CHONG AND OTHERS v. THE UNITED KINGDOM

Communicated on 10 October 2016

FIRST SECTION

Application no. 29753/16
Nyok Keyu CHONG and others
against the United Kingdom
lodged on 24 May 2016

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 11 and 12 December 1948 a group of twenty-four unarmed civilians were shot and killed by members of a Scots Guard patrol in the village of Batang Kali in Selangor. At the relevant time Selangor was a British Protected State in the Federation of Malaya. The applicants, who are all close relatives of one or more of the victims, believe that the killings amounted to unjustified murder and seek to challenge the refusal of the United Kingdom authorities to hold a public inquiry into the events of 11 and 12 December 1948.

1. Background

In 1948 the country which is now Malaysia was part of the British Empire. Shortly after the end of the Second World War, there was a communist insurgency which became known as the “Malayan Emergency”. Several British planters and businessmen were killed and there were violent incidents in a number of states, including Selangor. The High Commissioner declared a state of emergency on 12 July 1948 and United Kingdom ministers agreed to send a brigade of the British Army to Malaya by the end of August that same year. Troops, including the Second Battalion of the Scots Guards, arrived in Singapore in October 1948. After three weeks of training, they were sent to areas where “bandit activity” had been reported.

2. The events at Batang Kali

The village of Batang Kali was within a rubber plantation owned by a Scotsman and most of the villagers, who were Chinese Malay, worked on his estate.

In or around 11 December 1948 the senior police officer for the district asked Captain R. of the Second Battalion of the Scots Guards to send two patrols to two separate areas to ambush a party of insurgents expected to arrive the following day.

Early in the evening of 11 December 1948 a patrol led by Lance Sergeant D and Sergeant H, accompanied by a Malay Special Constable (“Special Constable JbT”) and two Malay police officers (“Detective Sergeant G” and “Detective Constable W”), took control of the village of Batang Kali.

In the course of the domestic proceedings, then key facts were identified which “could not be the subject of serious doubt”.

 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.On the way to the village the patrol pursued two uniformed armed insurgents, but lost them.A young man was shot dead by the patrol in the village on the evening of 11 December 1948; he was said to be LKL (the uncle of the second applicant).The inhabitants were separated by the patrol as between (1) men and (2) women and children. They were detained in kongsi huts in the village.Interrogation of the inhabitants took place. There were simulated executions to frighten them, causing trauma.The police officers secured information from one of the males (“CH” – the first applicant’s father) about armed insurgents who occasionally visited the village to obtain food and supplies. This information was passed to the patrol.A lorry arrived in the morning. It was searched. The “kepala” or headman (“LTS” – the father of the third applicant) was detained. Rice was found.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 the village.The hut with twenty-three men was unlocked. Within minutes all of the twenty-three men were dead as a result of being shot by the patrol.The inhabitants’ huts were then burned down and the patrol returned to its base.

3. The immediate aftermath

On 13 December 1948 a telegram was sent by the High Commissioner to the Colonial Office stating that “26 bandits have been shot and killed by police and military in the Huala Kubu area of Selangor” and that one “bandit” had been wounded and captured.

Also on 13 December 1948, a journalist working for The Straits Times interviewed Lance Sergeant D at the patrol’s base. Lance Sergeant D stated that all of those shot on 11 and 12 December 1948 had been trying to escape. He also stated that a “large quantity of ammunition had been found under a mattress”. This account was published in The Straits Times and on 17 December 1948 the General Officer Commanding Malaya (“Major General Sir C B”) told a press conference that this was an “extremely accurate” description of what had occurred.

A Far-Eastern Land Forces British Army report was compiled on 17 December 1948. In relation to the incident in question it noted that a patrol had “captured 26 male bandits” who had been “detained for a night in kongsi huts” and that, following a successful ambush of a lorry, the “bandits attempted mass escape. 25 killed. One recaptured”. This account was repeated in the official War Office Report of 22 December 1948, which further described the incident as a “very successful action”.

4. The investigation by the Attorney-General of the Federation

The families of the deceased appealed for help to various organisations. In addition, reports appeared in the Chinese press that there had been a massacre and the Chinese Consul-General requested an inquiry, suggesting that the killings had been unjustified since all the deceased were unarmed. Furthermore, the owner of the rubber plantation publicly stated that those killed had been his employees, that they had records of good conduct, and that there had been no strikes or other problems. On 24 December 1948 The Straits Times called for an inquiry.

