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

Michaelmas Term

[2015] UKSC 69

On appeal from: [2014] EWCA Civ 312

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

Respondents

Michael Fordham QC	Jonathan Crow QC
Danny Friedman QC	James Eadie QC
Zachary Douglas QC	Jason Coppel QC

Marcus Pilgerstorfer

Amy Rogers

(Instructed by Bindmans

(Instructed by Government

LLP)	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

1. The issue raised by this appeal is whether the respondents to this appeal, the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence, are required to hold a public inquiry (or other similar investigation). The inquiry which is sought would relate to a controversial series of events which began on 11 and 12 December 1948, when a Scots Guards patrol shot and killed 24 unarmed civilians in the village of Batang Kali, in Selangor. At that time, Selangor was a British Protected State in the Federation of Malaya, but it is now of course a state within the independent federal constitutional monarchy of Malaysia.

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.

The facts

Background

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.

The events of 11 and 12 December 1948

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.

The immediate aftermath

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:

“[W]hen persons are picked up by the security forces under

such circumstances until they are screened at headquarters it is impossible for the security forces to know whether they may be

members of ‘killer squads’ or to what extent they are involved.

Furthermore although some of the killed were rubber tappers it is our experience that such persons are frequently rubber tappers part time and bandits the rest of the time and that their arms are normally hidden in the neighbourhood and not found with them. Moreover, we feel that it is most damaging to the morale of the security forces to feel that every action of theirs, after the event, is going to be examined with the most

meticulous care.”

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:

“[Some] Chinese men found in the clearing were placed in a

room in one of the kongsi houses for the night, under guard. The following morning they were brought out of the room by two sentries who were on the verandah of the kongsi house in which the room was situated. The only other soldier in sight was the sergeant in command who was standing on the ground a little beyond the kongsi house, ready to receive the Chinese as they came off the verandah.

When all the Chinese had reached the ground from the verandah, one of them shouted and they thereupon split up into three groups and made a dash for the three entrances to the jungle. There is no doubt that they were under the impression that the only troops that they had to compete with were the two soldiers on the verandah of the kongsi house and the sergeant.

The attempted escape was obviously pre-arranged because there was no hesitation in the formation of the three groups and the shout was no doubt the pre-arranged signal for putting the plan into effect.

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:

“The Chinese in question were detained for interrogation under

powers conferred by the Emergency Regulations. An inquiry into this incident was made by the civil authorities and, after careful consideration of the evidence and a personal visit to the place concerned, the Attorney General was satisfied that, had the Security Forces not opened fire, the suspect Chinese would have made good an attempt at escape which had been obviously pre-arranged. A full statement was issued in Kuala Lumpur on

3 January.”

25. Demands were made for a public inquiry conducted by a High Court judge, but they were rejected.

Events in 1969 and 1970

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.

37.       On 12 June 1970 the DPP was provided by one of his officials with a minute

which concluded:

“I am satisfied that on the evidence we have there is no prospect

of criminal proceedings. But there are at least five persons who say this was murder. It seems to me inquiries must be pursued in Malaysia otherwise the inquiry will only be half done. Furthermore there are a number of witnesses out there who claim to have seen what took place, including Cheung Hung. The various statements by this man are inconsistent and we want to pin him down. It appears also that a number of persons who say they saw what happened (women on the lorry) could not have been in a position to do so. I feel that this should be cleared up. I am of the opinion that, if we do not go through to the bitter end, we will lay ourselves open to attack by the

newspapers and by the anti-military brigade.”

38.       The DPP’s endorsement of that minute was in these terms:

“I have nothing to add to my minute of 5/6/70. Having

embarked on this inquiry, must we now go as far as we can? Perhaps however the Malaysian Government will refuse entry to the investigating team, which will save any further

expenditure of time and money on this unrealistic inquiry.”

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:

“I am satisfied that the institution of criminal proceedings

would not be justified on the evidence so far obtained. Further in my view the prospect of obtaining any sufficient additional evidence by further police investigation in Malaysia are so remote that this would not be warranted. Accordingly, I do not propose to ask the police to pursue the inquiry and the Attorney

General agrees with my views.”

40.       On 30 July 1970, DCS Williams produced a report on his investigation to

date. It stated:

“Cootes, Tuppen (with solicitor), Brownrigg and Kydd

admitted in statements, after caution, that murder had been committed. Woods, in the presence of a solicitor, verbally admitted that murder had been committed, after he had been cautioned. Remedios, in the presence of a solicitor, refused to comment on, or add anything to his original sworn statement.

Porter and Gorton made statements denying the allegations. …

At the outset 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

after the General Election of 18 June 1970.”

41.       Meanwhile, the Ministry of Defence decided not to hold an inquiry into the

Killings.

