R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs

The Supreme Court considered whether the United Kingdom authorities were required to hold a public inquiry into the events at Batang Kali on 11–12 December 1948. The decision under challenge was taken under section 1(1) of the Inquiries Act 2005. The court addressed three bases advanced by the appellants: (i) a duty under article 2 of the European Convention on Human Rights (ECHR) to investigate deaths in suspicious circumstances; (ii) a duty under customary international law, incorporated into the common law, to investigate alleged war crimes; and (iii) an ordinary public-law judicial review challenge to the respondents’ exercise of discretion not to order an inquiry.

Applying Strasbourg authorities (in particular Janowiec and Šilih) the majority held that, on the article 2 point, the claim was temporally limited: the Convention-based investigative duty could not be invoked in the appellants’ favour because the killings preceded the relevant critical date for Strasbourg jurisdiction in the way required by that case law, and even if a duty existed it was in any event time-barred or otherwise not enforceable domestically in the way sought. On customary international law, the court held there was insufficient support that such a retrospective investigatory duty existed in 1948 and, even if it now existed, it should not be imported into domestic common law given the statutory scheme for investigations. On the public-law challenge, the court applied established judicial-review principles (irrationality/Wednesbury and, on the facts, proportionality considerations) and concluded that the respondents had lawfully and rationally exercised their discretion not to order an inquiry.

The appellants are relatives of 24 civilians shot dead by a Scots Guards patrol at Batang Kali, Selangor, on 11–12 December 1948. They sought a public inquiry into the killings and associated conduct, alleging that the deaths amounted to unlawful killings and that subsequent investigations were inadequate or suppressed.

Their case was advanced on three distinct grounds: (1) that article 2 ECHR (as incorporated by the Human Rights Act 1998) imposed a procedural duty to investigate deaths arising in the United Kingdom’s jurisdiction and that this duty required a public inquiry; (2) that customary international law required an investigation into suspected war crimes and that this obligation should be recognised and enforced by domestic courts; and (3) that the Secretaries of State had unlawfully exercised their discretion under section 1 of the Inquiries Act 2005 by refusing to hold an inquiry, such that their decision should be quashed on judicial-review grounds.

Procedural history: the claim for judicial review began in the Divisional Court ([2012] EWHC 2445 (Admin)), permission was given and the Divisional Court dismissed the claim. The Court of Appeal dismissed the appellants’ appeal ([2014] EWCA Civ 312; [2015] QB 57). The appellants then appealed to the Supreme Court.

The Supreme Court framed the issues as: (i) jurisdiction and temporal reach of article 2 (whether the United Kingdom could be held to have an article 2 investigatory duty in respect of events in 1948); (ii) whether, independently, customary international law or its incorporation into the common law required an inquiry; and (iii) whether the respondents’ refusal to hold an inquiry was reviewable and, if so, unlawful (excess of power, irrationality/Wednesbury, failure to take relevant matters into account, or disproportionate).

The court analysed Strasbourg jurisprudence (notably Janowiec and Šilih) on retrospective application of the ECHR procedural duty to investigate suspicious deaths, and concluded that where a death pre-dates the relevant critical date a procedural duty can only arise if (a) there were relevant acts or omissions after the critical date; and (b) there is a genuine connection between the death and the critical date (with a ten-year rule of thumb), subject to a narrow Convention-values exception. Applying that framework, the majority found that the appellants could not invoke article 2: either the death was too remote from the critical date (as constrained by Strasbourg jurisprudence) or the claim was in any event out of time. On customary international law, the court held that there was no established retrospective duty in 1948 to require a state to hold the sort of public inquiry now sought, and it would be inappropriate for the common law to import such a wide retrospective obligation given statutory provision for inquiries and inquests. Finally, the court held that the Secretaries of State had rationally exercised their discretion under the Inquiries Act 2005 not to hold an inquiry; the reasons given (practical difficulties, likely limited contemporary value, evidential problems and cost) were relevant and coherent and did not disclose irrationality or disproportionate decision-making. The majority therefore dismissed the appeal. One Justice dissented on conclusions as to the public-law challenge and would have allowed the appeal on that ground.

Appeal dismissed. The majority concluded that (i) the appellants could not establish a Convention-based right to require an article 2 inquiry because the Strasbourg temporal/ jurisdictional limits (as explained in Janowiec and Šilih) were not met and any article 2 claim was in any event time-barred; (ii) customary international law did not require a retrospective duty to hold the inquiry in 1948, and it was inappropriate to import such a duty into the common law; and (iii) the decision under section 1 of the Inquiries Act 2005 not to hold an inquiry was a lawful, rational exercise of the executive discretion and not disproportionate. A minority (Lady Hale) would have reached a different conclusion on the public-law proportionality/Wednesbury challenge and would have allowed the appeal on that basis.

Claim for judicial review heard and dismissed by the Divisional Court: [2012] EWHC 2445 (Admin). Appeal to the Court of Appeal dismissed: [2014] EWCA Civ 312, reported [2015] QB 57. Appeal to the Supreme Court decided by this judgment: [2015] UKSC 69.