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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Keyu & Ors v Secretary of State for Foreign & Commonwealth Affairs & Anor  EWCA Civ 312 (19 March 2014)
Cite as:  1 QB 57,  3 WLR 948,  EWCA Civ 312,  WLR(D) 138,  QB 57,  4 All ER 99
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President of the Queen's Bench Division and Mr Justice Treacy
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
LORD JUSTICE RIMER
LORD JUSTICE FULFORD
| KEYU & OTHERS
|- and -
|SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS & ANR
Jonathan Crow QC and Jason Coppel QC (instructed by The Treasury Solicitor) for the Respondents
Hearing dates : 26-28 November 2013
Crown Copyright ©
Lord Justice Maurice Kay:
This is the judgment of the court to which all three members have made substantial contributions.
"His Majesty shall have complete control of the defence and of all the external affairs of the Federation, and undertakes to protect the Malay States from external hostile attack and for this and other similar purposes, His Majesty's Forces and all persons authorised by or on behalf of His Majesty's Government shall at all times be allowed free access to the Malay States and to employ all means of opposing such attacks."
"There is a very close liaison and coordination between the police and military at all levels and in each State and Settlement the Chief Police Officer retains final decision of responsibility for law and order. In most affected areas in the Federation troops are taking a very big share in evacuation operations, but we are maintaining the principle that military are acting in aid of civil power. Except in static guard duties troops operate with an element of police presence wherever possible. There is excellent understanding between police and military staffs in both the Federation and Singapore and no difficulty seems to be arising regarding their respective roles. "
The decision to send a brigade of the British army to Malaya
The deaths at Batang Kali on 11/12 December 1948
i) Batang Kali was a village on a rubber plantation, inhabited by families. They did not wear uniforms, had no weapons and were a range of ages.
ii) On the way to the village the patrol pursued two uniformed armed insurgents, but lost them.
iii) A young man was shot dead by the patrol in the village on the evening of 11 December 1948; he was said to be Loh Kit Lin.
iv) The inhabitants were separated by the patrol as between (1) men and (2) women and children. They were detained in custody in the village.
v) Interrogation of the inhabitants took place. There were simulated executions to frighten them, causing trauma.
vi) The police officers secured information from one of the males, Cheung Hung, about armed insurgents who occasionally visited the village to obtain food supplies. This information was passed to the patrol.
vii) A lorry arrived in the morning. It was searched. The kepala (headman) was detained. Rice was found.
viii) The women and children and one traumatised man were loaded onto the lorry. It was driven a little way. They were guarded by members of the patrol before being driven back to their village.
ix) The hut with 23 men was unlocked. Within minutes all of the 23 men were dead as a result of being shot by the patrol.
x) The inhabitants' huts were then burned down and the patrol returned to its base.
Events following the deaths
"Another 2 SG patrol captured twenty six male bandits near K Kubu Bahru. Detained for night in Khongsi huts. Early the following morning on information from one of the captured bandits ambush laid for lorry arriving with food. Lorry captured. Bandits attempted mass escape. 25 killed. One recaptured." (Punctuation added).
i) He told the police that the inquiry originated as a result of public disquiet and a complaint from the owner of the rubber estate where it occurred. No evidence was taken on oath. Statements had been taken from each member of the patrol which were given to him by the police. No enquiries were made of inhabitants of the village; none was questioned by him
"for a very good reason, because they were most unlikely to talk and, if they did talk, to tell the truth".
He visited the scene and met the sergeants and the two detectives. He had examined the burnt down huts and found shell cases that had obviously exploded during the fire and were obviously illegally there. He concluded:
"After my inquiry I was satisfied of the bona fides of the patrol and there had not been anything that would have justified criminal proceedings. I reported my findings to the High Commissioner, Sir Henry Gurney, and am under the impression that a written report was made for record purposes and passed to the Special Branch at Kuala Lumpur."
ii) He told the World at One that he arranged to meet the sergeant in charge of the patrol and another non commissioned officer. They had given him an account of arresting men they believed were bandits and had put them into huts. On the following morning, the patrol let the men out to take them to interrogate them, but they made a dash for it and it was then the Guards opened fire. He had cross examined them and the police officers who had accompanied the patrol and was "absolutely satisfied a bona fide mistake had been made."
"10. Everyone who has visited the spot including the Attorney General is satisfied 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. Moreover, one Chinese had been shot the previous evening during an attempted escape and the others had been warned of the danger to them should they attempt to follow his example."
