary. It noted that a fact which had not been referred
to in the programme was the substantial conflict of evidence between the
soldiers who had been present and had given statements. It also referred to the
possible differences between what may have been thought to be acceptable in
1948 and in 1992.
44.
Following the broadcast, the Crown Prosecution Service reviewed whether
any further steps should be taken. In a draft note of the review dated 26 March
1993, Jim England of the Service’s War Crimes Unit observed:
45.
However, Mr England said that he “was certain in [his] own mind that it
would be pointless now to re-open this investigation”, partly because “if
anyone was charged they would, in view not only of the long and what must be
regarded as a consequentially prejudicial delay” but also because “the
termination of inquiries in 1970, have an unassailable abuse of process argument
so as to avoid conviction”. It would appear that no consideration was given to
holding an inquiry rather than pursuing a criminal prosecution.
46.
Meanwhile, on 8 July 1993, Foo Moi, the wife of one of the men who had
been shot, and Cheung Hung, the first appellant’s father, presented a Petition
to the Queen through the British Embassy in Kuala Lumpur requesting the British
government to reopen the investigations, prosecute those responsible for the
deaths and to pay compensation. No such action was taken and a telegram from
the High Commission to the FCO of 7 February 1994 observed:
48.
By April 1994 the Petition had been submitted to the Palace with a draft
response which was described as “essentially non-committal”, while not closing
the door to further action if sufficient new evidence is forthcoming.
49.
In December 1994, the High Commissioner responded to the Malaysian
Chinese Association who inquired as to the progress of the response to the
Petition that he was looking into the matter. However, a response to the 1993
Petition was never forthcoming.
50.
Meanwhile, on 14 July 1993, the Royal Malaysian Police began
investigating the Killings locally in response to a report of the massacre as a
crime made that day by three surviving family members: Foo Moi, and the first
appellant’s father and mother, Cheung Hung, and Tham Yong. The Malaysian Police
took statements from them and a number of others who were either related to the
men who had been killed or who had been in the village at the time, as well as
three retired police officers. Contrary to his statement of 14 December 1948,
Detective Constable Chia Kam Woh denied being present at Batang Kali on the
day.
51.
Having been made aware of the petition and Royal Malaysian Police
investigation, on 2 February 1994, Mr England sent his report on the 1970
Metropolitan Police Force evidence and the In Cold Blood documentary to
the FCO. His covering letter stated:
53.
An interim Royal Malaysian Police report of 31 May 1995 concluded that
further inquiries were necessary, including obtaining the views of the chief
pathologist as to examining the bodies and taking statements from the Scots
Guards.
54.
A request was made through Interpol for British help which was passed to
the Metropolitan Police War Crimes Unit. This included a request for the names
of the Scots Guards on the patrol. It took until 31 July 1996 to send the
names. The addresses were then sought by the Royal Malaysia Police, but nothing
further seems to have been supplied.
55.
Officers involved in the investigation planned to visit the United
Kingdom to pursue their inquiries here. However, this never took place. The
Royal Malaysia Police file was closed on 30 December 1997, it would appear due
to a lack of evidence to support criminal charges.
56.
In 2008, a campaign group called the Action Committee Condemning the
Batang Kali Massacre was formed. On 25 March that year it sent a second
petition to the Queen seeking an apology and compensation. In October, the
appellants’ solicitors wrote to the Foreign Secretary requesting a response to
the petition.
57.
On 12 December 2008, a supplementary petition was presented seeking
additional relief including a public inquiry. On 21 January 2009, the High
Commissioner gave a response that was subsequently withdrawn following pre-action
correspondence from the appellants’ solicitors:
58.
A barrister, Dr Brendan McGurk, was then instructed to review the
available material on the Killings for the respondents. On 21 August 2009, the
appellants’ solicitors were sent a provisional decision based on this review
refusing to establish an inquiry or to investigate. They were invited to
comment. Before doing so, they secured access to view the police files that Dr
McGurk had seen and to some of the CPS material. They provided copies of a book
that had just been published about the killings, Slaughter and Deception at
Batang Kali by Ian Ward, the former Daily Telegraph War Correspondent, and
Norma Miraflor. With their representations, they forwarded material from the
1993-1997 Malaysian Police file that had been supplied to them by a journalist
that had not been seen by Dr McGurk or the British authorities. They also made
the respondents aware of the views of archaeologist Professor Sue Black from
the Centre of Anatomy and Human Identification at the University of Dundee, as
to the prospects of disinterment revealing new evidence and the extent of the
process required.
59.
On 29 November 2010 the Treasury Solicitor wrote to the appellants’
solicitor communicating the respondents’ decision to refuse to hold an inquiry
into the Killings, and setting out their reasons.
60.
The instant proceedings were issued on 25 February 2011 by way of an
application for judicial review. The Scots guardsmen involved in the patrol who
were known to be alive and could be traced were served as interested parties
but did not participate. Permission was granted on 31 August 2011 by Silber J.
61.
On 4 November 2011 the Treasury Solicitor sent a letter to the
appellants’ solicitor stating that the respondents had reviewed and confirmed
their decision not to hold an inquiry following a submission from officials
addressing an argument concerning the adequacy of the previous investigations.
62.
Upon the appellants’ application for disclosure of documents by the
Metropolitan Police, on 1 May 2012, Sir John Thomas P made an order stating: “I
cannot be satisfied that these documents are documents that must be disclosed,
but the pragmatic solution to the issue is for the documents to be made
available to the claimants’ solicitors, who can then apply to put those which
are relevant (and only those) in due course before the court”.
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
65.
On this issue, I have read in draft the judgment of Lord Mance. I agree
with his conclusion that, in so far as the respondents’ case is based on lack
of jurisdiction, it should be rejected for the reasons which he gives.
66.
Article 2.1 provides that “everyone’s right to life shall be protected
by law” and that “no one shall be deprived of his life intentionally” save
pursuant to a court order. According to well-established Strasbourg
jurisprudence, this article has given rise to what is now recognised as a
“separate and autonomous duty … to carry out an effective investigation” into
any death which occurs in suspicious circumstances – see the Grand Chamber
judgment in Šilih v Slovenia (2009) 49 EHRR 37, para 159. The
respondents in this case unsurprisingly do not argue that, at least if one
ignores the fact that they occurred in 1948, the Killings would not fall within
this principle.
68.
The Killings took place in December 1948 and the Convention was only
finally agreed in November 1950. In those circumstances, at any rate at first
sight, it might be thought that no right, however fundamental or important,
could arise under the Convention in relation to facts which occurred before the
Convention came into force. Indeed, in accordance with article 28 of the Vienna
Convention on the Law of Treaties 1969, that is the normal rule in relation to
the application of the Convention – see Blečić v Croatia (2006)
43 EHRR 1038, paras 45-72 and Šilih at para 140.
69.
However, the law on this aspect has been interpreted by the Strasbourg
court, specifically in relation to the duty to investigate suspicious deaths,
in what may be characterised as a more nuanced way. The law was developed in a
number of cases of which Šilih was of particular importance. In that
case, as already mentioned, the Grand Chamber held in para 159 of its judgment
that the duty to investigate suspicious deaths had “evolved into a separate and
autonomous duty” on a state, which was “a detachable obligation arising out of
article 2 capable of binding the state even when the death took place before
the [date when the Convention was binding on the state]”. However, the guidance
which the court then gave as to how it was to be decided whether that separate
and autonomous duty had arisen was subject to substantial criticism (not least
in the concurring opinion of Judge Lorenzen and the dissenting opinion of
Judges Bratza and Turmen in Šilih itself).
70.
No doubt it was at least in part for that reason that the law on the
point was relatively recently clarified by the Grand Chamber in Janowiec v
Russia (2014) 58 EHRR 30, from which almost all the applicable principles
can be taken for present purposes.
72.
As the Grand Chamber put it in para 141 of Janowiec, in such a
case, there are three relevant applicable requirements:
73.
Turning to the first criterion, on the face of it at any rate, the
appellants have, at the very least, a powerful case for saying that there have
in this case been relevant “acts” and “omissions” since the “critical date”.
The clearest basis for this contention arises from the information that came to
light in the period 1969-1970, which, on any view, was after the “critical
date”. Until the sworn statement of William Cootes was published in The
People in late 1969, there was no specific evidence, at any rate in the
public domain, from anyone in the patrol that the Killings had been unlawful.
In the ensuing months further formal and informal statements to the same effect
were made by other members of the patrol.
74.
At para 144 of its judgment in Janowiec, the Grand Chamber
explained that a relevant “omission” would occur if no investigation had
occurred and:
75.
In the light of this approach, it appears to me that the appellants have
established that the first criterion identified in para 141 of Janowiec
is satisfied. The crucial components of my reasoning are that (i) prior to
1970, there had been no prior full or public investigation of the Killings,
(ii) until 1969, there had been no publicly available evidence from any member
of the patrol to suggest that the Killings had been unlawful, (iii) the
evidence which first came to light in late 1969 and early 1970 plainly
suggested that the Killings were unlawful, and (iv) that evidence appears to
have been “weighty and compelling”, although by no means conclusive in the
light of the other evidence.
76.
I turn to the second criterion identified in para 141 of Janowiec,
the “genuine connection” requirement. In that connection, the Grand Chamber
said this at para 146:
77.
It is in relation to this issue that it is necessary to look outside Janowiec
in order to resolve a centrally important dispute between the parties,
namely whether, for this purpose, the “critical date”, from which the ten years
referred to in para 146 of Janowiec runs back, is (i) the date on which
the Convention came into force in the relevant territory, or (ii) the date on which
the relevant state first recognised the right of every individual citizen to
petition the Strasbourg court in relation to alleged infringements of their
Convention rights (“the right to petition”). The appellants argue for date (i),
whereas the respondents contend that date (ii) is correct (although they did
not take this point in the courts below, where they accepted what is now the
appellants’ case on this issue).
78.
The date when the Convention came into force in the United Kingdom was 3
September 1953, although, if the appellants are right, the more relevant date
would very probably be that on which the UK extended the application of the
Convention to the Federation of Malaya, 23 October 1953. It does not matter
which is correct for present purposes, as the Killings took place less than ten
years before either date. On the other hand, if the “critical date” is that on
which the United Kingdom first recognised the right to petition, it would be 14
January 1966, as that was the date on which the UK accorded the right to its
citizens to petition the Strasbourg court “in relation to any act or decision
occurring or any facts or events arising subsequently to the 13 January 1966”.
If that is the correct date, then the appellants must fail as the Killings occurred
considerably more than ten years before that date.
79.
At first sight, this point may appear to have been disposed of by the
Grand Chamber in Janowiec, given the definition of “critical date” at
para 128 as “the date of the entry into force of the Convention with respect to
that Party”. However, that statement was made in a case where the “Party”, ie
the state concerned, Russia, had accorded the right to petition on the same
date as it acceded to the Convention. It is therefore plainly not dispositive
of the issue. In my view, the position is made clear in two Grand Chamber
judgments in 2009.
81.
It is very hard to accept the appellants’ submission that the reference
in that passage to the date of the right to petition was an oversight or
mistake. This passage is also said by the appellants to be inconsistent with
what the Grand Chamber had said in para 70 of Blečić. I do not
agree. First, that paragraph was well in the court’s mind in Šilih, as
it was specifically cited to support what was said in para 140. Secondly, para
70 of Blečić is expressed in the negative: it merely says that
a contracting party cannot be liable in respect of “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”. That is not the same thing
as saying that a contracting party is always liable in respect of any act or
fact which took place, or any situation which only ceased to exist, after that
date. Further, if the Grand Chamber in the subsequent decision in Janowiec had
considered that what was said in para 140 of Šilih was wrong, it would
surely have said so.
82.
