Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and another

A state’s investigative duty under article 2 cannot extend indefinitely to deaths predating the Convention. On the majority approach, the relevant temporal connection was absent where the deaths occurred more than ten years before the United Kingdom accepted individual petition.

Customary international law imposed no investigative duty when the deaths occurred. Nor should the common law create such a duty in an area comprehensively regulated by Parliament.

A ministerial refusal to establish a public inquiry is reviewable on ordinary public law grounds. The court must respect the executive’s role as primary decision-maker. The refusal in this case was rational and would not have been disproportionate even if proportionality were available as a general ground of review.

British soldiers shot and killed 24 unarmed civilians at Batang Kali in Selangor in December 1948. The official account was that the men had attempted to escape, but several soldiers later said that the victims had been deliberately killed. Investigations in Britain and Malaysia were incomplete.

Relatives of the victims sought a public inquiry. The Secretaries of State refused under section 1 of the Inquiries Act 2005, principally because of the passage of time, evidential difficulties, cost and limited contemporary value.

The Divisional Court dismissed judicial review proceedings: [2012] EWHC 2445 (Admin). The Court of Appeal dismissed an appeal: [2014] EWCA Civ 312, [2015] QB 57. The Supreme Court considered jurisdiction, article 2, customary international law and common-law review by rationality or proportionality.

1. Appeal dismissed by a majority of four to one. Lord Neuberger, with Lord Hughes, held that the article 2 claim lacked the required temporal connection. For Strasbourg purposes the critical date was when the United Kingdom accepted individual petition in 1966. The killings occurred more than ten years earlier. Lord Kerr regarded Strasbourg law as less certain but reached the same result. Lady Hale would have selected 1953, but rejected the claim because the deaths preceded the Convention itself.

2. The evidence disclosed in 1969 and 1970 was sufficiently weighty to constitute relevant post-critical-date material. Lord Neuberger nevertheless considered that later publications and disclosures did not materially add to what was already known. The claim would therefore also have been too late. Lord Kerr and Lady Hale disagreed on this subsidiary question and considered that later material cast a materially new light on the incomplete investigations.

3. The court left open whether an investigative obligation recognised by Strasbourg in respect of a pre-2000 death would necessarily be enforceable domestically under the Human Rights Act 1998. The relationship between In re McKerr [2004] UKHL 12 and In re McCaughey [2011] UKSC 20 did not require determination.

4. Customary international law did not impose a duty in 1948 to conduct a formal public investigation into a suspicious death or possible war crime. In any event, the common law should not create a wide, retrospective investigative duty in an area for which Parliament has legislated through coroners, inquiries and the Human Rights Act 1998. Lord Mance added that customary international law may shape the common law only consistently with constitutional principles, statute and established common-law rules.

5. Lord Mance, with the agreement of the whole court on jurisdiction, held that the British troops remained under United Kingdom command. The subsequent independence of Malaya did not transfer or extinguish any domestic responsibility of the United Kingdom towards the victims. There would therefore have been no jurisdictional obstacle had the substantive conditions for an inquiry been satisfied.

6. The ministerial refusal was lawful under conventional judicial-review principles. The reasons concerning age, evidence, cost and limited contemporary utility were relevant and coherent. The court declined to decide whether proportionality should replace or supplement Wednesbury review. Lord Neuberger, Lord Mance and Lord Kerr held that the refusal was not disproportionate in any event.

7. Lady Hale dissented on the common-law claim. In her view the decision-makers failed adequately to consider the public and private value of establishing the truth, correcting the official record and remedying the deficiencies of earlier investigations. She would have allowed the appeal for irrationality.

1. United Kingdom Supreme Court: The appeal was dismissed by a majority of four to one: [2015] UKSC 69.
2. Court of Appeal: The appeal was dismissed: [2014] EWCA Civ 312, [2015] QB 57.
3. Divisional Court of the High Court: The judicial-review claim was dismissed: [2012] EWHC 2445 (Admin).