IN THE COURT OF APPEAL (CIVIL DIVISION) C1 2012/3390
ON APPEAL FROM THE ADMINISTRATIVE COURT
THE QUEEN on the application of
(1) CHONG NYOK KEYU
(in his own right, and as the personal representative of THAM YONG deceased)
(2) LOH AH CHOI
(3) LIM KOK
(4) WOOI KUM THAI
Appellants / Claimants
- and -
(1) SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH AFFAIRS
(2) SECRETARY OF STATE FOR DEFENCE
Respondents / Defendants
APPELLANTS’ SKELETON ARGUMENT
Main Bundle (A1)
Supplementary Bundle (A2)
Better copies and transcripts Bundle (A3)
Authorities for Permission to Appeal Application (A4)
(1) This Skeleton Argument (A1/A/11-45).
(2) Judgment below 4.9.12 (A1/C/1-40) (“Judgment”).
(3) Skeleton Below esp. Pts 1/2 (A1/B/4-89) & Annex 3 (A1/B/153-162).
(4) Consequentials judgment 5.12.12 (A1/C/41-43)
(5) JR Grounds (A1/E/76-100) and Further Grounds (A1/B/163-164).
(6) Defence (A1/E/101-118).
(7) First Decision letter 29.11.10 (A1/F/12-29).
(8) Second Decision letter 4.11.11 (A1/F/37-39).
(9) Moiwana Village v Suriname (A4/1) at §§148-164, 202-208.
(10) Janowiec v Russia (A4/4) at §§112-113, 132-142.
1. This appeal concerns the legality of decisions to take no action to inquire further into the killing of 24 unarmed civilians by British soldiers in December 1948. Those killed were the registered permanent workforce of a British-owned rubber plantation at Batang Kali, Malaya. At least nine of them were in their 50s, two were in their 60s, and one was aged 70. Two of the Appellants were present at Batang Kali as children when the massacre occurred. All are close relatives of the victims. A full dramatis personae is at (A1/B/147-151).
2. The Appellants are supported by the Action Group Condemning the Batang Kali Massacre, a campaign in Malaysia that encompasses 568 separate civil society organisations. As that support indicates, the events of 1948 stand as a hugely significant and unresolved instance of human rights abuse in Malaysia. Public concern about the events has been heightened by what the Divisional Court described as “very serious weaknesses” in the way they were investigated in 1948-1949 (Judgment §147), confessions from six of the soldiers involved that the killings were murder (Judgment §57), the termination of a UK police investigation in 1970, notwithstanding those confessions and the protests of the investigating officers (Judgment §67), and decisions by UK government departments between 1993 and 1997 to withhold cooperation from and delay a Malaysian police investigation (Judgment §157). Despite this, the official account of events, given to Parliament, is that the killings were a lawful and necessary thwarting of an escape attempt. The Divisional Court held that it was “no longer permissible to conclude” that the killings had occurred in that way (Judgment §147), but the official account has still not been withdrawn or qualified in any way by the Respondents.
3. The Appellants appeal against the order of the Divisional Court of 5 December 2012 (A1/D/3) dismissing their claim for judicial review of the Respondents’ decisions of 29 November 2010 (A1/F/12-29) and 4 November 2011(A1/F/37-39).
4. The Grounds of appeal are:
(1) DUTY. The Court erred in holding that the Respondents were not under a duty to hold an inquiry or otherwise investigate further, by reason of (a) Article 2 of the ECHR or (b) customary international law (Judgment §8ii and §§90-105). See §§44-67 below.
(2) DISCRETION. The Court erred in holding that the refusal to exercise the discretion to hold an inquiry was justified in law (Judgment §8iii and §§124-176). See §§68-74 below.
5. The Appellants’ submissions as to why the Divisional Court erred in law (applying objective standards of review of which the reviewing Court, including the appellate court is arbiter) are set out below. But the factual context is important. What is set out here is a summary, but the Court’s attention is invited to the Divisional Court’s Judgment and to Part 2 of the Claimants’ skeleton below (A1/B/6-89) in order to appreciate the state of the evidence gathered so far, what has changed in the Respondents’ position on the killings and what has not.
6. The Court will be struck by the fact that what is sought is by way of inquiry into events which occurred in December 1948, and will wonder whether there can be any extant legal significance – in human rights law or domestic public law – of acts which took place decades ago. In that respect, it is immediately worth bearing in mind that:
(1) It is now well-recognised that the public interest considerations which inform the operation of the rule of law do protect against inadequately investigated incidents being “quietly forgotten” (§21 below). Duties of investigation can be freestanding, and continuing, not parasitic upon and temporally coterminous with the underlying incidents.