An investigation was subsequently conducted by the Attorney-General of the Federation (“SFS”) and a Federal Counsel, which, according to the Supreme Court, took “a matter of days”. The file relating to this investigation was destroyed in 1996; however, SFS spoke to the Metropolitan Police and to a BBC news programme in 1970, indicating that statements (not on oath) had been taken from each member of the patrol and from CH, the only surviving male from the village. Furthermore, he had visited the scene, met the Malayan officers, examined the burned down huts, and found shell-cases that had exploded during the fire and which were illegally there. The police officers told him that they had believed the detained men to be bandits and, when taken for interrogation, the men had tried to escape, which caused the patrol to open fire. SFS indicated that he was “absolutely satisfied a bona fide mistake had been made” and that “there had not been anything that would have justified criminal proceedings”. However, no inquiries had been made from the villagers in Batang Kali “for a very good reason, because they were most unlikely to talk and, if they did talk, to tell the truth”.

Following the investigation SFS reported his findings to the High Commissioner. On 1 January 1949 the High Commissioner sent a telegram to the Colonial Office, indicating that the soldiers “did everything that it was possible for them to do to stop the escaping Chinese before resorting to force ... [f]urthermore although some of the killed were rubber tappers it is our experience that such persons are frequently rubber tappers part time and bandits the rest of the time and that their arms are normally hidden in the neighbourhood and not found with them”.

A further document from the High Commission was released to the local press on 3 January 1949 and published the following day in The Straits Times and The Times of London. It explained in some detail how the Chinese men had been shot as a matter of last resort – and following a number of verbal warnings – during a “pre-arranged” escape attempt.

At a press conference on 5 January 1949 the Chief Secretary of the Federation of Malaya stated that he had “no doubt at all that these men made an attempt to escape from legal custody, and having made that attempt they had to stand the consequences”.

On 26 January 1949 the Colonial Secretary gave a written answer to a Parliamentary question about the incident, which indicated that following an investigation SFS was satisfied that, had the soldiers not opened fire, the men would have made a good attempt at escape “which had been obviously pre-arranged”.

Demands for a public inquiry by a High Court Judge were rejected.

5. The coming into force of the European Convention on Human Rights

The European Convention on Human Rights came into force for the United Kingdom on 3 September 1953 and was extended to the Federation of Malaya on 23 October 1953.

6. Malaysian independence

On 31 August 1957 Malaysia gained its independence. The arrangements for this were made by the Federation of Malaya Independence Act 1957 and the Federation of Malaya Order in Council 1957. The Order in Council gave effect to the Constitution of the Federation of Malaya, Article 167(1) of which provided that “all rights liabilities and obligations of Her Majesty” ... “shall on or after [31 August 1957] be the rights liabilities and obligations of the Independent Federation”.

On independence, the United Kingdom’s notification declaring that the European Convention on Human Rights applied to the Federation of Malaya as a territory for whose international relations it was responsible was withdrawn.

7. The right of individual petition

On 14 January 1966 the United Kingdom granted the right of individual petition in the following terms:

“On instruction from her Majesty’s Principal Secretary of State for Foreign Affairs, I have the honour to declare in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4 of November 1950, that the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only and not, pending further notification, in respect of any other territory for the international relations of which the Government of the United Kingdom are responsible, for the period beginning on the 14 of January 1966, and ending on the 13 of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe subsequently to the 13 of January 1966, by any person, non‑governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13 of January 1966, to be victim of a violation of the rights set forth in that Convention and in the Protocol thereto which was opened for signature at Paris on the 20 of March 1952.

This declaration does not extend to petitions in relation to anything done or occurring in any territory in respect of which the competence of the European Commission of Human Rights to receive petitions has not been recognised by the Government of the United Kingdom or to petitions in relation to anything done or occurring in the United Kingdom in respect of such a territory or of matters arising there.

On instructions from Her Majesty’s Principal Secretary of State for Foreign Affairs, I have the honour to declare in accordance with the provision of Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4th November 1950 [see Article 34 of the Convention since the entry into force of Protocol No. 11], that the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland and not, pending further notification, in respect of any other territory for the international relation of which the Government of the United Kingdom are responsible, for the period beginning on the 14th of January 1966,and ending on the 13th of January, 1969, the jurisdiction of the European Court of Human Rights as compulsory ipso facto and without special agreement, on condition of reciprocity, in all matters arising subsequently to the 13th of January 1966, concerning the interpretation and application of that Convention and the Protocol thereto which was opened for signature at Paris on the 20th of March 1952.

This declaration does not extend to case concerning anything done or occurring in any territory in respect of which the jurisdiction of the European Court of Human Rights has not been recognised by the Government of the United Kingdom or concerning anything done or occurring in the United Kingdom in respect of such a territory or of matters arising there.”

8. The 1970 investigation

In late 1969 one of the Scots Guardsmen (“WG”) provided a sworn statement to The People newspaper which indicated that the victims at Batang Kali had been massacred in cold blood. Sworn affidavits were thereafter taken from three other guardsmen (“AT”, “RB” and “VR”). They all alleged that the deceased had been massacred on the orders of the two sergeants on patrol, and some further suggested that the sergeants had ordered them to say (falsely) that the men had been shot while trying to escape. A further guardsman (“GK”) did not provide a statement but told The People that the killings were “sheer bloody murder ... these people were shot down in cold blood. They were not running away. There was no reason to shoot them”.