In addition, there is Varnava v Turkey (Application Nos
16064-16066/90 and 16068-16073/90), (unreported) given 18 September 2009, which
was concerned with Turkey’s alleged failure to investigate the disappearance of
individuals in Northern Cyprus in 1974. Turkey had ratified the Convention in
1954, but had only recognised the right of petition in 1987. The Grand Chamber
at para 133 said that “the court is not competent to examine any complaints by
these applicants against Turkey so far as the alleged violations are based on
facts having occurred before … January 1987”. Two points can be made, about
that decision. First, the claims nonetheless succeeded, as the court held that,
unlike killings, disappearances carried with them an ongoing obligation to
investigate (see para 148, and the distinction was confirmed in Janowiec at
para 134). Secondly, there was no argument in Varnava based on the
contention that there had been any relevant “acts or omissions” on the part of
Turkey since 1974. However, it does not appear to me that either of those
points detract from the point that the reasoning of the Grand Chamber in Varnava
is difficult to reconcile with the appellants’ case on the “critical date”
issue.
83.
In addition to these two Grand Chamber judgments, there are the
admissibility decisions of the First Section of the Court in Çakir v Cyprus (Application No 7864/06),
(unreported) given 29 April 2010 and of the Third Section in Dorado v Spain (Application
No 30141/09), (unreported) given 27 March 2010, and the judgment of the First
Section in Jelić v Croatia (Application No 57856/11) (unreported)
given 12 June 2014.
84.
Like Varnava, Çakir was
concerned with events in Cyprus in 1974, but, unlike Varnava and like
this case, it involved allegations of failure to investigate allegedly unlawful
killings rather than disappearances. At p 5, the court repeated the Grand
Chamber’s formulation of the relevant law in para 140 of Šilih and
para130 of Varnava, and then pointed out that the killings in question
occurred more than 14 years before Cyprus accorded the right to petition – on 1
January 1989. It is fair to say that the decision that the claim in that case
was inadmissible was not specifically based on the point that the killings
occurred more than ten years before the date on which the right to petition was
granted by Cyprus. However, the essential point is that the court relied on
more than one occasion on the proposition that the critical date was that date,
rather than the date on which Cyprus acceded to the Convention (see at pp 6, 7
and 8).
85.
In Dorado at para 32, the court stated that “the provisions of
the Convention do not bind a contracting party in relation to any act or
omission which took place … before the date of the entry into force of the
Convention in respect of that party”. That is, strictly speaking, neutral, as
it is not inconsistent with the respondents’ case here. In any event, the
application was inadmissible on any view.
86.
In Jelić, the court discussed Varnava, Šilih and
Janowiec, and, at para 55, acknowledged that “in Šilih, the
proximity in time of the death of the applicant’s son to the acceptance by
Slovenia of the right of individual petition … established the temporal
competence of the court in respect of the procedural obligation under article 2
of the Convention”.
87.
Quite apart from Strasbourg jurisprudence, I consider that the
respondents’ contention as to the “critical date” accords better with
principle. The “rule” that one cannot, at least normally, go back more than ten
years relates to the jurisdiction of the Strasbourg court, as is clear from the
way in which the court expressed itself in para 144 in Janowiec. One
would therefore expect it to be linked to the date on which the court’s
jurisdiction could be expected to be invoked. Further, the rule is to a
substantial extent based on practicalities, and it would therefore be rather
odd if its applicability was related to the date on which the Convention first
applied rather than the date on which it could first be invoked. Finally, given
that time starts to run under article 35 of the Convention against a citizen’s
right to complain to the Strasbourg court from the date on which the right
arose (as to which see the next section but one of this judgment), it would
seem consistent if the ten-year rule applied in the same way.
88.
In these circumstances, I conclude that, subject to the third criterion
identified in para 141 of Janowiec, involving “Convention values”, the
present claim does not meet the “genuine connection” requirement in the second
criterion. The third criterion was considered by the Grand Chamber in paras 149-151
of Janowiec, and, while it was accepted that it applied where “the
triggering event was of a larger dimension than an ordinary criminal offence”,
the court concluded that “a Contracting Party cannot be held responsible under
the Convention for not investigating even the most serious crimes under
international law if they predated the Convention”. Accordingly, the third
criterion cannot assist the appellants.
89.
It therefore follows that, in so far as the appellants’ claim is based
on article 2, it fails because the Strasbourg court would rule it inadmissible
as the Killings occurred more than ten years before UK citizens had the right
to petition the Strasbourg court.
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.
91.
Although I have concluded that the claim under article 2 should fail for
the reason summarised in para 89 above, it is worth examining, albeit not with
a detailed exegesis, the other two grounds raised against the appellants’
article 2 case by the respondents.
92.
The respondents contend that, even if (contrary to the conclusion which
I have reached) the Strasbourg court would have held that the appellants would
have had a valid claim for an inquiry into the Killings under article 2, their
claim under that head should be dismissed because a UK court would have no
jurisdiction to entertain it. This contention is based on the proposition that
the jurisdiction of a UK court to entertain the claim arises not (at least
directly) from the Convention, but from the 1998 Act, and, as that Act only
took effect on 2 October 2000, it cannot be invoked in order to give the court
jurisdiction in respect of an event which occurred before that date.
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.)
96.
Lord Hope (who at para 73 was similarly unhappy about the lack of
clarity of the guidance in Šilih) took a different view, and at para 75
said that he saw “no reason to disagree” with the views expressed in McKerr.
He explained in the following paragraphs that it was only because there had
been a decision to have an inquest in that case that the requirements of
article 2 could be invoked. Lord Rodger of Earlsferry, who dissented, certainly
favoured following McKerr. Given that the issue did not need to be
determined, neither Baroness Hale nor Lord Brown addressed the question whether
the reasoning in McKerr remained good law, although they proceeded on
the assumption that it did.
97.
In the light of this rather unsatisfactory state of affairs, there would
be much to be said for our deciding the issue of whether McKerr remains
good law on this point. However, given that it is unnecessary to resolve that
issue in order to determine this appeal, we ought not to decide it unless we
have reached a clear and unanimous position on it. We have not. On the one
hand, the respondents’ case is supported by the unanimous decision of a
five-judge court in McKerr, whose ratio is clear and simple to apply,
but it could lead to undesirable conflicts between domestic and Strasbourg
jurisprudence. On the other hand, the appellants’ case derives
significant support from two, and arguably three, of the judgments in the
subsequent seven-judge court in McCaughey, and, while it involves
applying Strasbourg jurisprudence which has been criticised for lack of
clarity, it would ensure that domestic and Strasbourg jurisprudence march
together.
98.
Accordingly, I would leave open the question whether, if the Strasbourg
court would have held that the appellants were entitled to seek an
investigation into the Killings under article 2, a UK court would have been
bound to order an inquiry pursuant to the 1998 Act.
99.
The respondents’ case that the appellants’ article 2 claims are in any event
brought too late rests on article 35 of the Convention and section 7(5) of the
1998 Act. Under article 35, the Strasbourg court only has jurisdiction in a
case where an application is brought after “all domestic remedies have been
exhausted … and within a period of six months from the date on which a final
decision was taken”. Under section 7(5), a complaint of infringement under the
1998 Act must normally be brought within “one year beginning with the date on
which the act complained of took place”. For present purposes, it does not
matter which of these time limits apply – or whether both of them do. However,
I am inclined to think that only section 7(5) applies, as it is solely the
jurisdiction of the domestic court which the appellants are seeking to invoke,
even though their case inevitably relies heavily on Strasbourg jurisprudence.
100.
The appellants contend that time only started to run with the decision
of 29 November 2010 to refuse an inquiry, and if that is right, the instant
application would plainly have been in time. The respondents primarily contend
that time started to run in 1970, when the vital fact that a number of the
soldiers in the patrol stated that the Killings were unlawful first became
publicly known, and it was decided not to hold an inquiry. Alternatively, the
respondents say that time started to run by 1997 when it became clear that, despite
the renewed publicity in the television film shown in 1992 and the presentation
of a petition for an inquiry in 1993, there would be no inquiry.
101.
In Varnava at para 162, the Grand Chamber said that, in a case of
a suspicious death, “[t]he lack of progress or ineffectiveness of an
investigation will generally be more readily apparent”, and, [a]ccordingly, the
requirements of expedition may require an applicant to bring such a case before
Strasbourg within a matter of months, or at most, depending on the
circumstances, a very few years after events”. At para 158, the Grand Chamber
also made the point that “where a death has occurred, applicant relatives are
expected to take steps to keep track of the investigation’s progress, or lack
thereof, and to lodge their applications with due expedition once they are, or
should have become, aware of the lack of any effective criminal investigation”.
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”.
105.
The respondents realistically accept that the new evidence which came to
light in 1969 and 1970 was of such significance that it revived such article 2
right to an investigation into the Killings as the appellants may have had. As
already explained, that evidence for the first time involved clear and public
statements from soldiers involved with the Killings which cast serious doubt on
the correctness of the consistent public position of the UK government that the
Killings had been lawful. The new evidence was a classic example of the type of
new information which the courts in Brecknell and Hackett would
have had in mind as justifying an investigation if none had been held before,
or even, perhaps, if one had been held before.
106.
However, the same cannot be said about the evidence or information which
came out subsequent to 1970, particularly when one bears in mind that the
matter must primarily be assessed by reference to the evidence available to the
applicant concerned. The only arguably significant new evidence which was
available to the appellants after 1970 was (i) in the contents of the 1992
television programme In Cold Blood and (ii) in the 2009 book, Slaughter
and Deception at Batang Kali and (iii) the contents of some further
statements.
107.
Both the programme and the book gave the Killings some publicity and no
doubt caused many people to undergo feelings of outrage and concern. However,
although they each contained some new evidence in the form of, or as a result
of, interviews with relatives of the victims of the Killings, neither the
television programme nor the book contained much new revelatory evidence over
and above that which had been available in 1970. The same thing may be said of
any statements which were taken after 1970. In other words, any item of
evidence which could be said to have been new after 1970 did not really add
anything to the basic point, which had become quite apparent in 1970, namely
that there were considerable reasons for doubting whether the official UK
government line on the Killings was correct, and that there were strong grounds
which suggested that the Killings were unlawful. As for any further
investigations carried out in the three or four years following the
broadcasting of the television programme, the same may be said about them: they
did not take matters further in terms of revelatory information. Similarly, the
investigations in 2008/2009 involved little more than reviewing information
which had long been available.
108.
In these circumstances, although it may seem somewhat harsh on the facts
of this case, I am of the view that, if the appellants’ case, in so far as it
is properly based on article 2, were held to have been brought within time, it
would make the strict time limits in section 7(5) and in article 35 something
of a paper tiger in many cases where there is a claim that a death should be
investigated.
109.
I would therefore hold that even if, contrary to my view, the
appellants’ case would otherwise be made out under article 2, it would still
have to be rejected on the ground that it has been brought too late.
110.
It is right to add that a further argument which was touched on in oral
submissions, but not developed in much detail, is that, as the purpose of the
proposed inquiry is, at least in the main, to establish historical truth, the
appellants cannot rely on article 2. In Janowiec at para 143, the Grand
Chamber observed that the obligation to conduct investigations under articles 2
and 3 is in connection with “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”, not
“other types of inquiries that may be carried out for other purposes, such as
establishing a historical truth”. There is obvious force in the point that an inquiry
after 2010 into events in 1948 must at least to a substantial extent be to
establish the truth, and it is unlikely that any “criminal, civil,
administrative or disciplinary proceedings” would result even if it was
concluded that the Killings amounted to a war crime. However, as the point was
not debated very much, and as it is unnecessary to rule on it, I shall say no
more about it (although a similar point arises in connection with the common
law claim – see para 132 below).
111.
The second basis for the appellants’ claim for an inquiry into the
Killings is embodied in the argument that customary international law requires
the UK government to investigate the Killings, particularly in the light of the
evidence now available to support the notion that they were unlawful and may
have amounted to a war crime, and that the common law would recognise, and give
effect to, this aspect of international law.
112.
I would reject that contention for two reasons. First, the cases and
textbooks to which we have been taken do not establish that, by 1948, when the
Killings occurred, international law had developed to the extent of requiring a
formal public investigation into a suspicious death, even if there were strong
reasons for believing that they constituted a war crime. Secondly, and quite
apart from that, even if international law required such an investigation, the
requirement cannot be implied into the common law.
