R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lady Hale,Lord Mance,Lord Neuberger,Lord Kerr |
| Judgment Date | 25 November 2015 |
| Neutral Citation | [2015] UKSC 69 |
| Date | 25 November 2015 |
| Court | Supreme Court |
[2015] UKSC 69
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Hughes
Appellants
Michael Fordham QC
Danny Friedman QC
Zachary Douglas QC
(Instructed by Bindmans LLP)
Respondents
Jonathan Crow QC
James Eadie QC
Jason Coppel QC
Marcus Pilgerstorfer Amy Rogers
(Instructed by Government Legal Department)
Intervener (Attorney
General for Northern Ireland Written Submissions Only)
Interveners (The Pat Finucane Centre and Rights Watch UK)
Ben Emmerson QC
Adam Straw
(Instructed by KRW Law LLP)
Heard on 22 and 23 April 2015
The issue raised by this appeal is whether the respondents to this appeal, the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence, are required to hold a public inquiry (or other similar investigation). The inquiry which is sought would relate to a controversial series of events which began on 11 and 12 December 1948, when a Scots Guards patrol shot and killed 24 unarmed civilians in the village of Batang Kali, in Selangor. At that time, Selangor was a British Protected State in the Federation of Malaya, but it is now of course a state within the independent federal constitutional monarchy of Malaysia.
The decision not to hold a public inquiry was taken by the respondents pursuant to section 1(1) of the Inquiries Act 2005 ("the 2005 Act"). That section provides that "[a] minister may cause an inquiry to be held … in relation to a case where it appears to him that" certain conditions are satisfied including "(a) particular events have caused, or are capable of causing, public concern" and "(b) there is public concern that particular events may have occurred".
The appellants, who are closely related to one or more of the victims (and some of whom were children in the village at the time), contend that the killings on 11/12 December 1948 ("the Killings") amounted to unjustified murder, and that the United Kingdom authorities have subsequently wrongly refused to hold a public inquiry, and have sometimes deliberately kept back relevant evidence. The appellants contend that a public inquiry is required on three different grounds. First under article 2 of the European Convention on Human Rights ("the Convention"), which came into force for the United Kingdom on 3 September 1953, and was extended by the United Kingdom under article 56 of the Convention to the Federation of Malaya on 23 October 1953; secondly under the common law by virtue of its incorporation of principles of customary international law; and thirdly under the common law through the medium of judicial review. These three grounds each raise a number of issues, sometimes overlapping. However, there is also a jurisdiction issue, given that the events in question occurred in what was then a different jurisdiction and is now also a wholly independent state.
I will first set out the relevant facts, and after mentioning the jurisdiction issue, I will deal with the three grounds raised by the appellants, taking them in the order in which they have been just set out, which is the same order in which they were raised by Mr Fordham QC in the course of his excellent written and oral arguments on behalf of the appellants.
In the first half of the 20th century, the country which is now Malaysia was part of the British Empire. In 1941, during the course of the Second World War, it was invaded and occupied by the Japanese. It was subsequently re-taken by the British in 1945, the year in which the Second World War ended.
Shortly thereafter, there was an insurgency, which became known as the "Malayan Emergency", and in which members of what had been the communist Malayan People's Anti-Japanese Army took a leading part. Several British planters and businessmen were killed and there were violent incidents within a number of states, including Selangor. In June 1948, the Colonial Secretary approved the use of emergency powers in Malaya, and the High Commissioner declared a state of emergency on 12 July 1948 for the entire Federation, and three days later he issued Emergency Regulations.
United Kingdom ministers agreed to send a brigade of the British army to Malaya by the end of August 1948. The cost was to be borne by the Treasury. Many of the troops sent were national servicemen, with only limited training in relation to operations of this kind. Part of the brigade comprised the Second Battalion of the Scots Guards. They arrived in Singapore in October 1948 and after three weeks training, and they were sent to areas of the Federation where "bandit activity" had been reported. G Company of the Second Battalion was based at Kuala Kubu Bahru where they underwent training for jungle warfare, apparently for the first time.
Batang Kali is located approximately 45 miles northwest of Kuala Lumpur in the district of Ulu Selangor. It was then a village consisting of families who inhabited 'kongsi' residential huts, which are wooden longhouses raised from the ground with a veranda entrance. The village was within a rubber plantation owned by a Scotsman, Thomas Menzies, the chairman of the Selangor Estates' Owners Association, and most of the villagers worked on the estate.
G Company of the Second Battalion of the Scots Guards was based at Kuala Kubu Bahru. The senior police officer for the district asked Captain Ramsey (the second-in-command of the Company) to send patrols to two separate areas, to ambush a party of insurgents expected to arrive the following day. Captain Ramsey commanded one of the patrols, and Lance Sergeant Charles Douglas led the other because there was no other available commissioned officer. Lance Sergeant Thomas Hughes was Douglas's second in command, and the patrol included a Lance Corporal and 11 guardsmen (almost all of whom were undertaking National Service). A Malay Special Constable (Jaffar bin Taib) acted as a guide and they were accompanied by two police officers, Detective Sergeant Gopal and Detective Constable Woh.
Early in the evening of 11 December 1948, the patrol took control of the village. Fifty adult villagers and some children, including two of the appellants, were detained. The villagers, who were a range of ages, were not wearing uniforms and had no weapons. The men were separated from the women and children by the patrol. They were all detained in custody overnight in the kongsi huts. Interrogation of the villagers then took place, and there were simulated executions to frighten them, which caused trauma to some.
A young man was shot dead by the patrol in the village that evening, and he has now been identified as Loh Kit Lin, the uncle of the second appellant.
During the interrogations, the police officers secured information from one of the men, Cheung Hung, the first appellant's father, about armed insurgents who occasionally visited the village to obtain food supplies. This information was passed to the patrol.
On the morning of 12 December, Lim Tian Sui, who was the 'kepala' (village headman), and the father of the third appellant, arrived in the village by lorry, which was searched and found to contain some rice. Lim Tian Sui was detained. The women and children and one traumatised man were then ordered onto the lorry. It was driven a little way from the kongsi huts. Those aboard were guarded by members of the patrol before being driven away from the plantation.
The kongsi hut with 23 men was then unlocked by other members of the patrol. Within minutes all 23 were shot dead by the patrol. The kongsi huts were then burned down. The patrol then returned to its base.
The first known document to describe the Killings was a confidential telegram sent by the High Commissioner, to the Colonial Office on 13 December 1948. It stated that "26 bandits have been shot and killed by police and military in the Kuala 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, Harry Miller, drove to the Scots Guards base at Kuala Kubu Bahru. He interviewed Sergeant Douglas who said that all those shot on 11 and 12 December 1948 had been trying to escape when about to be taken to the company's base for interrogation. He also said that "a large quantity of ammunition had been found under a mattress". This account was published in The Straits Times on 13 December 1948 and, four days later, the General Officer Commanding Malaya, Major General Sir Charles Boucher, stated at a press conference that this was an "extremely accurate" description of what had occurred.
On 17 December 1948, a Far-Eastern Land Forces British Army Report on relevant incidents was compiled setting out the actions that had been taken to combat the insurgency. 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". The official War Office report of 22 December 1948 repeated this summary, and referred to the event as a "very successful action".
This official account was not universally accepted. The families of those killed appealed for help to various organisations and the Chinese Consul-General requested an inquiry, suggesting that the Killings were unjustified given that all the deceased were unarmed. Claims appeared in the Chinese press that there had been a massacre. On 22 December 1948, Mr Menzies...
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