Lance Sergeant D and Sergeant H were also interviewed. However, they reiterated the account given in 1948, namely that all of those shot on 11 and 12 December 1948 had been trying to escape.

A reporter from The People also interviewed CH, who stated that the men had been divided into groups and shot. They had not been attempting to escape. The Strait Times had also interviewed Special Constable JbT who said that, shortly before the killings, one of the sergeants told him not to look at the male detainees. After he turned his back, he heard a burst of gunfire and when he turned round he saw dead bodies everywhere. The sergeant told him that he would be jailed if he breathed a word of what had happened.

The Government subsequently issued a press statement indicating that it was taking the matter very seriously. An internal memoranda noted that while a three-year limitation period precluded prosecution under the Army Act 1881, prosecutions in the civilian courts remained a possibility. The note further indicated that a decision should first be taken on whether to institute criminal proceedings before the Government could resolve whether to hold an inquiry.

Pursuant to advice from a prosecution lawyer received on 27 February 1970, the Attorney General and the Director of Public Prosecutions (“DPP”) agreed that the Metropolitan Police should investigate the events at Batang Kali on 11 and 12 December 1948. It was proposed that the investigation would include interviews with all the guardsmen, the Malay police officers who accompanied the patrol, the interpreter, and CH, who was the sole survivor. Lance Sergeant D and Sergeant H were to be interviewed last. On 18 March 1970 the DPP informed the Ministry of Defence that he would extend the investigation beyond the United Kingdom if he considered this to be a necessary step.

Four guardsmen (WC, AT, RB and GK) were subsequently interviewed under caution. Each admitted that Sergeant H had ordered them to shoot the men – none of whom had attempted to escape – as suspected bandits or sympathisers. A further guardsman (“KW”) also admitted that the men had been murdered. VR did not answer the officers’ questions, but did not withdraw his earlier admission of murder. In addition, RB and GK claimed that they had been instructed by the army falsely to claim that the men had been trying to escape. However, two Lance Corporals stated that the men had been shot while trying to escape. The sergeants were not interviewed.

The police also interviewed the two reporters. Their methods were criticised by the police: WC had been paid GBP 1,500 for his initial statement to The People and it seemed that the journalists might have given the guardsmen incorrect information concerning the possibility of a prosecution.

By the spring of 1970 the High Commissioner in Kuala Lumpur and the Foreign and Commonwealth Office (“FCO”) were expressing concern about “political difficulties” and the risk that the investigation could “revive local feeling”. In a letter to the FCO, the High Commissioner expressed concerns that an investigation in Malaysia “would be given close and embarrassing attention” and in any event he expressed doubts about whether the villagers’ recollection of the incident could be accurate after twenty-two years. The FCO subsequently wrote to the DPP, referring to the likely publicity the arrival of a police team in Malaysia would attract, and expressing doubt about the reliability of any evidence that would be given, in view both of the passage of time and the possible incentive of compensation.

On 12 June 1970 the DPP was provided with a minute by one of his officials. The minute indicated that on the evidence there was no prospect of criminal proceedings. However, as there were five persons who said “this was murder”, inquiries would have to be pursued in Malaysia, otherwise the Government would lay itself open to attack by newspapers and “the anti‑military brigade”. The DPP endorsed the minute but noted that “[p]erhaps however the Malaysian Government will refuse entry to the investigating team, which will save any further expenditure of time and money on this unrealistic inquiry”.

A general election took place on 18 June 1970. Following the election the new Attorney General met with the DPP and indicated that as it was unlikely that sufficient evidence would be obtained to support a prosecution the investigation should go no further. This decision was communicated to the Ministry of Defence on 29 June 1970.

On 30 July 1970 the police produced a report on the investigation. It concluded that the matter was “politically flavoured” and it was “patently clear that the decision to terminate inquiries in the middle of the investigation was due to a political change of view when the new Conservative Government came into office after the General Election of 18 June 1970”.

Meanwhile, the Ministry of Defence decided not to hold an inquiry into the killings.

9. The Malaysian investigation in 1993/4

On 9 September 1992 the BBC broadcast a documentary about the Batang Kali killings entitled “In Cold Blood”. The documentary included interviews with CH and other persons either related to the victims or who were present at the time the relevant events occurred. This was the first time many of them had been interviewed. Although the guardsmen did not appear it was said that they stood by their statements made in 1970.