113.
So far as my first reason is concerned, it appears to be common ground
that it is only within the past 25 years that international law recognised a
duty on states to carry out formal investigations into at least some deaths for
which they were responsible and which may well have been unlawful. Thus, the
earliest document to which the appellants have made reference in this
connection is in UN General Assembly Resolution 60/147 of 16 December 2005 on The
Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law. Article 3(b) provides that “[t]he
obligation to ensure respect for and implement international human rights law
and international humanitarian law as provided for under the respective bodies
of law, includes, inter alia, the duty to … [i]nvestigate violations
effectively, promptly, thoroughly and impartially and, where appropriate, take
action against those allegedly responsible in accordance with domestic and
international law”.
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.
116.
The appellants’ argument thus involves a fresh duty being imposed on a
state, sometime between 1990 and 2005 by customary international law, to
investigate any war crime, indeed any suspicious death, which amounts to a
violation of human rights law or of humanitarian law, which may have occurred
within its jurisdiction in the past. I regard it as unlikely that such a duty
has been imposed by customary international law, but, even if it has been, it
must be subject to a cut-off date. Otherwise, the duty would extend to deaths
which occurred literally centuries ago. In the unlikely event that a fresh
retrospective duty was imposed sometime after 1995, it seems to me that the
furthest that such a duty could go would be ten years back – which would be an
unprincipled but arguably practical solution, which has the merit of having
been adopted by the Strasbourg court, as already explained. On any view, I
regard it as inconceivable that any such duty could be treated as retrospective
to events which occurred more than 40 years earlier, or could be revived by
reference to events which took place more than 20 years before that.
117.
Even if this conclusion turned out to be wrong, and it is now a
principle of customary international law that a state must investigate deaths
such as the Killings, even though they occurred as long ago as 1948, it would
not be right to incorporate that principle into the common law. Parliament has
expressly provided for investigations into deaths (i) through the coroners’
courts in the Coroners and Justices Act 2009, and its predecessors, and (ii)
through inquiries in the 2005 Act, and its subject-specific predecessor
statutes. It has also effectively legislated in relation to investigations into
suspicious deaths through the incorporation of article 2 in the 1998 Act. In
those circumstances, it appears to be quite inappropriate for the courts to
take it onto themselves, through the guise of developing the common law, to
impose a further duty to hold an inquiry, particularly when it would be a duty
which has such potentially wide and uncertain ramifications, given that it
would appear to apply to deaths which had occurred many decades – even possibly
centuries – ago.
118.
This conclusion receives strong support from four of the five opinions
given in McKerr, whose authority on this point has in no way been
diminished by any of the judgments in McCaughey. At para 30, Lord
Nicholls, with whom Lord Rodger agreed, said that he had “grave reservations
about the appropriateness of the common law now fashioning a free-standing
positive obligation of this far-reaching character”, namely “a common law
obligation to arrange for an effective investigation into [a suspicious]
death”, simply because it was required by article 2. However, he specifically
rejected the notion of such a common law obligation on the ground that it
“would create an overriding common law obligation on the state, corresponding
to article 2 … in an area of the law for which Parliament has long legislated”,
namely coroners’ inquests.
119.
At para 71, Lord Hoffmann, with whom Lord Rodger also agreed, as did
Lord Brown, rejected the notion that there was “a broad common law principle
equivalent to article 2 against which the whole of the complex set of rules
which governed the earlier investigations can be tested and by which they can
be found wanting and be ordered to be rerun under different rules”. He added
that “the very notion of such a principle, capable of overriding detailed
statutory and common law rules, is alien to the traditions of the common law”.
Lord Brown also rejected the notion that the court should “condemn as contrary
to the common law a series of procedures long since properly concluded in
accordance with well-established domestic laws and never challenged save by
reference to a substantially later European Court decision”.
120.
Lord Steyn’s position was a little different. At para 51, he referred to
the fact that it would be necessary to take into account the fact that inquests
were dealt with by statute. However, he considered that it was inappropriate
for the common law to extend the law on investigating suspicious deaths given
that “the right to life is comprehensively protected under article 2 … as
incorporated in our law by the 1998 Act”. However, he did then suggest that
“[t]he impact of evolving customary international law on our domestic legal
system is a subject of increasing importance”.
121.
However, the views of the other four Lords of Appeal were clear, and
strongly supportive of the conclusion I have reached on this issue.
122.
In these circumstances, I would reject the contention that customary
international law, through the medium of the common law, requires the UK
government to hold an inquiry into the Killings. I also agree with the more
general remarks made by Lord Mance in paras 144-151 of his judgment in
connection with the extent to which the common law incorporates principles of
customary international law. I should add that it may well be that the
appellants’ argument on this basis should also be rejected on the ground of
delay: the issue was briefly canvassed in the respondents’ written case, but it
did not feature significantly in oral argument, and it is unnecessary to rule
on it.
123.
The appellants’ final point is that, given that the respondents had a
discretion under section 1 of the 2005 Act as to whether to order an inquiry
into the Killings, the court should decide that they should have ordered an
inquiry, and they should now be directed to do so.
124.
In their first and principal decision letter, that of 29 November 2010,
the respondents explained why they had decided not to order an inquiry into the
Killings. In summary form, this letter made the following points:
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.
125.
The subsequent letter of 4 November 2011 was written following the
respondents’ consideration of further arguments from the appellants’ solicitor,
largely arguing that an inquiry was required to investigate the shortcomings of
previous investigations. The respondents considered that the inadequacies of
the previous investigations were not themselves sufficient reason to hold an
inquiry now. Apart from reiterating many of the points in the earlier letter,
the respondents pointed out that inquiring into the earlier investigations
would involve yet more expense, and added that it was doubtful whether much
light could be thrown on the earlier investigations, given how long ago they
had been undertaken.
126.
The appellants argue that, although the respondents had a discretion
under section 1 of the 2005 Act as to whether to order an inquiry in 2010/2011
into the Killings (and the subsequent events), the discretion is subject, in
principle, to challenge in court, and that, on the facts of this case, the
decision in question was wrong in law and should accordingly be quashed.
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
128.
In what was an impressive and otherwise full judgment, the Court of
Appeal gave this argument of the appellants very short shrift, saying at [2015] QB 57, para 118:
“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.”
130.
The appellants point out that there has been no quantification of the
likely cost of an inquiry, but that does not meet the point that it will clearly
cost a significant amount of money, especially bearing in mind the likelihood
of live evidence and argument, visits to Malaysia, and exhuming and examining
the bodies of the victims. Indeed, I strongly suspect that preparing a budget
for such an enterprise would be difficult and the result very unreliable. The
appellants point out in this connection that some preliminary work has been
done through previous investigations, but that appears to us to cut both ways:
it may mean that some preliminary investigations have been made, it also means
that there will be more material to process, to compare with other evidence,
and to put to witnesses. The appellants also suggest that the inquiry would
have little difficulty in reaching a conclusion that the Killings were
unlawful, but, as the Divisional Court said at para 142, it is “no longer …
permissible to conclude … on the evidence available at the present time … that
the 24 men were shot when trying to escape”. Equally, as the court immediately
went on to say, in the light of the evidence which has come to light since
1969, “[n]or can the conclusion now be reached that the 24 men were
deliberately executed. There is evidence that supports both accounts”.
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.
135.
Turning to this case, the reasons for not holding an inquiry are as set
out in the two letters, whose contents are summarised in paras 124 and 125
above. The reasons advanced on behalf of the appellants in favour of having an
inquiry are that it is appropriate to explore the evidence publicly “and seek …
to identify the truth”, and to “grant to the survivors and relatives a form of
‘closure’ to this matter that would be enormously valuable”. They suggest that
an inquiry would be the only way of testing the official version of what
happened on 11/12 December 1948, and of “address[ing] this injustice which has
endured for decades and will rightly not go away”. They further argue that an
inquiry could lead to “a correction of the official record, a public apology, a
public memorial, and active consideration of some ex gratia compensation”.
136.
It is impossible not to sympathise with these sentiments. But in my
opinion, these understandable reasons for holding an inquiry do not justify a
court concluding that the respondents’ decision to refuse an inquiry for the
reasons summarised in paras 124 and 125 above was disproportionate. 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 nor
customary international law would require such an investigation. It is also a
case where the relevant members of the executive have 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.
137.
The notion that there is a positive common law duty to investigate the
Killings in the present case, even though they took place nearly 70 years ago,
simply in order to establish historical truth would, at least without more,
open the door to demands that all suspicious deaths, however long ago, would
have to be investigated. The notion that the duty is owed to those whose
relatives were killed or may remember the incident has more force, but that is
not a powerful enough reason, in my view, to enable the court to say that,
despite the reasons advanced by the respondents for not holding an inquiry, it
was disproportionate to refuse to do so. It is not as if the appellants have
got nowhere: in these proceedings, the Divisional Court, the Court of Appeal
and now this court have all said in terms that the official UK Government case
as to the circumstances of the Killings may well not be correct and that the Killings
may well have been unlawful. And the events of 1969-1970, at least to large
extent, speak for themselves.
138.
As for the argument that an inquiry is justified because of what is
said, in effect, to be a “cover-up”, I see the force of the argument in relation
to the immediate aftermath of the Killings and the decision in 1970 not to
proceed with the investigation. However, it seems to me that the appellants’
reliance on the events of those two periods suffers from the same sorts of
problems as an inquiry into the Killings themselves. There would be obvious
difficulty, given the passage of time, at arriving at the truth - or, perhaps
more accurately, at any more of the truth than the documents already show. And
the value of any further information or analysis of the events of the aftermath
or in 1969-1970 in terms of lessons for the present day must be limited at
best. In addition, the benefits for the survivors and the relations of the
victims would be limited. So far as the events after 1990 are concerned, I am
unconvinced that there is anything to look into. The concerns about the value
of an inquiry currently raised by the respondents would have largely applied
then.
139.
It is the respondents who have the primary role of deciding under
section 1 of the 2005 Act whether to have an inquiry into the Killings, and if
not why not, and it is not for the court to substitute its view for that of the
respondents. What the court, on the instant hypothesis, must do is to decide
whether, bearing in mind the reasons for and against holding an inquiry, the
respondents’ refusal to hold an inquiry was disproportionate. In my view, it
was not.
140.
The respondents did not specifically raise the argument that the
appellants’ common law claim was in difficulty for the additional reason of
delay. It is nonetheless worth mentioning that, for the reasons discussed in
paras 105-107 above, there may well be a powerful case for saying that, if the
appellants wished the respondents to hold an inquiry into the Killings, they
could and should have requested it in 1970 or 1971. Accordingly, it may be that
the fact that the appellants can be said to have delayed for 40 years before
seeking an inquiry and have only then judicially reviewed the respondents’
refusal to hold one, is a strong factor against now granting them any relief in
that connection. However, given that the point was not developed in argument by
the respondents, it would be unfair on the appellants to rely on the point, and
I say no more about it.
142.
I have read and agree generally with the reasoning and conclusions in
the judgment given by Lord Neuberger. This judgment adds a footnote (in paras 144-151
below) to his observations in paras 112-122 on the incorporation of customary
international law into the common law, and, more substantively, addresses (in
paras 152-202 below) the issue of jurisdiction, to which Lord Neuberger refers
in para 65.
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
145.
However, as the appellants went on to recognise at least this further qualification
exists in relation to CIL, beyond that stated by Lord Denning, namely that:
“The recognition at common law
must itself not abrogate a constitutional or common law value, such as the
principle that it is Parliament alone who recognises new crimes: R v Jones
(Margaret) [2006] UKHL 16, [2007] 1 AC 136 at para 29.”
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.
146.