"Any act or thing done before the coming into force of this Regulation which would have been lawfully done if this Regulation had been in force, shall be deemed to have been lawfully done under this Regulation."
Accordingly, with retrospective effect this provision appeared to protect the guardsmen if the 24 men had been killed during an attempted escape.
"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 that enquiries must be pursued in Malaysia, as 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 witness 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 the anti-military brigade."
The DPP's endorsement read:
"I have nothing to add to my minute of 5/6/70 (which, we interpolate to note, is unavailable). Having embarked on this inquiry, must we now go as far as we can? Perhaps the Malaysian Government will refuse entry to the investigating team and save any further expenditure of time and money on this unrealistic inquiry."
"The evidence shows that there is a substantial conflict among the soldiers who were present at the village of Batang Kali. Some confirm the allegation in The People newspaper, whereas others deny that anything of the kind took place. Further, the statements of the witnesses supporting the allegations must be viewed with reserve in that these men made statements in respect of a civil inquiry held in Malaya in 1948 and, without exception, maintained that the villagers had been shot whilst trying to escape. An alleged survivor says that he was an eye witness to the shooting, but in a statement made in 1948 he said he did not see what occurred. Neither did the two police officers who accompanied the patrol witness any of the shooting that took place in the village. Taking into consideration these facts together with the fact that the incidents took place 21 years ago, 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 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."
"At the outset this matter was politically flavoured and it is patently clear that the decision to terminate enquiries in the middle of the investigation was due to a political change in view when the new Conservative Government came into office after the General Election on 18 June 1970."
"77. It is clear from internal British Government memoranda that there was seen to be no reason to provide rapid assistance to the Royal Malaysia Police inquiry. Sometime during 1994 the Royal Malaysia Police made a request for help, but it is evident that it was considered not to be in the interests of the British Government to progress that request with any speed.
78. A Royal Malaysia Police report of 31 May 1995 concluded that further enquiries were necessary, including obtaining the views of the chief pathologist as to examining the bodies and taking statements from the Scots Guards. 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.
79. It was submitted by the claimants that the High Commission in Kuala Lumpur had done its utmost to procrastinate, to delay British police assistance to the Royal Malaysia Police Investigation and to prevent the Royal Malaysia Police coming to the United Kingdom to investigate. Although there is material that lays the foundations for these submissions, we cannot decide on the materials before us that the High Commission played such a role. We can, however, record that the Royal Malaysia Police obtained virtually no assistance from the United Kingdom authorities and that no one from the Royal Malaysia Police came to the United Kingdom."
"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."
The principal issues arising in this appeal
Janowiec v Russia
"128…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') …
129. Where an act, omission or decision alleged to have violated the Convention occurred prior to its entry into force but the proceedings to obtain redress for that act were instituted or continued after its entry into force, these proceedings cannot be regarded as part of the facts constitutive of the alleged violation and do not bring the case within the Court's temporal jurisdiction….
130… in order to establish the Court's temporal jurisdiction it is essential to identify, in each specific case, the exact time of the alleged interference. In doing so, the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated…
132… the procedural obligation to carry out an effective investigation under Article 2 had evolved into a separate and autonomous duty. Although it is triggered by the facts concerning the substantive aspect of Article 2, it can be considered a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date…
133. However, having regard to the principle of legal certainty, the Court's temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended…"
"142…the Court's temporal jurisdiction extends to those procedural acts and omissions which took place or ought to have taken place in the period after the entry into force of the Convention in respect of the respondent government.
144. The mention of "omissions" refer to a situation where no investigation or only insignificant procedural steps have been carried out but where it is alleged that an effective investigation ought to have taken place. Such an obligation on the part of the authorities to take investigative measures may be triggered when 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…. However, if the triggering event lies outside the Court's jurisdiction ratione temporis, the discovery of new material after the critical date may give rise to a fresh obligation to investigate only if either the 'genuine connection' test on the 'convention values' test…have been met."
"146… the time factor is the first and most crucial indication of the 'genuine' nature of the connection…the 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…
148… for a 'genuine connection' to be established, both criteria must be satisfied, the period of time between the death as the triggering event and the entry into force of the Convention must have been reasonably short, and a major part of the investigation must have been carried out after the entry into force. "
Would the appellants' case succeed in Strasbourg?