Following the broadcast, the Crown Prosecution Service (“CPS”) reviewed whether any further steps should be taken. In a draft note of the review, dated 26 March 1993, a representative of the CPS War Crimes Unit observed that “in 1970 there probably were a number of people with relevant information to give if the police had gone to Malaysia ... I do not consider that it would be fair to say that all the surviving villagers were inherently unreliable. It seems to me that they were never given an official opportunity to tell their side of the story due to fear of what they would say”. Nevertheless, he indicated that it would be “pointless” to re-open the investigation, because if anyone was charged he would have an unassailable abuse of process argument so as to avoid conviction, on account both of the long and prejudicial delay, and the termination of inquiries in 1970. It would appear that no consideration was given to holding an inquiry rather than pursuing a criminal prosecution.

On 8 July 1993 CH and the wife of one of the deceased presented a petition to the Queen requesting that the British Government reopen the investigations, prosecute those responsible for the deaths and pay compensation. By April 1994 the petition had been submitted to the Palace with a draft response which was essentially “non-committal”. No formal response was ever issued.

On 14 July 1993 the Royal Malaysian Police had begun an investigation into the killings following a report by three surviving family members, including the first applicant’s parents. They took statements from relatives of the deceased and persons who had been in the village at the time of the killings. A report dated 31 May 1995 concluded that further inquiries were necessary, including taking statements from the guardsmen and obtaining the views of the Chief Pathologist on the possibility of examining the bodies. A request was made through Interpol for British help; this included a request for the names of the guardsmen on patrol. The names were provided on 31 July 1996. Addresses were subsequently sought by the Royal Malaysian police, but do not appear to have been supplied. Officers involved in the investigation had also planned to visit the United Kingdom to pursue their inquiries there, but this did not take place.

The Royal Malaysia Police file was closed on 30 December 1997, apparently on the basis that there was sufficient evidence to charge anyone.

10. Events occurring between 2008 and 2010

In 2008 a campaign group called the Action Committee Condemning the Batang Kali Massacre was formed. On 25 March 2008 it sent a second petition to the Queen, seeking an apology and compensation. In October, the applicants’ solicitors wrote to the Secretary of State for the Foreign and Commonwealth Office requesting a response to the petition.

A supplementary petition was presented on 12 December 2008 seeking additional relief in the form of a public inquiry. On 21 January 2009 the High Commissioner responded, indicating that in view of the findings of the two previous investigations that there was insufficient evidence to pursue prosecutions, and in the absence of new evidence, there was no reason to start a fresh investigation. However, this response was later withdrawn following receipt of pre-action correspondence from the applicants’ solicitors, in which they asked for a public inquiry with the remit to determine the reasons for the killings, identify the lessons to be learned, and the power to make recommendations as to redress.

The Secretaries of State for the Foreign and Commonwealth Office and for Defence instructed a barrister to review the available materials. Following this review, on 21 August 2009 the applicants’ solicitors were sent a provisional decision refusing to establish an inquiry or investigate. They were invited to comment on this decision. In their reply of 3 September 2010 they advanced a new argument, namely that, even if the killings had been carried out to prevent the prisoners escaping, this was contrary to the domestic law of Malaysia as it stood at the relevant time. In addition, they submitted copies of a book which had just been published about the killings (“Slaughter and Deception at Batang Kali” by Ian Ward, the former Daily Telegraph War Correspondent, and Norma Miraflor); material from the 1993-1997 Royal Malaysia Police file which the British authorities had not previously seen; and the opinion of an archaeologist from the Centre of Anatomy and Human Identification at the University of Dundee as to the prospects of disinterment revealing new evidence and the extent of the process that would be required.

On 29 November 2010 the Treasury Solicitor informed the applicants’ solicitor of the decision of the Secretaries of State to refuse to hold an inquiry into the killings, since the recognition of a duty to either make reparation or commence an investigation would have been contrary to, or would have undermined, the following legal rules: the status of Selangor as a protected State and separate legal entity from the United Kingdom; the arrangements for the succession of the liabilities of Selangor; the statutory limitation periods applicable to tort claims in England and Wales; and the retrospectivity provisions of the Human Rights Act 1998.

11. The decision of the Divisional Court

Proceedings were issued on 25 February 2011 and permission was granted on 31 August 2011. On 24 October 2011 a further submission was made by officials to the Secretaries of State to the effect that the inadequacy of the previous investigations and the need to investigate their inadequacy was a further consideration to be taken into account in deciding whether there should be a public inquiry. However, on 4 November 2011 the Secretaries of State affirmed their decision not to hold an inquiry.

The Divisional Court of the Queen’s Bench Division gave judgment on 4 September 2012. The court considered first, whether there was a legal duty to hold an inquiry, and secondly, whether there were any grounds to challenge the exercise of discretion by the Secretaries of State in determining that an inquiry would not be held.