The position is therefore somewhat more nuanced than Lord Denning MR’s
statement might suggest. Common law judges on any view retain the power and
duty to consider how far customary international law on any point fits with
domestic constitutional principles and understandings. Thus, in a number of
other cases prior to R v Jones (Margaret), courts have rejected
suggestions that CIL had expanded the ambit of domestic criminal law: see eg R
v Keyn (1876) 2 Exch Div 63, 202, et seq and Chung Chi Cheung v The King
[1939] AC 160. Although both cases involved criminal liability, neither case
highlighted this as a critical distinction when discussing whether CIL should
be regarded as part of domestic law. Thus, in the latter case, Lord Atkin said
simply at p 168:
“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.”
148.
Several points may be made about Lord Denning’s adoption of the doctrine
of incorporation. First, it needs qualification as stated in paras 144-145
above. Second, even as regards civil aspects of CIL, Lord Wilberforce in I
Congreso del Partido [1983] 1 AC 244, 261G-262A expressly avoided
“commitment to more of the admired judgment of Lord Denning MR” than was
necessary. Similarly, in R v Jones (Margaret), at para 59, Lord Hoffmann,
with whom all other members of the House agreed, and I, at para 100, also
expressly left open the basis on which CIL is relevant under domestic law.
Third, nearly 40 years after Trendtex and in an era where precedent is
unlikely to be seen as so great an obstacle to reconsideration of domestic law
in the light of international developments, the difference in effect of the two
doctrines is unlikely to be as significant as it may have seemed in 1977. Even
in 1977 Stephenson LJ made a similar point: p 569D - although it is right to
add that he was the one member of the court who regarded the prior Court of
Appeal authority of Thai-Europe as precluding any relaxation of the
existing rules of state immunity. A similar observation to Stephenson LJ’s is
found in Nulyarimma v Thompson [1999] FCA 1192 in para 109 of the
judgment of Merkel J (whose disagreement as to whether the CIL crime of
genocide was to be regarded as a domestic crime does not affect the judgment’s
general force).
150.
Speaking generally, in my opinion, the presumption when considering any
such policy issue is that CIL, once established, can and should shape the
common law, whenever it can do so consistently with domestic constitutional principles,
statutory law and common law rules which the courts can themselves sensibly adapt
without it being, for example, necessary to invite Parliamentary intervention
or consideration.
151.
However, in the present case and for the reasons given by Lord Neuberger
in para 112, it would be inappropriate for English courts to import the
suggested CIL principle regarding the holding of an inquiry in respect of
events in 1948 into domestic law, because Parliament has effectively pre-empted
the whole area of investigations into historic deaths. Domestic courts cannot
or should not in such circumstances recognise or import a principle which would
be wider and would extend to cover events further back in time than would be
covered by the inquiries provided by such legislation and/or by the Human
Rights Convention.
152.
The issue of jurisdiction has two strands: the first, whether the United
Kingdom can be said to have been responsible for whatever happened in Batang
Kali on 11/12 December 1948; the second, whether it can be held responsible for
not holding an inquiry now. These strands are relevant under the Convention
rights, as incorporated into domestic law, to the question whether there were failures
by the United Kingdom “to secure to everyone within [its] jurisdiction”, within
the meaning of article 1 of the Convention, any of the rights and freedoms
defined in article 2 of the Convention, so as to make the United Kingdom
potentially responsible for breach of the Convention Rights as incorporated
into domestic law by the Human Rights Act 1998. But both strands are also
potentially relevant to the claims that an inquiry should now be held by
reference to international law and/or under common law principles of judicial
review.
153.
As to the first strand, the respondents’ case is that, while the Scots
Guards were on active service in Selangor, they were acting under the aegis of
the constitutional arrangements in force in the Federation of Malaya or,
alternatively, in the State of Selangor, and that any acts on their part were
always attributable either to His Majesty in right of the Federation or to The
Sultan as the Ruler of the State of Selangor, rather than to His Majesty in
right of the United Kingdom. In drawing this distinction, the respondents rely
on R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth
Affairs [2005] UKHL 57; [2006] 1 AC 529.
155.
To consider these submissions, it is necessary to analyse the
constitutional arrangements which existed in Malaya at the relevant times. At
the date of the deaths in December 1948, Selangor was a state ruled by its
Sultan whose relations with His Majesty King George VI were governed by the
Selangor Treaty of 21 January 1948. Also on 21 January 1948, it had become one
of nine Malay States which, together with two British colonies (Malacca and
Penang) constituting the Straits Settlements, were party to the Federation of
Malaya Agreement made between the Sultans of the Malay States and His Majesty.
156.
The Selangor Treaty, along with similar treaties with the Sultans of the
other eight Malay States, and the Federation of Malaya Agreement were the
subject of The Federation of Malaya Order in Council 1948 (SI 1948/108) made on
26 January 1948, laid before the United Kingdom Parliament on 27
January 1948 and coming into force on 1 February 1948. The Order scheduled the
Treaties with the Sultans of Selangor and the other Malay States and the
Federation Agreement.
158.
The Federation of Malaya Agreement recited that it had “been represented
to His Majesty that fresh arrangements should be made for the peace, order and good
government of the Malay States” in the form of the Federation, which was “to
take effect on such day as His Majesty may, by Order in Council, appoint …”.
Clause 3 established the Federation, while clause 4 provided that:
159.
Clause 7 provided for a High Commissioner in and for the Federation to
be appointed “by Commission under His Majesty’s Sign Manual and Signet”, while
clause 8 provided that:
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;” …
163.
The matters set out in the first column of the Second Schedule, in
respect of which the High Commissioner had executive authority under clauses 16
and 17 of the Federation Agreement and the Federal Legislature had power to
make laws under clause 48, included Defence and External Affairs:
15. Emergency powers, emergency
legislation; trading with the enemy; enemy property …”
164.
Under the powers contained in clause 48 read with the Schedule 2 paragraph
15, the High Commissioner and the Rulers with the advice and consent of the
Legislative Council on 7 July 1948 enacted the Emergency Regulations Ordinance,
No 10 of 1948 “to confer on the High Commissioner power to make regulations on
occasions of emergency or public danger”. The High Commissioner declared a
state of emergency on 12 July 1948, and, in pursuit of the powers contained in
the Ordinance, issued Emergency Regulations on 15 July 1948. Regulation 21
authorised any police officer of or above the rank of Sub-Inspector without
warrant and with or without assistance to enter and search any premises and to
stop and search any vessel, vehicle or individual, whether in a public place or
not. Regulation 24 authorised a police officer to arrest and detain any person
who on being questioned failed to satisfy the officer as to the purposes for
which he was where he was found and who the officer suspected had acted or was
about to act in any manner prejudicial to the public safety and the maintenance
of public order.
167.
The Order in Council went on to provide by section 4 that “In pursuance
of the Federation Agreement there shall be established a Federation ...”, by section
5 that “The provisions of the Federation Agreement shall have the force of law
throughout the territories comprised in the Federation” and by section 6 that:
168.
According to Notifications published in the Federation of Malaya
Government Gazette dated 28 November 1949, His Majesty had “for the better
co-ordination of measures for the maintenance and protection of the interests
in South-East Asia of our Government in the United Kingdom” at some point
before mid-1948 appointed a Commissioner-General “to advise Our said Government
concerning such matters in respect of Burma, Siam, French Indo-China and the
Netherlands East Indies (hereinafter referred to as ‘the Foreign Territories’)
…”, while from May 1946, Malcolm MacDonald had been Governor-General “in and
over the Malayan Union (now the Federation of Malaya), the Colony of Singapore …”.
By Commission passed under the Royal Sign Manual and Signet on 10 August 1948
His Majesty appointed Malcolm MacDonald as Commissioner-General in South-East
Asia “to discharge the functions hitherto discharged by the said
Governor-General and to extend the area of his authority to embrace the
Federation of Malaya, the Colonies of Singapore, Sarawak, North Borneo, the
Protected State of Brunei, and such other territories, being parts of Our dominions
or under Our protection, as We may direct …”, and to exercise such authority
and perform such duties as might be specified in such instructions as he might
receive “from Us under our Sign Manual and Signet or through one of Our
Principal Secretaries of State or as may be prescribed by law”.
169.
Prior to the Commission dated 10 August 1948, exchanges between the
Commissioner-General for South-East Asia and London dated 26 June and, 8 and 12
July 1948 show the Commissioner-General reporting on “the nature and dimensions
of the present internal security problem and the measures necessary to combat
it as agreed by the Defence Co-ordination Committee held on 24 June with the
Governor of Singapore and the High Commissioner of the Federation attending”.
These included references to “police action with military support”, the
military support being at that stage, it appears, two battalions of the Malay
Regiment and one squadron of the Royal Air Force Regiment (Malay). The
Commissioner’s communication dated 12 July 1948 recorded that:
170.
By telegram on 9 August 1948, the Defence Co-ordination Committee recommended
the dispatch of a brigade of the British Army to Malaya as reinforcements,
saying that:
171.
At a Cabinet meeting on 13 August 1948 it was resolved to proceed
urgently with this. The decision was taken after the Chief of Imperial General
Staff, Field-Marshal Viscount Lord Montgomery of Alamein, said that:
172.
The establishment and existence of the British army was authorised by
the Army Act, which was brought into force annually by a more specific Act and
recited at the relevant times that:
174.
The European Convention on Human Rights came into force for the United
Kingdom on 3 September 1953, and was under article 56 extended by the United
Kingdom to the Federation of Malaya on 23 October 1953.
175.
In 1957 the Federation of Malaya became an independent sovereign country
within the Commonwealth. The arrangements for this were made by the Federation
of Malaya Independence Act 1957 and the Federation of Malaya Independence Order
in Council No 1933 of 1957. The Act provided:
176.
The Order in Council gave effect as from 31 August 1957 to a new Federal
Constitution contained in the First Schedule, and revoked the Federation of
Malaya Orders in Council 1948 to 1956. Article 167(1) of the Constitution
provided:
177.
On and as from independence, the United Kingdom’s notification declaring
that the European Convention on Human Rights applied to the Federation of Malaya
as a territory for whose international relations it was responsible was
withdrawn and no longer applied.
178.
Against this background, I consider the two strands of the respondents’
submissions which I have summarised above. By the first strand, the respondents
argue that the British army was not acting in right of the United Kingdom in
relation to any of the killings. The respondents acknowledged in their skeleton
argument before the Court of Appeal that the Scots Guards were deployed to the
Far East in right of the United Kingdom, but they submitted then, and they
repeat the submission now, that what matters is the legal regime under which
the Scots Guards acted while in Malaya (para 33).
179.
This regime is, they contend, to be found in the reservation to the
Crown of “complete control” over the defence and external affairs of Selangor
as well as of the Federation, pursuant to which the Crown not only undertook to
protect Selangor and the Malay States from external hostile attacks, but
authority was also given “for this and other similar purposes” for His
Majesty’s Forces to “be allowed free access to the [Malay States] and to employ
all necessary means of opposing such attacks”. More specifically, the
activities of the Scots Guards were also authorised under Federation law by the
Emergency Regulations (paras 151-152 above). Alternatively, they contend that,
if the Scots Guards were not deployed in Selangor for such purposes, then they
were deployed for internal purposes, necessarily in aid of the Sultan, who was
obliged to follow the advice of the British resident adviser on such a matter:
see clause 4 of the Selangor Treaty of 1948 (para 157 above).
180.
The appellants endorse the respondents’ primary contention, that the
British Army forces were deployed in Malaya to protect against external hostile
attacks or “for other similar purposes” (written case, para 4.14). It also
appears to accord with the reality. The Malayan insurgency was part of an
external threat, and British forces were sent to assist in order to protect the
Federation and its component parts against that threat or for similar purposes.
181.
The parties differ however in their analysis of the constitutional
implications of this conclusion. The respondents, invoking reasoning of Lord
Bingham, Lord Hoffmann and Lord Hope in Quark, submit that there is a
distinction between Crown action taken in right of the United Kingdom and in
right of, or under the constitutional regime applicable in, Malaya or
alternatively Selangor. They argue that the Crown’s authority over defence and
external affairs was exercised or “mediated” through the High Commissioner,
exercising his powers in that regard under the Federation Agreement, and that
the Scots Guards were acting under the constitutional authority of the Executive
Government of the Federation and exercising the emergency powers provided by
the Emergency Regulations of 15 July 1948. The appellants submit that there was
no need for any such mediation. The Crown was in right of the United Kingdom
simply entitled to deploy its forces in the Federation to protect against
external hostile attacks or for “similar purposes”.