"Nor has any relevant piece of evidence or substantive item of information come to light in the period since the critical date. That being so, the court concludes that neither criterion for establishing the existence of a "genuine connection" has been fulfilled."
The Human Rights Act 1998
"…Parliament chose not to give [the Human Rights Act] retroactive effect. In relation to Article 2, the intention of Parliament… was not to create an investigative right in respect of deaths occurring before the Act came into force."
"61…The relevant event in these appeals is the fact that the Coroner is to hold an inquest into [the]…deaths…
62. Is the presumed intention of Parliament when enacting the HRA that there should be no domestic requirement to comply with this international obligation? This is a very different question from that considered by the House of Lords in In re McKerr…, and so far as I am concerned it produces a different answer. The mirror principle should prevail [over the non-retrospective principle]. It would not be satisfactory for the coroner to conduct an inquest that did not satisfy the requirements of article 2, leaving open the possibility of the claimants making a claim against the United Kingdom before the Strasbourg Court. On the natural meaning of the provisions of the HRA they apply to any obligation that currently arises under article 2. These appeals are concerned with such an obligation. The mirror principle reinforces an interpretation that does not exclude this obligation from the ambit of the HRA"
"It may be that this involves a departure from McKerr. I am inclined to think that it does."
"77… the holding of inquests into the deaths in this case will be a procedural act which the state itself has decided should take place…
78…The effect of Silih…is to breathe life into the procedural obligation post-commencement in a way that domestic law can recognise and give effect to.
79…as there is nothing in the wording of the 1998 Act to prevent us from directing that when he conducts these inquiries the coroner must comply with the procedural obligation under article 2, I would hold that we should do so. "
This approach undoubtedly attaches significance to the fact that the coroner was already seized of the matter before 1 October 2000 and was proceeding with the inquest after that date.
"89… The coroner began his inquiries at the very latest once the Director of Public Prosecutions had announced on 2 April 1993 that there was to be no prosecution. But for a variety of reasons things have proceeded very slowly since then and a significant part of the investigation, in particular the inquest, has still to take place.
90. I do not see this as involving the retrospective operation of the 1998 Act. As public authorities, the coroner and the court have now to act compatibly with the Convention rights…
93…Accepting that this inquest must comply with the procedural requirements of article 2 does not require that old inquests be reopened (unless there is important new material) or that inquiries be held into historic deaths… if there is now to be an inquiry into a death for which the state may bear some responsibility under article 2, it should be conducted in an article 2 compliant way."
Again, this seems to focus on inquests which are being held rather than question of whether an investigation or inquest into a historic death should be held at this stage.
Customary International Law
"At a later stage of the appeal…I did wonder whether customary international law may have a direct role to play in the argument about the development of the common law."
"unless they are in conflict with an Act of Parliament".
For a recent application of that proviso, see Mutua v Foreign and Commonwealth Office  EWHC 1913 (QB), at paragraph 82, per McCombe J (as he then was). When rejecting the appeal to common law (albeit not in relation to customary international law) in McKerr, Lord Nicholls said (at paragraph 32):
"The effect of the proposed right would be to impose positive human rights obligations on the state as a matter of domestic law in advance of the date on which a corresponding positive obligation arose under the 1998 Act."
"In any event, it seems to us that the Secretaries of State are correct in their contention that any duty under customary international law must be judged at the time of the occurrence of the act about which an inquiry is sought. The act occurred in 1948 long before any duty arose as part of customary international law."
Having considered the international instruments and adjudication referred to by Mr Fordham in his submissions in this court, we believe that the conclusion of the Divisional Court was and remains correct. There may have been straws in the wind but we are not persuaded that international law imposed an obligation of the kind contended for in 1948.
The Wednesbury Challenge
"… it would be quite wrong to confine ourselves in relation to this central part of the inquiry to making findings where we were certain what happened. On the contrary, it is in our view our duty to set out fully in our Report our reasoned conclusions on the evidence we have obtained and the degree of confidence or certainty with which we have reached those conclusions. We are not asked to report only on these central matters on which the evidence makes us certain".
"they should not assume that an Inquiry would be 'unlikely' to be in a position to reach firm conclusions about what happened in December 1948" (original emphasis).
Against that background, they considered a number of matters including the facts that most of the witnesses are now dead, the survivors are in their 80's and that "it is obvious that there may be difficulties in relying on oral evidence given now about events that took place more than 60 years ago".