With regard to the question of whether a legal duty existed, the applicants had argued that the authorities were obliged to hold an inquiry either under the common law after the incorporation of customary international law or by virtue of Article 2 of the Convention. The Divisional Court considered itself bound by Re McKerr [2004] UKHK 12, in which the House of Lords held that there was no common law right to an inquiry into a death. Consequently, it could not consider whether a common law duty arose through incorporation of customary international law. In any case, the court found that no such duty could have existed under customary international law in 1948.

The court further held that there had been no Article 2 duty to hold an inquiry since, following Re McKerr (cited above) and Re McCaughey [2011] UKSC 20, there was no obligation to conduct an inquiry into a death which occurred prior to the coming into force of the Human Rights Act 1998 in October 2000. Although the court had regard to Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009 and Janowiec and Others v. Russia, nos. 55508/07 and 29520/09, 16 April 2012, it considered itself bound by Re Kerr and Re McCaughey. It noted, however, that if a procedural obligation had applied by reason of the proximity of the deaths to the date of the United Kingdom’s accession to the Convention, the most significant material breach occurred in 1970, when evidence emerged to suggest that the deaths had been the result of deliberate executions.

In light of the above conclusions, the court did not consider it necessary to decide whether the events fell within the territorial scope of the United Kingdom. It did, however, accept that the patrol had physical control over the twenty-four men who were shot dead and, as a matter of State responsibility, the killings were – and remained – the legal responsibility of the Government of the United Kingdom. In reaching this conclusion, they rejected the submission of the Secretaries of State that responsibility had been transferred to the Federation of Malaya after it was granted independence on 31 August 1957.

Finally, the court held that the exercise of discretion by the Secretaries of State in deciding not to hold an inquiry could not be impugned. They had taken the relevant considerations into account and their decision was not unreasonable. They had had regard to the relevant factors and reached a conclusion which it had plainly been open to them to reach.

12. The decision of the Court of Appeal

In a judgment dated 19 March 2014 the Court of Appeal affirmed the Divisional Court’s decision. Having regard to Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, ECHR 2013, it found that the “critical date” had been either September 1953, when the United Kingdom ratified the Convention, or 23 October 1953, when it was extended to the Federation of Malaya. Prior to the “critical date” the only relevant act was the investigation in 1948 – 1949, which the court considered to have been “woefully inadequate”. The court further observed:

“Whilst developments since our critical date have been intermittent, they have yielded material which, to put it at its lowest, may cast doubt on the original account. The confessions which arose in 1969-1970 were of potential significance and remain so, not least because the investigation within which they emerged was brought to an abrupt halt. They have never been tested or discredited. The sum of knowledge has been significantly increased by the work of the Royal Malaysian Police twenty years ago but they were unable to secure meaningful co-operation from the United Kingdom authorities. Importantly, significant material from the Metropolitan Police in the 1970s and a considerable amount of potentially relevant material accumulated during the Royal Malaysian Police investigation in the 1990s has only come to the notice of the appellants in the course of, and as a result of, these proceedings. It includes statements made many years later by some of the children who were at Batang Kali at the time of the shootings. It is not suggested that the material which has emerged since the critical date and which, if true, discredits the official version is all inherently incredible. The fact is that it has never been tested independently. Nor has it been brought together for a singular independent assessment. Moreover, there is reason to suppose that, even now, it could be supplemented by significant pathological expert evidence following exhumation. Professor [S.B.] of the University of Dundee has so opined.”

In light of the above findings, the court considered it probable that this Court would find the “genuine connection” test to have been satisfied. It further considered that, in light of Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011, this Court would conclude that the case fell within the territorial ambit of Article 2. Furthermore, it saw no basis on which it could be concluded that any accountability or liability had passed from the Crown upon the establishment of the independent Federation of Malaya in 1957. Nevertheless, the court agreed with the Divisional Court that Re McKerr was still binding and any attempt to move away from that judgment was a matter for the Supreme Court.

With regard to the remaining submissions, the Court of Appeal also agreed with the Divisional Court that in 1948 customary international law had not imposed an obligation of the kind contended for, and that the exercise of discretion by the Secretaries of State could not be impugned since they had considered everything they were required to consider; had not had regard to any irrelevant considerations; and had reached rational decisions which were open to them.

13. The decision of the Supreme Court

The applicants appealed to the Supreme Court, which dismissed their appeal in a judgment handed down on 25 November 2015.

(a) Article 2 of the Convention

In respect of Article 2 of the Convention, the respondents argued that the applicants’ claim was barred because the killings occurred before the Convention came into existence and before the Human Rights Act 1998 came into force. In the alternative, they argued that proceedings had been brought too late, since the Article 2 right to seek an inquiry was time-barred.

(i) Territorial jurisdiction

With regard to the question of territorial jurisdiction, the Supreme Court Justices identified two questions: could the United Kingdom be held responsible for what happened in Batang Kali in 1948; and could it be held responsible for not holding an inquiry now?

