Keyu & Ors v Secretary of State for Foreign & Commonwealth Affairs & Anor

The procedural obligation to investigate under article 2 of the Convention is detachable from the substantive obligation. A genuine connection may exist for historic deaths where the interval before the Convention’s critical date is reasonably short and a major part of the investigation took place, or ought to have taken place, afterwards. That did not create a domestic right to a new inquiry. Under the Re McKerr approach, the Human Rights Act 1998 did not operate retrospectively in these circumstances, and Re McCaughey was confined to legacy inquests. Customary international law could not circumvent that statutory scheme. The decision not to establish an inquiry was rational, although the lower court had imposed too high a threshold by seeking definitive findings.

The appellants included survivors and relatives of 24 civilians killed by a patrol of the Second Battalion of the Scots Guards at Batang Kali in 1948. They challenged the Secretaries of State’s refusal to establish a public inquiry or other investigation under the Inquiries Act 2005.

The Divisional Court dismissed the challenge: [2012] EWHC 2445 (Admin). The appeal concerned whether an investigative duty arose under article 2 of the Convention, customary international law or domestic public law; whether the United Kingdom remained responsible for the conduct of the troops after Malaysian independence; and whether the refusal to establish an inquiry was irrational.

1. Strasbourg temporal and territorial jurisdiction. Applying Janowiec v Russia 55508/07, the court held that the article 2 procedural obligation was detachable. The critical date was 23 October 1953, when the Convention had been extended to the Federation. The interval from the deaths was four years and nine months. The pre-critical-date investigation was woefully inadequate, while later confessions, police material and other evidence had never received independent evaluation. A genuine connection would probably have been established. In the light of Al-Skeini v United Kingdom (2011) 53 EHRR 589, the case also fell within the territorial ambit of article 2.

2. Domestic effect of article 2. The Court of Appeal remained bound by Re McKerr [2004] 1 WLR 807. Its ratio was that the Human Rights Act 1998 did not create a domestic investigative right for deaths occurring before the Act came into force. Re McCaughey [2011] 2 WLR 1279 concerned legacy inquests formally commenced before commencement, with substantial processing afterwards. It did not govern a new decision whether to begin an inquiry into an historic death.

3. Customary international law. The common law could continue to develop, but it could not be used to circumvent the statutory parameters of the Human Rights Act 1998. The court was also unpersuaded that customary international law imposed the claimed positive investigative obligation in 1948.

4. Public-law challenge. The Divisional Court had wrongly treated the ability to reach definitive conclusions as a necessary condition of a useful inquiry. Findings based on a lesser degree of certainty could still be valuable. That error did not invalidate the decisions under challenge. The Secretaries of State had considered the statutory criteria, the age and availability of witnesses, the evidential difficulties, costs, contemporary relevance and other relevant factors. Their decisions were rational and lawful.

5. State responsibility. The deployment of the Scots Guards derived from the Crown’s reserved complete control over defence and external affairs under the Selangor Treaty and Federation Agreement. Accountability therefore remained with the Crown in right of the United Kingdom. It was not transferred to Malaysia under article 167 of the Constitution of the Federation of Malaya, and the troops acted as a United Kingdom public authority for section 6 of the Human Rights Act 1998.

6. The appeal was dismissed.

1. Court of Appeal (Civil Division): The appeal was dismissed on 19 March 2014.
2. Divisional Court of the Administrative Court: The challenge to the refusal to establish an inquiry was dismissed: [2012] EWHC 2445 (Admin).