182.
Although this was not fully explored before us, both the distinction
which the respondents draw in reliance on reasoning in Quark, and its
applicability, are open to a number of questions. It can readily be accepted
that, in relation to fully self-governing countries where the Queen remains
Head of State, the Queen when acting for example on the advice of her local
ministers acts in right of her position as Head of State of the relevant
country, not as Head of State in the United Kingdom. But (despite the width of
the recitals in the Order in Council dated 26 January 1948) the King was not
the Head of State of either Selangor or the Malayan Federation. Hence, no
doubt, the respondents’ argument that the Crown’s intervention was mediated
through the High Commissioner as executive authority of the Federation or was
undertaken on behalf of the Sultan of Selangor. But even in situations where
the Crown is the Head of State the distinction drawn in Quark calls for
further consideration.
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.
184.
Lord Nicholls and Baroness Hale did not endorse this reasoning, and they
and Lord Hoffmann and Lord Hope all concurred in a second reason, which was
that both in Strasbourg and under the Human Rights Act the absence of any
notification extending A1P1 to SGSSI under article 56 meant that the claim
could not involve any failure by the United Kingdom “to secure to everyone
within [its] jurisdiction” any Convention right within the meaning of article 1
of the Convention. The fact that United Kingdom ministers had in reality
control over the grant or refusal of fishing licences in SGSSI was, in the
absence of any such notification, not capable of bringing the claim within
article 1. It was this alternative line of reasoning which, when Quark took
their complaint to the European Court of Human Rights, led that court
unanimously to declare the application inadmissible: see Quark Fishing Ltd v
United Kingdom (Application No 15305/06) (unreported) given 19 September
2006.
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.
187.
Lord Hoffmann’s revised views about the Crown’s position when exercising
powers on the advice of United Kingdom ministers in relation to dependent
territories and his views about the potentially “amphibious nature” of an order
in council relating to such a nature reinforce my conclusion that there is no
reason to attempt to justify the Crown’s military involvement in the Federation
of Malaya in 1948 solely in terms of the Federation’s Constitution. The case
for not doing so in the present context is in fact a fortiori to that which, in
the light of Professor Finnis’s paper and Lord Hoffmann’s revised view, existed
in relation to SGSSI and BIOT. The Crown was, as I have pointed out, sovereign
in SGSSI and BIOT. The Crown was not sovereign in the Federation of Malaya or
in any of the nine Malay States including Selangor. It had powers in respect of
external affairs, defence and the deployment of the British army which were
granted it under Treaty with each Malay State and were reflected in the
Federation Agreement. Those powers must have been given to the King wearing the
Crown of, and in the interests of, the United Kingdom. There is no reason not
to treat them as having simply been exercised in that capacity and for that
purpose, on the advice of United Kingdom ministers. All the indications are that
this is the basis on which they were exercised.
188.
While on active service in Malaya, the Scots Guards remained His
Majesty’s forces and under the command of the Crown exercised through the Army
Council in accordance with the King’s Regulations: see para 164 above. There
was no question of their secondment to any other authority. Neither the
Commissioner-General in South-East Asia nor the High Commissioner for the
Federation appears actually to have had any right of command over them. The
fact that their members may not have served under any contract of service is irrelevant
to the present issue whether the appellants’ complaints relating to their
alleged activities in Selangor involve alleged failure by the United Kingdom
“to secure to everyone within [its] jurisdiction” the rights and freedoms in
article 2 of the Convention.
189.
By 1953 the Convention was in force and had been extended by
notification under article 56 to the Malayan Federation. Once the Convention
came into force and was so extended, the second strand of reasoning in Quark,
based on the absence of any such notification, can no longer directly apply.
The fact of notification, coupled with the United Kingdom’s control over its
armed forces on active service in Selangor, mean that the deaths in December
1948 occurred in circumstances within the United Kingdom’s jurisdiction, within
the meaning involved in article 1 of the Convention, if and to the extent that
that article applies. Those who died were at the time within the British Army’s
control, and this would continue to be so, even if they were fired upon as they
were seeking to escape.
190.
Under the Convention, the question next arising is one of timing: can
the United Kingdom be regarded as responsible for failure to hold an inquiry
into deaths which occurred in December 1948 before the Convention was in force
at all, let alone extended to the Federation? I have concluded that the deaths
in December 1948 would have occurred within the United Kingdom’s jurisdiction
within the meaning of article 1, had the Convention been in force in Malaya in
1948. On that basis, and because the gap in time between the deaths and the
extension to the Malayan Federation of the Convention, was less than ten years,
a sufficient temporal link exists between the deaths and the critical date to
satisfy the test laid down in the Strasbourg case law, particularly Janowiec
v Russia (2014) 58 EHRR 30. Under international law, there would arise a
parallel, though relatively unexplored, issue of timing, which Lord Neuberger
mentions in para 117 but which it is unnecessary to resolve on this appeal. As
a matter of purely common law judicial review, the length of time since the
deaths is a relevant discretionary factor.
192.
Perhaps unsurprisingly, we were shown little material to guide us on the
resolution of this strand of the overall issue. But I am not persuaded by the
respondents’ submission that the grant of full independence in 1957 relieved
the United Kingdom of any potential obligation, otherwise arising towards
alleged victims of alleged pre-1957 misconduct by the United Kingdom army, to
hold an inquiry into such misconduct. A first question is whether any potential
liability or obligation to hold an inquiry into the deaths in December 1948 can
be said to be “in respect of the government of the Federation” at all. I have
considerable doubt whether it can be. Once it is concluded that the British
army was in Malaya in the service of His Majesty and in the interests of the
United Kingdom, I have difficulty in regarding it as acting “in respect of the
government of the Federation”, even though it was there to protect Selangor and
the Malay States from external hostile attacks or for similar purposes: see
paras 170-171 and 178 above. However, I need not rest my conclusions on this
sole basis.
193.
Assuming that the conduct of the British army in Malaya was “in respect
of the government of the Federation”, and any potential duty to hold an inquiry
into such conduct likewise, the question is whether and how the constitutional
arrangements made between the Federation and the United Kingdom on the
Federation’s independence can affect any domestic law duty which the United
Kingdom would otherwise have towards victims to hold an inquiry into or, in
appropriate circumstances, to pay compensation in respect of prior misconduct
by the British army.
194.
I do not see how they could, even if the deaths can be regarded as
occurring during the course of governmental activities which were in 1948 the
responsibility of the United Kingdom but were transferred in 1957 to the
Malayan Federation. State succession is an area of international law which is
neither easy nor well covered by authority. Brownlie’s Principles of
Public International Law 8th ed (2012), p 442 summarises the position as
follows:
195.
The principle stated in the first sentence is illustrated in domestic
law by West Rand Central Gold Mining Co v The King [1905] 2 KB 391, in
which the King’s Bench Divisional Court held that there was no principle of
international law by which, after annexation or conquest, a conquering state
could become liable, absent express contrary stipulation, to discharge the
financial liabilities of the conquered state incurred before the outbreak of
war.
196.
The principle of acceptance or adoption, referred to in the last two
sentences of the passage in Brownlie, also appears in Mwandingi v
Ministry of Defence, Namibia [1991] 1 SA 851 (Nm). The High Court of
Namibia there held the Ministry of Defence of Namibia liable for the alleged
wrongful shooting of the claimant by the South African Defence Force prior to
Namibian independence. It based its decision on article 140 of the Constitution
of Namibia, providing that everything done by the government of South Africa should
be deemed to have been done by the government of Namibia.
197.
If the conduct of the British army in December 1948 can be regarded as
being “in respect of the government of the Federation”, it might be said to
have been adopted by the Federation by article 167(1) of the 1957 Constitution.
But I do not see how or why adoption by the Federation as a successor state
should at the same time release the United Kingdom in domestic, or even
international, law vis-à-vis the victims of such conduct. Apart from adoption,
the general rule which appears is that state liability for a death remains with
the state responsible for the deaths, so long as that state exists, and does
not pass to a successor state which takes over the relevant territory or
activities. Different arrangements made as between the United Kingdom and the
Federation should not on any view affect the rights which victims otherwise
have against the United Kingdom domestically, whether such domestic rights
arise by reference to the Convention rights, international law or pure common
law principles.
198.
Assuming that the deaths in December 1948 were and remain the United
Kingdom’s responsibility domestically, responsibility for any inquiry now
called for into them must prima facie also remain with the United Kingdom. It
is true that the inquiry is claimed by persons who are now clearly not within
the United Kingdom’s control, in relation to an incident in a place which is
now equally clearly outside the United Kingdom’s jurisdiction; and, further,
that much of the evidence and material which could or would be relevant is and
is only in Malaysia, which is outside the jurisdiction. But any inquiry would
relate to the deaths of persons who were at the time under United Kingdom
control, and to the conduct of the British army which was and is within United
Kingdom jurisdiction. More specifically it would relate to the conduct of Scots
Guards who were under United Kingdom command and within United Kingdom
jurisdiction (and one or two of whom are still alive and understood to be
within such jurisdiction). When a death of a person under British military
control occurs abroad, any subsequent inquiry will often involve seeking
information from sources in different jurisdictions at the date of the inquiry.
199.
So far as concerns the Convention, any duty on the part of the United
Kingdom under article 2 to hold an inquiry in accordance with the principles in
Janowiec is an independent duty. This is so although it requires a
triggering event, such as a death occurring at a time when the individual
complainants could rely on the Convention or within a short period (with a
maximum of ten years) prior to whenever that became possible. In either case,
the duty to hold an inquiry may arise from or, in the language of Janowiec,
be “revived” by the discovery of relevant new matter, whereupon a claim to an
inquiry may be pursued, within the appropriate time limit for making such a
claim after the duty has arisen or revived.
200.
For there to be a Convention duty to hold an inquiry, this must be
necessary “to secure to [some]one within [the United Kingdom’s] jurisdiction”
the rights and freedoms defined in article 2. But this cannot and does not mean
that the beneficiaries of the inquiry must be within the jurisdiction when the
inquiry is sought. The focus must be on whether the inquiry relates to an
incident involving someone within the United Kingdom’s jurisdiction. In the
light of my conclusions on the first strand of the overall issue of
jurisdiction, that was and is here the case.
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.
203.
The response that the law ought to make to a claim that an historical
wrong should be legally recognised and redressed involves a recurring and
multi-faceted challenge. That challenge can arise in a myriad of contexts – the
prosecution of sexual offences perpetrated years or even decades before
proceedings come to court; the quashing of convictions long after they were
first made against a person whose innocence is established by subsequently
obtained evidence; and the holding of an inquest into someone’s death years
after it occurred, when new evidence touching on the death has come to light.
These are but a few examples of cases where the law has had to confront the
need to revisit disputes which had been considered settled or which were said
to have occurred too long ago to countenance their revival.
204.
This appeal involves precisely such a challenge. The shocking
circumstances in which, according to the overwhelming preponderance of
currently available evidence, wholly innocent men were mercilessly murdered and
the failure of the authorities of this state to conduct an effective inquiry
into their deaths have been comprehensively reviewed by Lord Neuberger in his
judgment and require no further emphasis or repetition. It is necessary to keep
those circumstances and that history firmly in mind, however, in deciding how
our system of law should react to the demand of the relatives of those killed
that the injustice that has been perpetrated should be acknowledged and
accepted.
205.
Three possible gateways to the vindication of the appellants’ claim have
been dealt with by Lord Neuberger: via article 2 of the European Convention on
Human Rights and Fundamental Freedoms (ECHR); under customary international
law, as incorporated into the common law; and by the invocation of the
principle of proportionality as a basis for judicial review in the municipal
law of this country.