(2) The paradigm case for a continuing obligation of further investigation is a context where: (i) there is a credible allegation of a serious human rights violation of the nature and dimensions of a war crime which strike at the guarantees and values that the right to life protects; (ii) a significant proportion of procedural steps ought to have been undertaken after the date when relevant legal duties were applicable to the State; and/or (iii) information casting new light on the circumstances has become available such as would enable an earlier inconclusive investigation to be pursued further. See §59 below.
(3) So, in human rights law it is these considerations, and not the fact of the lapse of decades, which informed the determination of the ECtHR as to whether an investigative duty subsisted as at March 2012 on the part of Russia in the context of the Katyn massacre of 1940. See Janowiec v Russia ECtHR 16.4.12 at §§15, 112, 130-142 (A4/4). No ECHR Art 2 investigative duty arose, but that was because the ECHR had no application to Russia until May 1998, 58 years after the killings in question, by which time any ongoing ‘connection’ had been lost: all relevant and weighty information had come to light and all relevant investigative steps had been or ought to have been undertaken. Janowiec is pending before the Grand Chamber, pursuant to a reference made on 24 September 2012.
(4) Similarly, such considerations are reflected in comparative human rights law. See, for example, the determination of the Inter-American Court of Human Rights that an extant investigative duty and breach subsisted in June 2005 in relation to the Moiwana village massacre in 1986: see Moiwana Village v Suriname IACtHR 15.6.05 (A4/1); discussed and applied by the ECtHR (GC) in Silih v Slovenia (2009) 49 EHRR 37 (A4/2) at §117 & §160 fn.75. The Moiwana Village case was subsequently referred for further hearings as to whether the Court’s judgment has been properly implemented. Suriname had become a State Party to the American Convention in 1987. In that case, the lapse of years and decades without the remediation of the manifestly inadequate initial investigation led to the Court’s concerns and resolve being heightened: see e.g. §152 (“the State has maintained this posture of indifference”) and §163 (“Suriname’s seriously deficient investigation … and the extended period of time that has transpired … have defied the standards … established in the American Convention”). So, there was a breach in 2005 of an existing and freestanding human rights duty to investigate events from 1986.
(5) As a further example, absent the Saville Inquiry it is not now difficult to see why the case for an investigation into the events of Bloody Sunday would be compelling, despite the passing of the decades. Some matters are of such a nature that the rule of law so requires, and the Courts are the ultimate arbiters of whether that is the case and by reference to what legal standards such a determination is to be arrived at. That is a weighty and important responsibility, and one worthy of analysis by this Court, in this most anxious of cases.
THE FACTUAL CONTEXT
Prior to December 1948
7. In 1948 British troops, including battalions of the Scots Guards, were deployed to Malaya to assist the civilian authorities in maintaining public order during a Communist uprising known as the ‘Malayan Emergency’. The centrality of the Malayan rubber economy to Britain’s post war recovery made holding on to Malaya a matter of the highest priority to the United Kingdom Government. The intelligence assessments were that the threat from the Communists was both internal and from over the northern frontier. The soldiers sent to Malaya to respond to it were largely National Service conscripts, many of whom had not fought in the Second World War and who had very little training in jungle warfare and counter-insurgency. The Scots Guards in particular were lacking in commissioned officers. British Army casualties in the first few months of the emergency were considerable, as were the figures for civilian and Communist insurgent fatalities. Documented responses to the threat posed by Communist raids were to burn villages in their entirety and move inhabitants to other parts of the country. An express licence to shoot escaping prisoners was also written into Emergency ordinances in January 1949, but this was several weeks after the massacre in Batang Kali.
The Batang Kali Killings
8. Early in the evening of 11 December 1948, a 14-man patrol of the 7th Platoon, G Company of the 2 Scots Guards took control of a village of residential huts on the Batang Kali rubber plantation. The patrol detained around 50 unarmed adults, together with some children. The men were separated from the woman and children and locked in the huts. The main local town to the north of the plantation was Kula Kuba Bahru, where there was a British army barracks and a police station. Properly detained persons would have been taken to the town for questioning or further questioning, but the Batang Kali villagers were interrogated at the site. The interrogation process included mock executions that caused at least one of the male prisoners to suffer a nervous collapse. Another man, Loh Kit Lin, was shot dead on the first night during the course of the interrogations; he was the first to be shot dead and his death was used as an example to the rest. The official version was that he was ‘trying to escape’. Others, including some of the patrol, would later say that he was executed. Either way, his body was left on the ground outside of the huts so as to be visible to those of the remaining villagers who were subsequently interrogated themselves.
9. At some point, one of the workers, Cheung Hung (aka Chong Fong), provided information that Communists sometimes came to the village to raid the villagers’ food stores. They were bandits; the villagers were not. Cheung Hung was then kept separately from the remaining men. The information he had given was communicated to those in charge of the British soldiers. The villagers were detained in the huts overnight and soldiers were posted around the compound to see if the Communists arrived overnight to raid the store. They did not come.