Lord Mance, with whom the other Justices agreed, found that although the Crown had not been sovereign in Malaya, it had exercised powers in respect of external affairs, defence and the deployment of the British Army. Those powers were given to the King wearing the Crown of, and acting in the interests of, the United Kingdom. Furthermore, while on active service in Malaya, the Scots Guards remained His Majesty’s forces and under the command of the Crown; there was no question of secondment to any other authority. Those who died were therefore at the time within the British Army’s control, and would continue to be so, even if they were fired on as they were attempting to escape. This control, together with the notification in 1953 that the Convention had been extended to the Malayan Federation, meant that the deaths in December 1948 would have occurred in circumstances within the United Kingdom’s jurisdiction, within the meaning of Article 1 of the Convention, had it been in force in Malaya in 1948.

Moreover, after the grant of independence in 1957, such liabilities and obligations as passed to the Federation of Malaya did not, as a matter of domestic or international law, include an obligation in respect of the deaths so as to relieve the United Kingdom of its own investigative obligation. There was therefore no jurisdictional obstacle to the court ordering the holding of an inquiry into the deaths.

In respect of the revival of the independent duty to hold an inquiry, Lord Mance did not consider that the beneficiaries of the inquiry had to be within the jurisdiction when the inquiry was sought; rather, the focus was on whether the inquiry related to an incident involving someone within the United Kingdom’s jurisdiction.

(ii) Temporal jurisdiction

Lord Neuberger, with whom Lords Mance and Hughes agreed, considered that the first criteria in Janowiec had been met, since the applicants had a powerful case for saying that there had been relevant “acts” and “omissions” after the critical date: prior to 1970, there had been no full or public investigation into the killings; until 1969, there had been no publicly available evidence from any member of the patrol to suggest that the killings had been unlawful; the evidence which came to light in 1969/70 clearly suggested that the killings were unlawful; and that evidence appeared to be “weighty and compelling”, although by no means conclusive. However, he considered that the second criterial in Janowiec – the requirement that there be a “genuine connection” between the death and the critical date – could not be met since the killings had occurred significantly more than ten years before the “critical date”. Relying in particular on Šilih (cited above, § 140), Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 133, ECHR 2009, Çakir v. Cyprus (dec.), no. 7864/06, 29 April 2010, Jelić v. Croatia, no. 57856/11, § 55, 12 June 2014, he found that the “critical date” had been 13 January 1966, the date on which the United Kingdom had recognised the right of every citizen to petition this Court in relation to alleged infringements of their Convention rights. He considered that this conclusion was also supported by logic, since one would expect the “critical date” to be linked to the date on which the Convention could first be invoked.

Having reached this conclusion, Lord Neuberger left open the question whether, if this Court would have held that the applicants had been entitled to seek an investigation under Article 2, the national courts would have been bound to order an inquiry pursuant to the Human Rights Act 1998.

Lord Kerr, however, could not discern any clear or constant line of jurisprudence emerging from this Court which would support the notion that its temporal jurisdiction did not come into existence until 1966. On one hand, he recognised the force of the point made by Lord Neuberger that the “critical date” should be linked to the date on which this Court was invested with the jurisdiction by a Convention State to entertain personal petitions from that State’s citizens; however, on the other hand he noted that from the date of entry into force of the Convention in a Convention State, the duty to abide by the terms of the Convention was enforceable by other Convention States and it might be regarded as anomalous that the individual affected by the alleged violation should not have the right to enforce his or her right while another State could apply to the Court for redress. He therefore considered that whichever of the alternatives was chosen, it was not to be regarded as an “immutable point” from which no departure could be made. In other words, if this Court was willing to contemplate a backward reach of up to ten years between the triggering event and the “critical date”, might it not also be prepared to back-date the reach of the Convention to the date of its entry into force in a particular Convention State?

Nevertheless, although Lord Kerr declined to reach any firm conclusion on the question of temporal jurisdiction under the Human Rights Act 1998, he concluded that on the facts of the present case it could not be extended to cover the some fifty-two years from the date of coming into force of that Act and the killings in 1948.

Baroness Hale considered that logic pointed strongly in favour of the “critical date” being the date of entry into force of the Convention, since from that date onwards any other Convention State could have taken the United Kingdom before this Court for an alleged violation, without any requirement that that State first be a “victim”. It was therefore difficult to see why the additional possibility of being taken to the Court by an individual victim should make any difference to the United Kingdom’s obligations in international law.

(iii) “out of time”

Lord Neuberger, with whom Lords Mance and Hughes agreed, rejected the applicants’ assertion that there had been events occurring after 1970 which would have permitted the Article 2 right to an investigation into the killings to be revived. Although he accepted that the documentary “In Cold Blood” and the book “Slaughter and Deception at Batang Kali” each contained some new evidence, neither added anything significant to the basic point, which had become apparent in 1970, that there were considerable reasons for doubting that the Government’s official line on the killings was correct.