206.
It would be a mistake, I believe, to view the applicability of article 2
solely in terms of whether it has retrospective effect. This provision carries
with it a duty, complementary to the obligation to protect life, of
investigating any death occurring in suspicious circumstances. That duty does
not arise as a matter of retroactive obligation. If article 2 applies, the
obligation to investigate the death is a current imperative.
207.
As Lord Neuberger has observed (para 66) the respondents accept that, if
article 2 applies to these deaths, there is an existing obligation to carry out
an inquiry that meets its requirements. That duty has been variously described
as “separate”, “autonomous” or “detachable” from the primary obligation under
article 2. It has an existence which is distinct from that primary obligation.
The assertion that an article 2 inquiry is not required does not rest,
therefore, on the claim that no contemporary duty exists but on the essentially
pragmatic basis that, for procedural reasons, it is not appropriate that an
inquiry be held. This is important. In principle an inquiry into the deaths
that is compliant with article 2 should be held. But it is claimed that that prima
facie position should give way because a bright line rule is required to
restrict the backward reach of article 2. The foundation of that claim is, as I
have said, pragmatic rather than principled. That consideration should form the
background to an examination of the Strasbourg jurisprudence in this area.
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.
210.
Although the respondent adumbrated four possible dates that might
qualify as the “critical date” – (i) the date of signing the Treaty
establishing ECHR, (1950); (ii) the date of ratification, (1951); (iii) the
date of entry into force in the United Kingdom of the Convention, (1953); and
(iv) the date on which individual petition was granted, (1966), on the hearing
of the appeal, the dispute concerning the critical date issue centred on two
possibilities. The first of these was the date on which the Convention came
into force in the United Kingdom, 3 September 1953, (or when it was extended to
the Confederation of Malaya, 23 October 1953). The second possibility was the
date on which the United Kingdom gave its citizens the right of personal
petition to the Strasbourg court – 14 January 1966. Lord Neuberger has decided
that the case law of the ECtHR favours the latter date and I can understand how
that view can be reached in light of some of the statements made by the ECtHR.
There are some contrary indications to be found in other statements and, in the
light of these, I have concluded that Strasbourg case law does not point
indisputably in the direction of the date of personal petition being the
critical date. There is reference in the Strasbourg jurisprudence which can be
interpreted as supporting the view that the date on which the United Kingdom
became bound by the Convention (1953) should be regarded as the critical date.
211.
What does the coming into force of treaty obligations such as those
contained in ECHR entail? In the case of the United Kingdom it must surely
involve this country’s acceptance that it is bound by and agrees to abide by
the terms of the Convention. The date on which the Convention came into force
in the United Kingdom must be the date when this country formally accepted that
it was bound to comply with the rights enshrined in ECHR including those
contained in article 2. Now that it is recognised that that duty comprehends a
freestanding obligation to conduct an inquiry into suspicious deaths, in 1953,
on the coming into force of the Convention, the United Kingdom was, as a matter
of international law, bound to conduct an inquiry into the deaths involved in
these appeals. Can it be said, in those circumstances, that the critical date
did not arrive for another 12 years?
212.
In my view, there is no clear and constant line of jurisprudence
emerging from the Strasbourg court that would support the notion that, although
the United Kingdom had, from 1953, an international obligation to conduct an
article 2 inquiry into these deaths, the Strasbourg court’s temporal
jurisdiction did not come into existence until 1966. Before the Court of Appeal
the respondents did not argue that the critical date was 1966. On the contrary,
at para 13 of the skeleton argument submitted by the respondents for the Court
of Appeal hearing it is stated, “… the critical date … would be in a Strasbourg
case … the date on which the United Kingdom ratified the ECHR.”
213.
That the respondents did not espouse 1966 as the critical date is not
surprising in light of the Strasbourg jurisprudence and, incidentally, observations
made by this court In re McCaughey [2011] UKSC 20; [2012] 1 AC 725 - see
paras 62, 78, 101, 112.
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)
216.
Lord Neuberger has relied on the statement in para 140 of the Grand
Chamber’s judgment in Šilih in support of his conclusion that the
critical date is the grant of the right of individual petition (paras 80 and 81
above). Two observations may be made about this. Firstly, the Grand Chamber in
para 140 canvassed two possible candidates for the critical date – the coming
into force of the Convention or the entry into force of Protocol No 11, whereby
the right of individual petition was recognised. The Grand Chamber did not
say that the critical date was necessarily the later of these possibilities.
Often, as in the case of Slovenia, these dates coincide. It is, to my mind,
therefore, by no means clear that the Grand Chamber in para 140 purported to
lay down a general rule that if the grant of the right of individual petition
post-dated the coming into force of the Convention, it was the later event that
must be regarded as marking the critical date. The Grand Chamber had no need to
address that issue since the two events (the coming into force of the
Convention and the grant of a right to individual petition) occurred at the
same time.
217.
Secondly, later statements in Šilih are consistent with the view
that the critical date is in fact the date of entry into force of the
Convention rather than the date of the grant of the right of individual petition.
Thus in para 165, the Grand Chamber said, “… the court notes that the death of
the applicants’ son occurred only a little more than a year before the entry
into force of the Convention in respect of Slovenia …” and in para 166,
“The court notes and the government did not dispute that the applicants’
procedural complaint essentially related to … judicial proceedings which were
conducted after the entry into force of the Convention …” (emphasis
added in both instances).
218.
I accept that the Grand Chamber’s decision in Varnava v Turkey
(Application Nos 16064-16066/90 and 16068-16073/90) (unreported) given 18
September 2009, represents a rather more forthright endorsement of the grant of
the right of individual petition as the critical date. In paras 132-134 the
court said:
219.
The Grand Chamber’s statement that the court's jurisdiction became
obligatory and ran from the acceptance by a Contracting State of the right of
individual petition is not supported by any analysis. And, as Lord Neuberger
has acknowledged, that statement is incidental to the decision in the case
because the court found that the nature of the procedural obligation to investigate
disappearances was such that, potentially, it persisted as long as the fate of
the person who had disappeared was unaccounted for; the ongoing failure to
provide the requisite investigation was therefore regarded as a continuing
violation.
220.
Interestingly, an argument deployed by the government of Cyprus (an
intervener in Varnava) which was recorded at para 128 of the judgment
does not appear to have been dealt with by the Grand Chamber. It was to the
effect that the applications could not be said to concern Turkey’s
responsibility for acts or omissions at a time when it had not accepted the
Convention. The disappearances had occurred in 1974 and from 1954 onwards
Turkey could have been subject to proceedings begun by other contracting
parties. If this argument is right (and I cannot see any reason that it is not)
it illustrates the true nature of the “correct date” concept. It should be seen
as a gateway that is concerned principally with the backward reach of article
2, not simply with the enforceability of an individual right under that
provision. On one view, it would be anomalous that a country’s failure to
conduct an article 2 inquiry would come within the Strasbourg court’s temporal
jurisdiction at the suit of another member state but that it should not be
amenable to that jurisdiction on an application by the next-of-kin of the
person whose death was the subject of the application. As against that,
however, it might be thought to be incongruous that ECtHR should be able to
assume jurisdiction to adjudicate in a dispute between citizen and state before
the right of individual petition had even been conferred.
221.
An example of the choice of the entry into force alternative can be
found, however, in the case of Dorado v Spain (Application No 30141/09)
(unreported) given 27 March 2012. The Convention entered into force in Spain on
4 October 1979. The right of individual petition became applicable to that
country on 1 July 1981. Notwithstanding this, the Third Section of the ECtHR in
held that the critical date was the entry into force of the Convention. At para
32 the court said:
222.
Significantly, the court included Varnava among the decisions
which, it suggested, supported the proposition that the Convention was binding
at the date of its entry into force in the relevant member state. And, lest it
be thought that the failure to identify the time of the grant of the right to
individual petition as the critical date was inadvertent, it should be noted
that the two dates (coming into force and right of individual petition) were
expressly referred to in paras 34 and 39 of the judgment.
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.
225.
The point has been made that if the Grand Chamber in the subsequent
decision in Janowiec had considered that what was said in para 140 of Šilih
was wrong, it would surely have said so. This, of course, depends on one’s view
of the import of that paragraph. For the reasons given at paras 206 and 207
above, I do not accept that the court in Šilih decided that the date of
the grant of the right to an individual petition was the critical date. There
was no need, therefore, for the court in Janowiec to make any adverse
observation on para 140 of Šilih.
226.
In Çakir and others v Cyprus (Application No 7864/06),
(unreported) given 29 April 2010, an admissibility decision, the court referred
on a number of occasions to the date on which Cyprus accorded the right of
individual petition as the critical date. Lord Neuberger regarded this as
highly significant, pointing out in para 84 of his judgment that this was the
date that had been chosen by the court rather than the date on which Cyprus had
acceded to the Convention. In the section of the judgment entitled “The Law”,
however, the court said:
227.
Again, therefore, the decision in Çakir does not unmistakably
endorse the time of the grant of personal petition as the only possible
critical date. In my view, the least that can be said of the relevant ECtHR
case law is that it certainly does not provide unequivocal support for the view
that the critical date is in every instance the date on which the right to
present an individual petition to the Strasbourg court has been granted by a
member state.
228.
What then should this court’s conclusion on the critical date be? Two
interrelated issues must be addressed in order to answer this question. The
first concerns the significance which should attach to the absence of clear
guidance from Strasbourg on whether the critical date should be the date of
entry into force of the Convention or the date of the grant of the right of
individual petition. The second issue is whether the approach to the backward
reach of the Convention obligation should be approached in the same way by a
national court as it is by the ECtHR, in light of the fact that this court must
deal with the question as a matter of domestic law.
229.
Part, at least, of the interrelationship between these two issues stems
from the fact that national courts in this country give effect to (or refuse to
give effect to) Convention rights as a matter of domestic law. The Human Rights
Act 1998 introduced to the law of the United Kingdom the European Convention on
Human Rights and Fundamental Freedoms. But it did so by making the Convention
part of national law so that the rights became domestic rights. Because the
rights are domestic, they must be given effect according to the correct
interpretation of the domestic statute. As Lord Hoffmann said In re G (Adoption:
Unmarried Couple) [2008] UKHL 38; [2009] AC 173, para 34, “[the courts’]
first duty is to give effect to the domestic statute according to what they consider
to be its proper meaning, even if its provisions are in the same language as
the international instrument which is interpreted in Strasbourg”.
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 …”
236.
The decision in this case as to which date is to be preferred partakes
of a two-pronged inquiry. First, what the Strasbourg court would decide on the
question of its temporal jurisdiction, if presented with a stark choice between
the date on which the right of personal petition was granted by the member
state and the date of entry into force of the Convention. Secondly, whether
this court should be influenced in its decision as to its jurisdiction under
the Human Rights Act by what it considers the Strasbourg court would decide. This
is the second issue identified in para 227 above.
237.
One can recognise the force of the point made by Lord Neuberger at para
84 that, as a matter of first principle, the critical date, so far as the
Strasbourg court is concerned, should be linked to the date on which it is
invested with the jurisdiction by a member state to entertain personal
petitions from that state’s citizens. As against that, it seems to me that,
from the date of entry into force of the Convention in a member state, since it
then assumed an international duty to abide by the terms of ECHR, that duty was
enforceable by another member state. Article 33 of ECHR (previously article 24)
provides for inter-state applications. In order to invoke this procedure, it is
not necessary for the complainant state to have been a victim. Rights could be
violated and inter-state enforcement actions could be taken long before the
right of individual petition was recognised in some member states. In light of
this, as I have said at para 220 above, it might be regarded as anomalous that
the individual actually affected by an alleged violation should not have the
right to enforce his or her right while another state could apply to the court
for redress. But it may be that this is an anomaly which simply must be
accepted.
238.
