UK government not required to investigate 1948 British army massacre of 24 Malayan villagers

The appeal concerned the decision of the respondentSecretaries of State for Foreign Affairs and Defence to refuse to hold a public inquiry into events which took place while the UK was the colonial power in the former Federation of Malaya – now Malaysia.

The UK government sent troops to the Federation in 1948 in response to an insurgency. On 11-12 December 1948, a patrol of Scots Guards killed 23 unarmed civilians in the village of Batang Kali in Selangor, one of the states of the Federation. The appellants were related to one or more of the victims.

Following the incident, the UK government characterised the events as killings of bandits who had attempted to escape. There were subsequent calls for an investigation and, following statements by participants in the operation that the deceased had been “massacred” on orders and that those killed had not been fleeing, the Metropolitan Police began an investigation in 1969. This investigation was subsequently terminated in 1970. Allegations of unlawful killing resurfaced in 1992 with the broadcast of a BBC documentary. An investigation was started by the Royal Malaysian Police in July 1993 but subsequently closed in 1997.

On 12 December 2008, a campaign group called The Action Committee Condemning the Batang Kali Massacre presented a petition seeking a public inquiry from the British government. The respondents informed the appellants by letter on 29 November 2010 and 4 November 2011 of their decision to refuse to hold an inquiry into the killings.

The appellants applied for judicial review of the refusal to hold a public inquiry, arguing that a public inquiry was required on three different grounds: (i) under Article 2 (right to life) of the European Convention on Human Rights (ECHR); (ii) under the common law by virtue of its incorporation of principles of customary international law; and (iii) under the common law by judicial review of the respondents’ exercise of their discretion under section 1 of the Inquiries Act 2005. The respondents cross-appealed contending that the issues were not within the jurisdiction of the UK courts.

The Supreme Court unanimously rejected the respondents’ jurisdiction argument, but unanimously dismissed the appeal on grounds (i) and (ii) and dismissed the appeal on ground (iii) by a majority of 4-1 – Lady Hale dissented.

Lord Mance gave a judgment, with which the other Justices agreed, holding that the court had jurisdiction; on the three grounds of appeal, Lord Neubergerrejected them in a judgment, with which Lord Mance and Lord Hughesagreed, Lord Kerr gave a concurring judgment, and Lady Hale gave a dissenting judgment.

Northern Ireland’s Attorney General, John Larkin QC (pictured), as well as a number of Northern Irish human rights groups intervened in the case given the precedent it would establish for the investigation into legacy cases from the Troubles.

A number of controversial killings caused by the armed forces and the police in Northern Ireland are still part of ongoing inquests.

In particular, there have been calls for inquiries into the Ballymurphy massacre in August 1971 which saw ten people killed by soldiers in west Belfast as well as alleged collusion between loyalist paramilitaries and the police in mid-Ulster in the 1970s.

Of Batang Kali, Lord Kerr said the “overwhelming preponderance of currently available evidence” indicated that “wholly innocent men were mercilessly murdered.”

He added: “The law has proved itself unable to respond positively to the demand that there be redress for the historical wrong that the appellants so passionately believe has been perpetrated on them and their relatives. That may reflect a deficiency in our system of law. It certainly does not represent any discredit on the honourable crusade that the appellants have pursued.”

Lord Neuberger said: “The desire to discover ‘historical truth’ is understandable, particularly in a case where it involves investigating whether a serious wrong, indeed a war crime, may have been committed. However, not only is this a case where neither article 2 (the right to life under the European Convention On Human Rights) nor customary international law would require such an investigation.

“It is also a case where the has given coherent and relevant reasons for not holding an inquiry, including expressing a justifiable concern that the truth may not be ascertainable, and a justifiable belief that, even if the appellants’ expectations to the contrary were met, there would be little useful that could be learned from an inquiry so far as current actions and policies were concerned.”

While the killings may have been unlawful, Lord Neuberger said they nevertheless occurred a decade before the right of petition to the Strasbourg court was recognised by the UK and imposed a duty to investigate.

John Halford, of Bindmans solicitors, who represented the families of those killed in the massacre said: “On 12 December 1948, British soldiers left the bodies of 24 innocent, unarmed men riddled with bullets and the British government left their families without a credible explanation. Our courts have decided there is no legal right to that explanation. But they have been able to acknowledge the innocence of those killed, the failures to investigate and the ‘overwhelming’ evidence of mass murder.

“Just as importantly, Britain has been found responsible. All of this creates the clearest of moral imperatives on the British government to apologise, withdraw the false account given to Parliament and to compassionately address what has been done, including by funding a memorial. If it does not, the blood of those killed at Batang Kali will indelibly stain the concept of British justice.”

Director of Rights Watch UK, Yasmine Ahmed said: “The outcome of this case has considerable implications in Northern Ireland where many of the deaths that occurred during the Troubles happened before the UK government enacted the Human Rights Act in 1998 … The court today recognised that the UK Government has an obligation to carry out article 2 compliant investigations into Troubles-related deaths in Northern Ireland.”

Darragh Mackin, solicitor with Belfast firm KRW Law which represented a number of Northern Ireland NGOs, said: “Whilst not being a satisfactory result for the relatives of victims of the Batang Kali massacre, the judgment does have an important impact for dealing with historic related murders in this jurisdiction. The court has held that the obligation on the British state to investigate suspicious deaths arises from the date the state granted the right of individual petition, namely 1966.

“This therefore gives rise to an obligation on the British government to undertake human rights compliant investigations into conflict-related incidents, where necessary in order to discharge its duties.”