Lord Kerr, for his part, indicated that had a link to the triggering event been established, he would have found that the duty to conduct an Article 2 compliant investigation had been revived in or around 2009. Following Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, he did not consider that the “new material” had to take the form of “hard evidence”; allegations, provided that they were credible and had potential to undermine earlier findings, or a reassessment of already existing evidence, would also be sufficient. In this regard, he observed that as late as 2009 the Government of the United Kingdom was maintaining a stance that there was nothing to challenge, much less gainsay the original, official version of the killings. The applicants could not be faulted for accepting that assertion and it could not be said that nothing new subsequently emerged to warrant a decision to no longer accept the Government’s claim. In fact, a number of new developments had taken place after January 2009. In particular, Lord Kerr noted that

“In June 2009 the book ‘Slaughter and Deception’ was published. Lord Neuberger has said that this did not contain much new revelatory evidence. That depends on how one views the state of the evidence and the attitude that might reasonably have been taken to it before publication. If a decision to accept the government’s steadfast denials of the need for an inquiry could not be condemned, it is difficult to see how the appellants’ failure to challenge them can be faulted. The least that ‘Slaughter and Deception’ did was to collate material from various sources which supported the appellants’ case that the government’s claim that no further inquiry was necessary could not be sustained.

Significantly, at a meeting held on 3 July 2009 and attended by members of the Batang Kali action committee with their lawyers and representatives of the Ministry of Defence and the Foreign and Commonwealth Office, it was disclosed that the government was reconsidering the January 2009 decision not to hold a further inquiry. This is significant in two aspects. First, it indicates that the government believed that there was new material which called for fresh consideration. Secondly, it sounds on the reasonableness of the stance of the appellants in failing to take action to challenge the decision not to hold a new inquiry.

Lord Neuberger has said that in 1970 there were already considerable reasons for doubting whether the official United Kingdom Government line on the killings was correct, and that there were strong grounds which suggested that the killings were unlawful (para 107 above). This assessment is very much a matter of individual judgment and it is not easy to avoid the influence of hindsight in making it. In any event, it must be set against the statement in Parliament by a senior member of the government, the Attorney General, endorsing what he implied was an independent decision of the Director of Public Prosecutions ‘not to ask the police to pursue the inquiry’ into the killings. In fact, as the report of Detective Superintendent Williams revealed, he was of the view that this decision was one secured by ‘a political change of view’. This did not come to the attention of the appellants until 2009. Thereafter, the government was considering the representations made by the appellants as to whether a new inquiry would be held. It has not been suggested (nor could it be) that the appellants should have challenged the failure to hold an inquiry before the outcome of the government’s deliberations was known nor that they failed to act with sufficient speed after it was disclosed to them.”

Baroness Hale indicated that the applicants “might well have been able to complain to the Strasbourg court after the 1970 investigation was abandoned” but considered that it was “now far too late for them to do that. The time limit for complaining to Strasbourg is long gone”. However, in considering whether new material had come to light following the entry into force of the Human Rights Act 1998, like Lord Kerr, she found this issue more difficult to resolve than Lord Neuberger did. Clearly the soldiers’ confessions in 1969/70 were significant new material which cast doubt on the effectiveness of the original inquiry and were sufficient to revive the obligation to investigate. She also considered it possible that the results of the Malaysian Police inquiries in the 1990s produced sufficient new material to revive the obligation. However, the investigations in 1970 and in the 1990s were two separate investigations, “each of one half of the picture only”. They were only properly brought together with the publication of “Slaughter and Deception at Batang Kali” in June 2009. She therefore accepted that the publication of the book and the access gained to the Metropolitan and Royal Malaysian Police files “cast an entirely new light on the decision not to hold an inquiry”.

(iv) Inquiries carried out for the purpose of “establishing a historical truth”

Having accepted that the killings took place less that ten years before the “critical date” and that significant new material had recently come to light, Baroness Hale indicated that she would nevertheless reject the claim under the Human Rights Act 1998 since in Janowiec the Court had observed that the “procedural acts” which ought to have taken place after the entry into force of the Convention had to have been undertaken in the framework of civil, criminal, administrative or disciplinary proceedings capable of leading to the identification and punishment of those responsible or to an award of compensation. Although the applicants were seeking reparation, this was not by way of a civil action, which would have become time-barred long ago, and not from the actual perpetrators. Furthermore, it was quite unrealistic to expect that anyone could now be prosecuted. Consequently, what the applicants really wanted was a proper, full and fair inquiry to establish the truth of what happened, vindicate their relatives and lead to a retraction of the official account of what took place, but the Court in Janowiec had expressly excluded such inquiries from the definition of “procedural acts”.