Whichever of the alternatives is chosen (the date of entry into force or
the date of the personal petition) it is clear that this is not to be regarded
as an immutable point from which no departure can be made. In the first place,
as Lord Neuberger has explained, it is well settled in Strasbourg case law that
a connection between the “triggering event” and the critical date can, in
certain circumstances, warrant extending the temporal jurisdiction of the
Strasbourg court back to that event. As the ECtHR has made clear in, among
other cases Janowiec, there must be relevant acts or omissions after the
critical date and “the period between the triggering event and the critical
date must remain reasonably short … [and while there was no] … absolute limit
on the duration of that period … it should not exceed ten years” (para 146).
239.
If Strasbourg is willing to contemplate a backward reach of up to ten
years between the triggering event and the critical date, is it certain that
ECtHR would not be prepared to back-date the reach of the Convention to the
date of its entry into force in a particular member state? In my view, it is
not. But it is by no means certain that the court would be prepared to do so.
Because of the need for caution, to which I have adverted (in para 235 above),
but not without some hesitation on my part, I am not prepared to say that ECtHR
would hold that the critical date was the entry into force of the Convention or
that the backward reach of the Convention should be extended to that date. In
the event, therefore, although Lord Neuberger and I are not in precise
agreement as to what Strasbourg would find, that disagreement does not signify
in terms of the present appeal. Either Strasbourg would find that the
critical date was the date on which the right to individual petition was
conferred or it is not clear that it would not so find. The consequence
is the same in both scenarios.
240.
A further matter requires to be considered, however. At para 149 of Janowiec
the Grand Chamber accepted “that there may be extraordinary situations which do
not satisfy the ‘genuine connection’ standard … but where the need to ensure
the real and effective protection of the guarantees and the underlying values
of the Convention would constitute a sufficient basis for recognising the
existence of a connection”. The type of ‘extraordinary situation’ in
contemplation here was explained by the court in para 150:
242.
In light of this passage, I agree with Lord Neuberger that, so far as
the Strasbourg court is concerned, the “Convention values” argument cannot
assist the appellants in their claim that a genuine connection between the triggering
event and the critical date should be recognised.
243.
What then of the claim based on HRA? Is there any reason that a national
court should adopt the same approach to the question of critical date as that
of the Strasbourg court? If not, what should the backward reach of HRA, if any,
be? Three possibilities must be considered. The first is that the date of the
coming into force of the Act itself should mark the date on which a right under
HRA arises. The second is that the right under HRA should be coterminous with
the temporal jurisdiction of the ECtHR. Finally, it is necessary to consider
whether the Convention values dimension could exceptionally provide a link to
the Killings in 1948, when that dimension is considered under HRA rather than
under ECHR.
244.
By way of preamble to consideration of these alternatives, and with
particular reference to the second of them, it should be emphasised that the
temporal jurisdiction of the Strasbourg court derives from provisions that
applied or apply exclusively to that court. Article 25 of ECHR provided that
the European Commission of Human Rights could receive petitions from any person
claiming to be the victim of a violation of his or her Convention rights,
provided that the member state against which the complaint was made had
declared that it recognised the competence of the Commission to receive such
petitions. Article 46 contained a similar provision in relation to the court.
Since 1994, it has been compulsory for member states of the Council of Europe
to accept the right to petition the Strasbourg court.
245.
Not only do these provisions not apply to claims under HRA, they have
nothing to say on the issue of the temporal jurisdiction of this court under
that Act. The right of individual petition is a specific, procedural question
which applies only to the Strasbourg court.
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.
248.
It was because the detachable nature of the procedural duty under
article 2 was clearly recognised for the first time in Šilih that the
decision in McKerr could no longer be followed. It was not because it
was considered that the pronouncements in that case about the non-retroactive
effect of the HRA were wrong. What Šilih showed was that the assertion
in McKerr that all the obligations arising under article 2 were to be
treated as parts of a single whole could no longer stand. Of course, it was
theoretically open to this court in McCaughey to refuse to follow the
finding in Šilih that the procedural duty under article 2 to investigate
suspicious deaths was detachable, but, absent such a decision, the need to
revise McKerr (without rejecting it in its entirety) was clear.
249.
I agree with Lord Neuberger, therefore, that it is not necessary for
this court to reach a conclusion on whether McKerr’s central thesis
(that HRA is not retroactive) was wrong. Rather, what this court must do is
decide whether, in light of the state’s detachable duty to investigate
suspicious deaths, there is an existing duty to conduct an article 2 compliant
inquiry into the deaths which are the subject of this appeal. On that basis it
is impossible to say that, simply because HRA came into force on 2 October
2000, ipso facto, there is no such duty. I would therefore dismiss the
first of the possibilities outlined in para 243 above.
250.
In para 74 of their printed case, the respondents argue that if the
appellants do not have a valid claim in Strasbourg under article 2, they cannot
have such a claim under the HRA because the Act gives effect to Convention
rights within the United Kingdom and does not purport to expand them beyond
what Strasbourg has recognised. This argument fails to address the different
sources of jurisdiction for Strasbourg and the municipal courts of this
country. Constraints on the temporal jurisdiction of the ECtHR, insofar as they
derived from articles 25 and 46 of ECHR and, latterly, derive from article 6 of
Protocol 11, did not and do not apply to national courts. Moreover, recognition
of the jurisdiction of this court to decide whether there is a procedural duty
to investigate the deaths does not involve an expansion of the nature and
content of that duty as they have been expressed by Strasbourg. The duty
remains the same in both instances. The issue is whether, by reason of the
different sources of jurisdiction, it should be regarded as arising in domestic
law if it does not arise in international law.
251.
When a domestic court, applying the HRA, considers the scope of the
Convention, the date of the recognition of the right of individual petition to
ECtHR is not relevant. One can recognise that it has, at least potentially,
some relevance for the Strasbourg court since it marks the beginning of the
period when that court has been formally invested with jurisdiction to hear
individual complaints. But the domestic courts are in a different position.
They must ask first whether the facts constitutive of the alleged violation
fall within the temporal scope of the Convention, and they must then ask
whether the autonomous article 2 investigative duty lies within the temporal
scope of the HRA. The ECtHR asks a different question, namely, whether the
matter falls within the temporal jurisdiction of the court, which is regulated
by either the date of the entry into force of the Convention in the member
state or the recognition of the right of individual petition.
252.
My unequivocal answer, therefore to the question, should the temporal
jurisdiction of the national court under the HRA be coterminous with that of
ECtHR is that it should not be. Just because the Strasbourg court does not have
temporal jurisdiction, it should not be regarded as automatic that the national
court does not.
253.
But the perceived need for legal certainty which prompted ECtHR’s
decision about the limits on the backward reach of the Convention applies, by
parity of reasoning, to the decision as to the national court’s jurisdiction.
As the Grand Chamber said in Janowiec in para 133, “… having regard to
the principle of legal certainty, the … temporal jurisdiction as regards
compliance with the procedural obligation of article 2 in respect of deaths
that occur before the critical date is not open-ended”. Likewise, the backward
reach of HRA and the recognition of a continuing duty under article 2 to
investigate cannot be open-ended. Some limit must be applied.
254.
That is not to say that there are no countervailing considerations which
militate against the fixing of a rigid limit. The role of national courts is to
interpret and apply the Convention and thereby provide effective human rights
protection to individuals. Indeed, the requirement that all member states of
the Council of Europe must confer the right of individual petition on their
citizens reflects the growing consensus that international human rights law is
about ensuring justice for individual citizens rather than being a matter of
relationships between governments.
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.
256.
The triggering event involved in this case, the killing of 24 apparently
innocent men, is clearly “of a larger dimension than an ordinary criminal
offence” and could well be said to be “the negation of the very foundations of
the Convention”. If it is established that the men were not trying to escape
when they were killed and that there was no justification for opening fire on them,
this would constitute a serious crime under international law. All these
elements of the killings, if shown to have existed, would strike at the heart
of “the guarantees and the underlying values of the Convention”. Should that
circumstance operate to provide, for the purposes of HRA, the exceptional form
of connection contemplated by ECtHR in para 150 of Janowiec?
257.
The Strasbourg court considered that the question of erosion of
Convention values did not arise in the pan-European context in relation to events
which occurred before the Convention was adopted on 4 November 1950. Although
it professed to be “sensitive” to the argument that there were contemporary
examples of some countries having prosecuted those responsible for war crimes
committed during the Second World War, it suggested that there was a
fundamental difference between accepting that such prosecutions were possible
and their being mandated by the Convention. Should the same considerations
obtain in deciding whether the need to protect Convention values ought to
prompt a finding that HRA should be applied in a way that would require
recognition of a current obligation to investigate killings which occurred
almost 67 years ago?
258.
For my part, I doubt if the question whether prosecution of historical
offences should be a matter of compulsion or discretion bears directly on the
issue of what is required to protect Convention values. I consider, however,
that the need to preserve those values cannot provide the basis of an
exceptional link. I have reached that view for the prosaic reason that those
values take their life from the Convention. They are not eroded by events which
took place before the Convention itself, and the values and guarantees which it
embodies, came into existence. I have concluded, therefore, that the protection
of Convention values dimension does not provide a link to an existing duty to
conduct an article 2 compliant inquiry into the Killings.
259.
Since no link to the triggering event has been established on any of the
bases advanced by the appellants, the question of revival of the duty to
investigate does not arise. Had that been a live issue in the case, I confess
that I would have found it less easy to resolve than does Lord Neuberger.
260.
The official account of the Killings given shortly after they occurred
in 1948 was affirmed in 1970 (in the House of Commons in a reply by the
Attorney General, Sir Peter Rawlinson) and on 21 January 2009 in a letter from
the British High Commissioner in which he said, “In view of the findings of two
previous investigations that there was insufficient evidence to pursue
prosecutions in this case, and in the absence of any new evidence, regrettably
we see no reason to reopen or start a fresh investigation”. As late as 2009,
therefore, the British Government was maintaining the stance that there was
nothing to challenge, much less gainsay the original official version of the Killings.
If the appellants had accepted that assertion, could they have been faulted for
doing so? Surely not. And, if not, can it be said that nothing new has
subsequently emerged that would have warranted a decision to no longer accept
the government’s claim?
261.
In fact, a number of new developments took place after January 2009. In
June 2009 the book, ‘Slaughter and Deception’ was published. Lord
Neuberger has said that this did not contain much new revelatory evidence. That
depends on how one views the state of the evidence and the attitude that might
reasonably have been taken to it before publication. If a decision to accept
the government’s steadfast denials of the need for an inquiry could not be
condemned, it is difficult to see how the appellants’ failure to challenge them
can be faulted. The least that ‘Slaughter and Deception’ did was to collate
material from various sources which supported the appellants’ case that the
government’s claim that no further inquiry was necessary could not be
sustained.
262.
Significantly, at a meeting held on 3 July 2009 and attended by members
of the Batang Kali action committee with their lawyers and representatives of
the Ministry of Defence and the Foreign and Commonwealth Office, it was
disclosed that the government was reconsidering the January 2009 decision not
to hold a further inquiry. This is significant in two aspects. First, it
indicates that the government believed that there was new material which called
for fresh consideration. Secondly, it sounds on the reasonableness of the
stance of the appellants in failing to take action to challenge the decision not
to hold a new inquiry.
263.
Lord Neuberger has said that in 1970 there were already considerable
reasons for doubting whether the official United Kingdom Government line on the
killings was correct, and that there were strong grounds which suggested that
the killings were unlawful (para 107 above). This assessment is very much a
matter of individual judgment and it is not easy to avoid the influence of
hindsight in making it. In any event, it must be set against the statement in
Parliament by a senior member of the government, the Attorney General,
endorsing what he implied was an independent decision of the Director of Public
Prosecutions “not to ask the police to pursue the inquiry” into the killings.
In fact, as the report of Detective Superintendent Williams revealed, he was of
the view that this decision was one secured by “a political change of view”.
This did not come to the attention of the appellants until 2009. Thereafter,
the government was considering the representations made by the appellants as to
whether a new inquiry would be held. It has not been suggested (nor could it
be) that the appellants should have challenged the failure to hold an inquiry
before the outcome of the government’s deliberations was known nor that they
failed to act with sufficient speed after it was disclosed to them.