10. The following morning a truck arrived from the local village bringing the workers’ rationed supplies. The foreman of the plantation was detained. The women and children were put onto the truck, as was the man who had collapsed from nervous shock the night before. The truck was driven a little way, in readiness to be driven back to the village, and was then parked in sight of the huts. The remaining men were locked and placed under guard in the hut where they had spent the night. No vehicle had been arranged to take them to the town for questioning.
11. What happened next will shock the conscience of the law. The soldiers let the men ‘out onto the veranda’ of the hut, for no identified legitimate reason, and – within minutes – had shot and killed 23 men. Several were wounded initially but all were shot repeatedly until they were ‘finished off’ on the ground. The soldiers then set the huts alight and burned the village to the ground. The lorry departed for the village; the patrol left for the town. The sole survivor, Cheung Hung, had been detained separately by Detectives Chin Woh and Gopal. They were local police officers who had accompanied the patrol to Batang Kali along with a guide, Inche Jaffe. Cheung Hung had provided the information about the raiding bandits. He also provided a statement to the local police soon after the event, as did both officers. Cheung Hung said that he had seen the men being led away from the huts and then the shooting began. His statement was not considered at all until 1970.
12. There was no truth or accountability. In the subsequent days the official account was deliberately promulgated in the local media and by the British High Commission; that all those killed had been Communist insurgents (known as ‘bandits’) and that the deaths had occurred as a response to all of them trying to escape. An ‘investigation’, unworthy of the name, was carried out by the Attorney-General of the Federation of Malaya, Sir Stafford Foster Sutton. He did not take statements from any of the surviving villagers; neither did he consider the statement of Cheung Hung. Inquiries from the Colonial Office in London to the High Commission led to an assurance by telegram that the patrol “did everything that it was possible for them to do to stop the escaping Chinese before resorting to force” (A2/Q/15). At the same time the High Commission revealingly urged to be “conservative in our criticism of the [British soldiers] who are undoubtedly carrying out a most arduous and dangerous job” (ibid).
13. On 26 January 1949 the Colonial Secretary Mr Creech Jones gave a written statement to Parliament affirming what had been said by the authorities in Kuala Lumpur. He went on to confirm that “the Chinese in question were detained for interrogation under powers conferred by the Emergency regulations” (A2/Q/35).
14. Also publicly reported was the Attorney-General’s (Sir Stafford Foster Sutton) conclusion, “after careful consideration of the evidence”, that “had the Security Force not opened fire, the suspect Chinese would have made good an attempt at escape which had been obviously pre-arranged” (A2/Q/35). So: this was a minimum necessary use of force to prevent an escape attempt. That was the Attorney-General’s official published position. One unmistakeable feature of this case is that the Attorney-General was later to contradict himself: he spoke later of what was known and understood to be a terrible ‘mistake’, which he characterised even then as a ‘bona fide’ error: see §17 below.
15. The official account has never been formally withdrawn. Its maintenance is a particular focus for complaint by the survivors and relatives of those who were killed. These villagers were not shot because they were ‘trying to escape’. In any event, the shooting until all 24 of them were ‘finished off’ (i.e. all but Cheung Hung) can only be described as a grossly unreasonable use of force against unarmed plantation workers, who had been terrorised overnight and who – at the highest – were from time to time raided by armed Communist insurgents for food. The official account defames the memory of the dead and continues to mask the human rights abuses that occurred in the village during the night and that morning. Its maintenance is unworthy; indeed reprehensible.
The 1970 investigation 
16. As a result of investigatory journalism by The People newspaper in 1970, five of the surviving patrol members publicly withdrew the escape explanation and made admissions to the effect that they had murdered the villagers. Some said they had been coerced into giving the escape explanation in 1948 by officers. Only the patrol’s commander, Charles Douglas, and his second in command, Thomas Hughes, maintained the official explanation when contacted by journalists. A number of the survivors in Malaysia were traced and explained that the men had simply been taken out of the huts and shot. They included Cheung Hung. By this time, perhaps to avoid criticism for providing information about the Communists during his own abusive interrogation, he tried to suggest that he had been part of the group that was shot at, rather than watching what was going on from a separate part of the compound. The Malaysian police guide, Inche Jaffe, also told the local newspapers that none of the men were trying to escape at the point that they were shot.
17. In the subsequent days two of the soldiers, Alan Tuppen and Victor Remedios, gave interviews on British national television and radio confirming in unequivocal terms an account of unlawful killing. Sir Stafford Foster Sutton was also interviewed on the BBC News at One. All of the transcripts are available. Sir Stafford repeatedly described the killings as “a bona fide mistake” and made it clear that “anyone who knew anything about it at the time entirely agreed that it was a bona fide mistake” (A1/H/41-43). That account cannot, of course, stand with the official account that the killings were, in essence, the result of a necessary and proportionate use of force: see §§12-14 above.