"…the goal of establishing the truth about contested events is especially important and especially likely to justify the substantial financial and other resources which an Inquiry inevitably involves – when that truth can cast light on systemic or institutional failings, the correction of which would be likely to reduce the prospects of a repetition … this is more likely to be the case where the events the subject of the inquiry are relatively recent ones."
"It is difficult to see how a report on training practices or command structures in 1948 would have the same sort of contemporary relevance."
"112. … First, the Scots Guards were part of the British Army in contradistinction to the Malay Regiment and other local forces. Second, it is evident from the minute of the British Cabinet set out at paragraph 22 above [referred to in  above] that the reason for the decision to send the Brigade of the British Army was to defend British interests against the advance of communism on what was in reality territory the British government controlled, to prevent the deaths of British citizens and to protect its economic interests. Third, control over the deployment of the army in Malaya was vested in British Defence Co-ordination Committee Far East; this was chaired by the Commissioner General and comprised only military members, though the High Commissioner of the Malay Federation could be invited to attend. Fourth, the Scots Guards were paid by the British Government, not by the Federation or the Ruler of Selangor. Fifth, it is clear from the role played by Major General Sir Charles Boucher in relation to the investigation in 1948 that his command was in charge of the Scots Guards."
"… far from clear how liabilities for the acts of the British Army (as opposed to forces of any other part of the Commonwealth) can be said not to arise from the acts of the Crown in respect of the Government of the United Kingdom."
The court also referred to a concession to like effect made in Mutua v. Foreign and Commonwealth Office  EWHC 1913, recorded by McCombe J (as he then was) at paragraph 118.
" (1) His Majesty shall have complete control of the defence and of all the external affairs of the State of Selangor and His Majesty undertakes to protect the Government and State of Selangor and all its dependencies from external hostile attacks and for this and other similar purposes His Majesty's Forces and persons authorised by or on behalf of His Majesty's Government shall at all times be allowed free access to the State of Selangor and to employ all necessary means of opposing such attacks."
Article 4 of the Agreement was in identical terms, save that for "the State of Selangor" there was substituted "the Malay States".
"16. Subject to the provisions of this Agreement, and in particular without prejudice to the provisions of Clauses 18, 66 and 110 thereof, the executive authority of the Federation shall extend to all matters set out in the First Column of the Second Schedule to this Agreement."
We would, if we could, also quote article 17, but it has been so highlighted as to render it illegible in the copy provided to us. Its substance, though, was, we were told, to vest the executive authority of the Federation in the High Commissioner. Article 19 also provided, so far as material that:
"In the exercise of his executive authority, the High Commissioner shall have the following special responsibilities, that is to say:"
(b) the prevention of any grave menace to the peace or tranquillity of the Federation or any Malay State or Settlement comprised therein …
"Defence and External Affairs
1. All matters relating to defence including:
(a) Naval, military or air forces of His Majesty; local forces; any armed forces which are not forces of His Majesty but are attached to or operating with any of His Majesty's forces within the Federation; …
(c) Naval, military and air force manoeuvres;"
"Subject to the provisions of this Agreement, it shall be lawful for the High Commissioner and Their Highnesses the Rulers, with the advice and consent of the Legislative Council, to make laws for the peace, order and good government of the Federation with respect to the matters set out in the Second Schedule to this Agreement, and subject to any qualification therein."
and to article 13, which provided:
"His Majesty may from time to time give to the High Commissioner Instructions, either under his Majesty's Sign Manual and Signet, or through a Secretary of State, for the due performance, or the proper exercise, of the powers, duties and rights of the High Commissioner under, and in conformity with, this Agreement …."
The relevant Secretary of State was the Colonial Secretary.
"167. – (1) Subject to the provisions of this Article, all rights, liabilities and obligations of –
(a) Her Majesty in respect of the government of the Federation, and
(b) the Government of the Federation or any public officer on behalf of the Government of the Federation,
shall on and after Merdeka Day [31 August 1957] be the rights, liabilities and obligations of the Independent Federation.
(2) Subject to the provisions of this Article, all rights, liabilities and obligations of –
(a) Her Majesty in respect of the government of Malacca or the government of Penang,
(b) His Highness the Ruler in respect of any State, and
(c) the Government of any State,
shall on and after Merdeka Day be the rights, liabilities and obligations of the respective States. …"