Keyu & Ors v Secretary of State for Foreign & Commonwealth Affairs & Anor (Rev 1)

A domestic court is bound by existing appellate authority on the temporal scope of Convention investigative duties and cannot apply a later Strasbourg decision inconsistently with that authority. There was no common-law duty to investigate historical deaths through incorporation of customary international law, particularly where the alleged breach occurred before the asserted customary obligation arose. The court also held that responsibility for British soldiers remained with the British Government where the troops were British, paid by Britain and under British command. A decision under the Inquiries Act 2005 not to establish an inquiry was lawful where the decision-makers considered the evidence, the age and utility of any inquiry, costs, accountability, race-relations implications and the prospects of reaching reliable conclusions.

The claimants were survivors and relatives of civilians killed by a patrol of the Scots Guards at Batang Kali in Malaya in December 1948. They challenged decisions of the Secretaries of State for Foreign and Commonwealth Affairs and Defence refusing to establish a public inquiry or other investigation.

They argued that an inquiry was required by article 2 of the Convention, by the common law through customary international law, or because the British Government remained legally responsible for the soldiers’ conduct. They also alleged that the discretionary refusal to hold an inquiry was based on irrelevant considerations, omitted material considerations and was unreasonable.

1. No Convention duty. The court was bound by Re McKerr [2004] UKHL 12 and Re McCaughey [2011] UKSC 20. Those authorities precluded an obligation to conduct an article 2 inquiry into the 1948 deaths or to reopen earlier investigations. The court could not apply the later Strasbourg decision in Janowiec v Russia (55508/07 and 29520/09). The territorial issue therefore did not arise, although the court stated that it would in any event have been bound by R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 and R (Smith) v Secretary of State for Defence [2010] UKSC 29.
2. No common-law duty. McKerr had made clear that there was no common-law right to an inquiry into a death. The court could not create such a duty through customary international law. In any event, any customary obligation had to be judged at the time of the relevant act, which occurred in 1948.
3. Responsibility. The Scots Guards remained under British command and control. The British Government had deployed, trained and paid them, and the Army Council retained command. The Emergency Regulations supplied additional powers and protections but did not transfer responsibility for the soldiers’ conduct. The responsibility argument therefore supported the claimants, although it could not create an investigative duty where none otherwise existed.
4. Legality and evidence. At common law, excessive force used to effect an arrest or defend another was unlawful. The court considered the use of lethal force potentially subject to necessity and proportionality, but held that the surviving evidence could not establish definitively either deliberate execution or lawful shooting during escape. The fact that all 24 men died was indicative but not conclusive of disproportionate force.
5. Discretionary refusal. The Secretaries of State had considered the purposes of an inquiry, the age and evidential difficulties, the prospect of learning lessons, catharsis, public confidence, accountability, race-relations consequences and costs. Their conclusion that a useful and reliable inquiry was unlikely, and that the factors favouring an inquiry did not outweigh the disadvantages, was plainly open to them. The claims were dismissed.