Events from 1992 to 1997

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:

“What the documentary does show is that in 1970 there

probably were a number of people with relevant information to give if the police had gone to Malaysia. Even though it now

seems almost certain that Chong Fong’s account is fictional, I

do not consider that it would be fair to say that all the surviving villagers were inherently unreliable. It seems to me that they were never given an official opportunity to tell their side of the

story due to fear of what they would say.”

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:

“… we see no case for pushing ahead with an answer to the

petition while air services and Bosnia remain such sensitive issues. ... Even if we were [put under pressure by the MCA or the Malaysian Government] we would be able to resist it by taking the line that a suitably thorough examination of the

relevant papers in the UK was necessarily taking time.”

47.       A letter from the High Commission to the FCO of 6 April 1994 commented:

“It remains in our interests to play this affair long … I therefore

recommend that the MCA’s petition is submitted to the Queen

as soon as possible. … This would buy us a bit more time in

which to consider the terms of our reply to the petition (I will

telegraph separately with further advice on this).”

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:

“As you will appreciate, the role of the CPS is limited to

assessing the quality of evidence and making decisions on the question of criminal proceedings. The Petition from the villagers raises other matters of compensation which are not

within our remit.”

He also stated that no further action was envisaged:

“although this does not preclude you from asking the CPS to

examine any further evidence which may emerge from present investigations in Malaysia so that your Ministers may be advised whether any grounds exist for requesting further

investigations.”

52.       The FCO replied on 15 March 1994 stating:

“I am very sorry that other events have prevented me from

acknowledging before now the very helpful paper enclosed with your letter of 2 February. I copied it at the time to our High Commission in Kuala Lumpur. Their recommendation was that, since we were under no particular pressure from the Malaysians to produce an answer, we should not take further action on the Petition while certain sensitive issues in our relations with Malaysia remained unresolved. Events since then tend to reinforce that case, and I therefore propose to leave the papers on the file for the moment. I will reassess in due course. I will

let you know before moving again.”

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.

More recent events

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:

“In view of the findings of the two previous investigations that

there was insufficient evidence to pursue prosecutions in this case, and in the absence of new evidence, regrettably we see no

reason to re-open or start a fresh investigation.”

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.

The instant proceedings

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

64. The first issue which it is appropriate to address is whether the present claim is properly brought against the United Kingdom at all. That submission appears to apply to all three of the bases upon which the appellants rest their case, but it was principally developed in argument by reference to the first basis, article 2 of the

Convention (“article 2”). In so far as the claim is brought under article 2, this issue

is encapsulated in the question whether the appellants’ complaint relates to alleged 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, 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 (“the 1998 Act”).

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.

The appellants’ case based on article 2 of the Convention

Introductory

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 996, 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.

67.       However, the respondents contend that the appellants’ claim, in so far as it is

based on article 2, is barred for what may be characterised as temporal or procedural

reasons. The respondents’ first argument has two strands and is based on the fact

that the Killings occurred (i) before the Convention came into existence, and indeed (ii) before the 1998 Act came into force. Although the Strasbourg court has somewhat finessed the strict rule that the Convention cannot apply retrospectively, the respondents contend that the finessing cannot assist the appellants. The

respondents’ second argument is that, even if the first argument is wrong, the

appellants are too late, as their article 2 right (if any) to seek an inquiry is time-

barred. I shall take those arguments in turn.

The contention that there is no right under the Convention

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 (2013) 58 EHRR 792, from which almost all the applicable principles can be taken for present purposes.

71.       In para 128 of Janowiec, the Grand Chamber confirmed that “the provisions

of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into

force of the Convention with respect to that Party (the critical date)”. The issue in

this case which requires consideration of judgments other than Janowiec is whether

“the critical date” is the date on which the state in question signed up to the

Convention or the date on which that state gave its citizens the right to petition the Strasbourg court in relation to any alleged infringement of their Convention rights. Apart from that, however, as the Grand Chamber explained in Janowiec, Strasbourg jurisprudence has established that the general principle that the Convention is not retrospective does not necessarily mean that a state has no duty to investigate a suspicious death simply because it occurred before the critical date.

72. As the Grand Chamber put it in para 141 of Janowiec, in such a case, there are three relevant applicable requirements:

“First, where the death occurred before the critical date, the

court’s temporal jurisdiction will extend only to the procedural

acts or omissions in the period subsequent to that date. Secondly, the procedural obligation will come into effect only

if there was a ‘genuine connection’ between the death as the

triggering event and the entry into force of the Convention.

Thirdly, a connection which is not ‘genuine’ may nonetheless be sufficient to establish the court’s jurisdiction if it is needed

to ensure that the guarantees and the underlying values of the

Convention are protected in a real and effective way.”

In other words, in the case of a death before the critical date, two criteria must be

satisfied before the article 2 investigation duty can arise, namely (i) relevant “acts

or omissions” after the critical date, and (ii) a “genuine connection” between the

death and the critical date. However the second criterion may be finessed where it

is necessary to underpin “the underlying values of the Convention”.