Lord Neuberger, with whom Lords Mance and Hughes agreed, also referred to the same paragraph in Janowiec and considered there to be “obvious force” in the point that any inquiry into events in 1948 must “at least to a substantial extent be to establish the truth, and it is unlikely that any ‘criminal, civil, administrative or disciplinary proceedings’” would result even if the killings were found to have amounted to a war crime.

(b) Customary international law

The Justices agreed that customary international law, through the medium of the common law, did not require the United Kingdom Government to hold an inquiry into the killings.

(c) The common law

Lords Neuberger, Mance, Kerr and Hughes agreed that, applying traditional principles of judicial review, the Secretaries of State in the exercise of their discretion had considered the request for an inquiry seriously and rejected it for defensible reasons which cumulatively rendered their decision impossible to stigmatise as unreasonable or irrational; and that this claim should also be dismissed. Baroness Hale (dissenting) would have allowed the appeal on this ground as she considered that the Secretaries of State had not taken into account all the purposes and benefits of an inquiry and she therefore considered that their decision was not one which a reasonable authority could reach.

B. Relevant domestic law and practice

The Human Rights Act 1998 came into force on 2 October 2000. Its aim was to give effect under domestic law to the rights and freedoms enshrined in the European Convention on Human Rights. Pursuant to section 6, it is unlawful for a public authority to act in a way which is incompatible with the Convention.

In Re McKerr [2004] UKHL 12 concerned a complaint about an investigation into deaths which had occurred in 1982. An inquest had been opened in 1984 but abandoned in 1994. Around this time, a surviving relative complained to this Court, which found a violation of the procedural limb of Article 2 on account of shortcomings in the investigation (McKerr v. the United Kingdom, no. 28883/95, ECHR 2001‑III). In June 2002 judicial review proceedings were commenced before the national courts complaining about the continued failure to provide an Article 2 compliant investigation. Reliance was placed on section 6 of the Human Rights Act 1998. However, the House of Lords unanimously refused to apply the 1998 Act to deaths which had occurred before 2 October 2000. In particular, Lord Nicholls of Birkenhead noted that Parliament had chosen not to give the 1998 Act retrospective effect and therefore in relation to Article 2 its intention was not to create an investigative right in respect of deaths occurring before the Act came into force.

In Re McCaughey [2011] UKSC 20 was decided after the Grand Chamber judgment in Šilih but before the Grand Chamber judgment in Janowiec. It concerned an investigation into the fatal shooting of two men by soldiers in the British Army in 1990. In 1993 the Director of Public Prosecutions had decided not to prosecute the soldiers. In 1994 papers had been passed to a coroner but he only received all the documents in 2002. At a preliminary hearing of an inquest in 2009, an issue arose about whether, following the Grand Chamber judgment in Šilih, the inquest had to comply with the procedural requirements of Article 2. Having regard to Šilih, the Supreme Court answered this question in the affirmative.

COMPLAINT

The applicants complain that there has been a breach of the procedural obligation under Article 2 of the Convention to conduct an independent investigation into the deaths of the twenty-four men at Batang Kali between 11 and 12 December 1948.

QUESTIONS TO THE PARTIES

1. Is the applicants’ complaint capable of engaging the procedural obligation under Article 2 in the sense of enabling steps to be “undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation for the injured party” (Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 142-144, ECHR 2013)?

2. If so, having regard to the Court’s jurisprudence under the procedural limb of Article 2 of the Convention, was there a “genuine connection” between the” triggering event” and “the critical date”? In light of Janowiec, can there ever be a procedural obligation on a State to investigate events which occurred before the Convention came into existence?

3. If “new material” came to light after the “critical date” which was sufficient to revive the procedural obligation under Article 2 of the Convention, when did it come to light? Has the applicants’ complaint been lodged within the six-month time-limit as required by Article 35 § 1 of the Convention?

4. Does the applicants’ complaint fall within the territorial jurisdiction of the United Kingdom within the meaning of Article 1 of the Convention? In this regard, is it of relevance that the 1966 declaration granting the right of individual petition was expressly limited to the territory of Great Britain and Northern Ireland and excluded “any other territory for the international relations of which the Government of the United Kingdom are responsible”?

APpENDIX

LIST OF APPLICANTS

 Nyok Keyu Chong, born on 7 November 1961, is a Malaysian national who lives in Selangor and is represented by Bindmans LLP.

 Ah Choi Loh Kon Fook Loh, born on 14 June 1941, is a Malaysian national who lives in Selangor and is represented by Bindmans LLP.

 Kok Lim, born on 24 March 1939, is a Malaysian national who lives in Kuala Lumpur and is represented by Bindmans LLP.

 Kum Thai Wooi, born on 30 June 1942, is a Malaysian national who lives in Pahang and is represented by Bindmans LLP.

 Ah Yin Lim, born on 12 December 1937, is a Malaysian national who lives in Johor Bahru and is represented by Bindmans LLP.

 

Full & Egal Universal Law Academy