264.
In the context of what is required to revive a duty to investigate, the
question of what new material will be sufficient to give rise to such a revival
should be approached broadly. In Brecknell v United Kingdom (2007) 46
EHRR 957 the Strasbourg court found that a renewed investigation into a 1975
murder was necessary in order to evaluate the link between a number of
previously closed cases involving fresh allegations of state collusion. It
emphasised that there could always be situations after the closure of cases
where “information purportedly casting new light on the circumstances of the
death comes into the public domain” - para 66. And in para 70, while pointing
out that the revival of the duty to investigate would not be prompted by any
allegation, the court said that “given the fundamental importance of [article
2], the 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”.
265.
Clearly, therefore, it is not necessary that the new material take the
form of hard evidence. Allegations, provided they are credible and have the
potential to undermine earlier findings, will suffice. A reassessment of
already existing evidence, if it is plausible and enjoys the same potential,
will also be sufficient. While, therefore, it may be true to say that nothing
substantial in the way of hard evidence was revealed in Slaughter and
Deception or by the appellants’ lawyers obtaining access to the files of
the Metropolitan Police and those of the Malaysian Police, the material that
they collectively provided cast an entirely new light on the decision not to
hold an inquiry.
266.
The impact of that new material was neatly and comprehensively stated in
para 82 of the Court of Appeal’s judgment:
267.
I agree with this summary and, if a link to the triggering event had
been established, I would have held that the duty to conduct an article 2
compliant inquiry had been revived.
268.
I agree with Lord Neuberger that the appellants cannot succeed by
recourse to customary international law because, at the time of the killings,
the duty to investigate suspicious deaths had not been recognised as a precept
of that system of law. As the Divisional Court in the present case said ([2012] EWHC 2445 (Admin), at para 105), “Any duty under customary international law
must be judged at the time of the occurrence of the act about which an inquiry
is sought”.
270.
One can quite understand how it would be inapt to construct a common law
duty to investigate which was, in effect, parallel to the statutory obligation
to investigate suspicious deaths occurring within the national court’s
jurisdiction. But suppose that the deaths had occurred at a time when the
United Kingdom had jurisdiction over the territory in which they had occurred
but, at that time, there was no article 2 duty to investigate nor, when an
inquest was subsequently sought, was there any statutory requirement to
investigate the deaths because, for instance, United Kingdom had by then
relinquished jurisdiction over the country in which they had occurred. If there
was a duty to investigate under customary international law, which was current
at the time that the deaths occurred, it seems to me that there would be a
strong argument that such a duty should find expression in the common law. But
those supposed facts are far removed from the circumstances of the present case
and I need say nothing further about the matter.
271.
Lord Neuberger has said that it would not be appropriate for a five
member panel of this court to reach a final conclusion on the question whether
proportionality should supplant rationality as a ground of judicial review
challenge at common law. I tend to agree, although I suspect that this question
will have to be frankly addressed by this court sooner rather than later. As
Lord Neuberger has said, it is possibly a matter of some constitutional
importance, although it is perhaps not as great as many commentators believe.
Lord Neuberger also suggested that a change from irrationality to
proportionality had implications which might be “very wide in applicable
scope”. This could very well be true but I believe that some of these have been
overestimated in the past. Indeed, the very notion that one must choose between
proportionality and irrationality may be misplaced.
272.
Without rehearsing all the arguments which swirl around this issue and
keeping in mind the perils of over simplification, it is important to start any
debate on the subject with the clear understanding that a review based on
proportionality is not one in which the reviewer substitutes his or her opinion
for that of the decision-maker. At its heart, proportionality review requires
of the person or agency that seeks to defend a decision that they show that it
was proportionate to meet the aim that it professes to achieve. It does not
demand that the decision-maker bring the reviewer to the point of conviction
that theirs was the right decision in any absolute sense.
273.
It should also be understood that the difference between a rationality
challenge and one based on proportionality is not, at least at a hypothetical
level, as stark as it is sometimes portrayed. This was well expressed by Lord
Mance in Kennedy v Charity Commission (Secretary of State for Justice
intervening) [2014] UKSC 20; [2015] AC 455. At para 51 he said:
“… 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’.”
275.
Lord Mance returned to the same theme in Pham v Secretary of State
for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591 where he said, at para 96:
“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.”
277.
Lord Reed, on the other hand, was not disposed to assimilate the tests
of proportionality and rationality. At para 115 of Pham he said:
278.
As in Pham so, probably, in the present appeal, it is not the
occasion to review the authorities. Final conclusions on a number of
interesting issues that arise in this area must await a case where they can be
more fully explored. These include whether irrationality and proportionality
are forms of review which are bluntly opposed to each other and mutually exclusive;
whether intensity of review operates on a sliding scale, dependent on the
nature of the decision under challenge and that, in consequence, the debate
about a ‘choice’ between proportionality and rationality is no longer relevant;
whether there is any place in modern administrative law for a ‘pure’ irrationality
ground of review ie one which poses the question, ‘could any reasonable
decision-maker, acting reasonably, have reached this conclusion’; and whether
proportionality provides a more structured and transparent means of review.
279.
In the present case, the appellants must present their case for a
proportionality review of the decision not to hold an inquiry in a context
where they cannot assert that there has been interference with their right to
have such an inquiry. Conventionally, of course, interference with a
fundamental right has been the setting where proportionality has most
frequently been considered recently – see, for instance, R (Aguilar Quila) v
Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621,
para 45; Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700,
paras 20 and 74; and R (Nicklinson) v Ministry of Justice (CNK Alliance
intervening) [2014] UKSC 38, [2015] AC 657, paras 80, 167-168, 310, 337.
281.
Lord Neuberger has suggested in para 131 above that the appellants have
contended that the four-stage test identified by Lord Sumption and Lord Reed in
Bank Mellat at paras 20 and 74 should now be applied in place of
rationality in all domestic judicial review cases. If this is the appellants’
position I question its feasibility. In the first instance there is no
legislative objective and no interference with a fundamental right; secondly, it
is difficult to see how the “least intrusive means” dimension could be worked
into a proportionality exercise where the decision did not involve interfering
with a right.
282.
I envisage a more loosely structured proportionality challenge where a
fundamental right is not involved. As Lord Mance said in Kennedy, this
involves a testing of the decision in terms of its “suitability or
appropriateness, necessity and the balance or imbalance of benefits and
disadvantages”.
283.
In the present case, such a proportionality challenge would require the
court to assess whether the government has struck the right balance between two
incommensurate values: protecting the public purse from the substantial
expenditure that would inevitably be involved, with (from its perspective)
little tangible or practical benefit, as opposed to exposing historic crimes by
the British forces, with the associated vindication of the appellants’
long-fought and undeniably worthy campaign. I have been reluctantly driven to
the conclusion that, without an identifiable fundamental right in play, it is
difficult to say that the decision not to hold an inquiry is disproportionate.
285.
With regret, I have concluded that the appeal cannot succeed. This is an
instance where 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.
286.
The claimants want the United Kingdom Government at long last to hold a
proper inquiry into how it was that 24 unarmed rubber plantation workers were
shot dead by British soldiers on 11 and 12 December 1948 during the emergency
in Malaya. They want the decisions taken by the Secretaries of State on 29
November 2010 and 4 November 2011 not to hold such an inquiry or to make any
other form of reparation quashed. They make their challenge under both the
Human Rights Act 1998 and the common law.
287.
The Human Rights Act challenge has always been ambitious. The events in
question took place before the European Convention on Human Rights was adopted
in 1950; before it was ratified by the United Kingdom in 1951; before it gained
sufficient ratifications to come into force in 1953; before the United Kingdom
accepted the right of individuals to petition the European Court of Human
Rights about alleged violations in 1966; and before the Human Rights Act 1998
turned the Convention rights into rights which are binding, not only in
international law, but also in United Kingdom law.
288.
The claimants seek to build two bridges. The first is to carry them from
the killings which took place in 1948 into the temporal scope of the Convention
which came into force in 1953. They say that 1953 is the critical date for this
purpose and that the killings took place sufficiently close to that date for
there still to have been an obligation to investigate them after it. The second
bridge must carry them from that internationally enforceable obligation into a
domestically enforceable obligation under the Human Rights Act. They say that
such an obligation arises because of new information which has come to light
since the Act came into force.
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.
295.
Against that, the Secretaries of State argue that the Court of Appeal
was not there deciding that there was new information sufficient to revive the
investigative obligation. They also argue that the essentials of the villagers’
accounts had been reported to the Metropolitan Police in 1970 and included in
DCS Williams’ report. Thus, although that inquiry had not been completed, the
British authorities did know all the essential points of dispute. Further,
although the claimants only got access to the files in the course of the
proceedings, they too knew about the soldiers’ confessions from press reports
and from a television documentary In Cold Blood, broadcast in 1992.
Thus, save for minor details, there was nothing “new” about what each side was
saying had taken place.
296.
In common with Lord Kerr, I find this a much more difficult issue to
resolve than does Lord Neuberger. Clearly, the soldiers’ confessions in 1969-1970
were indeed significant new material which cast doubt on the effectiveness of
the original inquiry and were sufficient to revive the obligation to
investigate. It is also possible that the results of the Malaysian Police
inquiries in the 1990s produced sufficient new material to revive the
obligation. It is one thing for survivors to give their accounts to journalists
and quite another thing to give them to the police in the course of an official
inquiry.
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).
299.
In my view, therefore, principle dictates that the critical date is the
date upon which the United Kingdom became bound in international law to observe
the guarantees of human rights and fundamental freedoms laid down in the
Convention; the triggering events were less than five years earlier; and
significant new material has recently come to light which, to say the least,
casts doubt on the effectiveness of the original inquiry and later criminal
investigations. My reservations about the human rights claim are different.
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).
302.
There are three bases for the common law claims: customary international
law, proportionality, and irrationality or Wednesbury unreasonableness.
I agree that it has not been shown that, when these killings took place,
customary international law had recognised a duty to investigate deaths of this
sort. That is sufficient to dispose of this part of the claim and it is
unnecessary to express a view on whether, in any event, such an obligation should
not be recognised as part of the common law because of the long history of
legislative activity governing the investigation of suspicious deaths.
303.
Much of the argument before us (but not in the courts below) was devoted
to whether the time had now come to recognise proportionality as a further
basis for challenging administrative actions, a basis which, if adopted, would
be likely to consign the Wednesbury principle to the dustbin of history.
The claimants’ principal argument (relying in particular on the work of
Professor Paul Craig) was that proportionality should be adopted as the basis
of challenge for all administrative decisions. An alternative argument was that
it should now be openly adopted by this court in a human rights context
(relying again on those commentators, including Professor Craig, who suggest
that it already applies in the context of fundamental rights).
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).
309.
Any rational decision-maker would take into account, at the very least,
the following salient points about the background history:
(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.
310.
Bearing all that in mind, a rational decision-maker would then consider
the advantages of some sort of inquiry, in summary:
312.
The reasons given by the Secretaries of State focussed on what might now
be learned of contemporary relevance, either to the organisation and training
of the army or to promoting race relations, from conducting an inquiry. They
did not seriously consider the most cost-effective form which such an inquiry
might take. They did not seriously consider the “bigger picture”: the public
interest in properly inquiring into an event of this magnitude; the private interests
of the relatives and survivors in knowing the truth and seeing the reputations
of their deceased relatives vindicated; the importance of setting the record
straight – as counsel put it, balancing the prospect of the truth against the
value of the truth. The Strasbourg court expressed this well in Harrison,
at para 58:
313.
If the Divisional Court had not set the bar to establishing the truth so
high, it might well have concluded that the value of establishing the truth,
which would serve all the beneficial purposes which it identified, was
overwhelming. In my view, the Wednesbury test does have some meaning in
a case such as this. The Secretaries of State did not take into account all the
possible purposes and benefits of such an inquiry and reached a decision which
was not one which a reasonable authority could reach. I would have allowed this
appeal.
B
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