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:

“… a plausible, credible allegation, piece of evidence or item

of information comes to light which is relevant to the identification and eventual prosecution or punishment of those responsible. Should new material emerge in the post-entry into force period and should it be sufficiently weighty and compelling to warrant a new round of proceedings, the court will have to satisfy itself that the respondent state has discharged its procedural obligation under article 2 in a manner

compatible with the principles enunciated in its case law.”

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:

“[T]he lapse of time between the triggering event and the

critical date must remain reasonably short if it is to comply with

the ‘genuine connection’ standard. Although there are no

apparent legal criteria by which the absolute limit on the duration of that period may be defined, it should not exceed ten years. Even if, in exceptional circumstances, it may be justified to extend the time-limit further into the past, it should be done

on condition that the requirements of the ‘Convention values’

test have been met.”

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.

80.       In Šilih, para 140, the Grand Chamber said this:

“The court reiterates 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 or, as the case may be, prior to the entry into force of

Protocol No 11, before the date on which the respondent party recognised the right of individual petition, when this

recognition was still optional (the critical date). This is an

established principle in the court’s case law based on the

general rule of international law embodied in article 28 of the

Vienna Convention” (emphasis added).

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.

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.

305. But that still leaves the Wednesbury challenge. I do not think that, by concentrating on the proportionality argument, it was intended to abandon the more conventional challenge. Issue 2 identified in the Statement of Facts and Issues was

whether the refusal to hold an inquiry or otherwise investigate can be justified “by the applicable standard”. If not proportionality that must be Wednesbury

unreasonableness or irrationality. The decisions in question were contained in the principal decision letter of 29 November 2010 and confirmed, after these proceedings had begun, on 4 November 2011. The reasons given for deciding not to hold an inquiry are summarised by Lord Neuberger at paras 124 and 125 and it is unnecessary for me to repeat them. I would only add that those reasons were focussed upon a statutory inquiry under the Inquiries Act 2005; but the Secretaries

of State also concluded that the reasons against such an inquiry “also militate against

the establishment of any other form of inquiry or investigation”.

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).

308. One of the reasons given by the claimants for adopting proportionality instead of Wednesbury unreasonableness or irrationality is Professor Craig’s view that “cast in its correct terms it could almost never avail claimants” (Administrative Law, 7th ed (2012), para 21-027) and that “it is difficult to think of a single real case in which the facts meet this standard” (“The Nature of Reasonableness” (2013) 66 CLP 131,

161). This case is an excellent opportunity to test whether that proposition is correct.

309. Any rational decision-maker would take into account, at the very least, the following salient points about the background history:

(1)	The enormity of what is alleged to have taken place. If the guardsmen did indeed kill innocent and unarmed villagers in cold blood, then even by the different standards of the time, this was a grave atrocity which deserves to be acknowledged and condemned.
(2)	The inadequacy of the initial investigation. There were many people present at the scene who could have been asked for their accounts. It was totally unacceptable to assume that the guardsmen and their police escorts were telling the truth but that survivors and civilian eye- witnesses would not do so.
(3)	The weight which should be accorded to the confessions made in 1970. Although originally given to a newspaper, four were repeated under caution to the police. They were enough to cast serious doubt on the official account and to prompt a serious police inquiry.
(4)	The premature termination of that inquiry, which was obviously being conscientiously conducted by DCS Williams, and his view that this was a political decision, unsurprising given that it happened very shortly after the change of government in 1970.
(5)	The evidence obtained from the Royal Malaysian Police inquiry in the 1990s. Although some of the relatives and survivors had previously given their accounts to others, this evidence had only recently come to light.
(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:

(1)	The very real possibility that, despite the difficulties, conclusions could be drawn about what is most likely to have happened.
(2)	The importance of the British authorities, at long last, seeking to make good the deficiencies of the past inquiries and the very real benefits this could bring in terms of catharsis, accountability and public confidence, whether or not firm conclusions could be reached.
(3)	If firm conclusions could be drawn, the huge importance of acknowledging what had gone wrong and setting the record straight.

311.     Against those advantages, a rational decision-maker would set the following

disadvantages:

(1) The passage of time, the death of so many of the participants and witnesses, and the conflict of evidence, which would make finding the facts more difficult.

(2) The changes which have taken place in the organisation and training of the army, the climate of law and public opinion, such that it is unlikely that practical lessons could be learned about how better to handle such situations today.

(3) The cost of even a “stream-lined” inquiry, which would be not

inconsiderable, involving as it would have to do inquiries to be made in Malaysia, which would depend upon the co-operation of the Malaysian authorities.

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:

“Even where no article 2 procedural obligation exists, it is in

the interests of governmental transparency and of justice in the wide sense for a government to arrange for a further review in connection with a national tragedy in response to concerns of victims or their families who are not satisfied with the results of the terminated investigations carried out in accordance with national law, notwithstanding that the tragedy has occurred

many years earlier.”

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.