18. Following an outcry in Parliament, the matter was referred to the Director of Public Prosecutions and thereafter the Metropolitan Police. The police conducted interviews of the surviving patrol members, save for Douglas and Hughes, who had already gone on record to repeat the official escape narrative.
19. Eight soldiers were traced and interviewed under caution and, in the presence of solicitors, six effectively admitted to murder. The other two repeated the official escape narrative. Sir Stafford was also interviewed about his 1948-1948 investigation. He told the police, revealingly and inexcusably, that “No enquiries [were] made of [Batang Kali’s] inhabitants, [and] none questioned, for a very good reason, because they were most unlikely to talk, and if they did talk to tell the truth” (A2//X/187). He referred to speaking with the Chinese Detective who had been at the scene at the time of the killings. This would have been Detective Chin Woh.
20. The Metropolitan police recommended proceeding in stages. First, the investigation should be continued by steps taken in Malaysia. Secondly, the “central figures”, Douglas and Hughes, would then be interviewed upon return (A2/T/174; see also A1/J/12). Sir Nigel Skelhorn QC, the Director of Public Prosecutions of the day, agreed to this course of conduct on account of advice from the investigating lawyer that inquiries should be pursued in Malaysia “otherwise the enquiry will only be half done” (A2/T/194). But when the Foreign Office became aware that UK police were due to travel to Malaysia, representations were made to the Director of Prosecutions about interviewing local residents, suggesting that the police team would “find it hard to establish with certainty the credentials of the witnesses claiming first hand knowledge”, that “the number of first hand accounts could multiply if there were any suggestion that possible compensation claims might have some chance of success” and, again inexcusably: “villagers’ powers of recall are rarely accurate” (A2/T/185-186).
21. A general election took place on 18 June 1970 and there was a change of government. The police officer heading the investigation, DCS Williams, was informed that the DPP met with the new Attorney General, Sir Peter Rawlinson QC, on 26 June 1970. On 29 June 1970 the DPP wrote to the Ministry of Defence to advise that the investigation was to be terminated. This was explained as follows: “the institution of criminal proceedings would not be justified on the evidence so far obtained. Further in my view the prospects of obtaining sufficient evidence by further police investigation in Malaysia are so remote that this would not be warranted” (A2/T/210-211). Williams wrote a report to his superiors complaining that “the matter was politically flavoured from the outset” and that “it was patently clear that the decision to terminate enquiries in the middle of the investigation was due to a political change of view when the new conservative government came into office” (A2/J/1 § 3). No action was taken in response to his concerns. After the decision to terminate the police investigation, a suggestion raised in internal MOD correspondence that there might be a discrete fact-finding inquiry by a Panel or a senior lawyer was withdrawn. As one MOD memo put it, as a result of that decision, “If no reaction is forthcoming, the matter will probably now remain buried in the public mind ‘in perpetu’, and quietly forgotten” (A2/T/233). The Appellants respectfully suggest that the idea of this massacre of villagers being “quietly forgotten” is as unworthy today as it was in 1970.
Events in UK in the 1990s
22. In 1992 the BBC broadcast ‘In Cold Blood’, a documentary about the massacre (DVD at AB1/K). The programme involved interviews with some of the surviving relatives, Detective Inspector Ron Dowling (second in command of the 1970 police investigation) and three Guardsmen deployed to Malaya who had not been on the patrol, but who heard about the incident soon after the event. The programme also had access to some, but not apparently all, of the original Metropolitan Police file.
23. The survivors’ interviews narrated the horror of the overnight interrogations and the traumatic memory of later finding the dead bodies left where they fell. The soldiers interviewed expressed a marked concern that the official account that they were given might not be correct. Dowling could not explain why the investigation was terminated before its logical conclusion. The surviving soldiers refused to appear on the programme, but the ones who had originally confessed confirmed their 1970 accounts.
24. As a result of the programme, Ministers were briefed by Richard Suckling, Head of PL (LS) Legal. He referred Ministers to the fact that the shootings might not be justified under contemporary legal and social standards. He also advised that a legislative defence to shooting escaping suspects that was promulgated in January 1949 would not withstand scrutiny today. Reference was made to the contemporary situation in Northern Ireland where British army soldiers faced the threat of criminal charges in similar circumstances.
25. Towards the end of the year the CPS commissioned a review of the 1970 decision to terminate the investigation. The review concluded that it had been terminated too early and in conflict with the advice of the original case lawyer. Although doubts were raised about Cheung Hung’s later account, based as it was on a suggestion that he was part of the group that were executed and had merely fainted, the CPS equally doubted that all of the survivors would have been inherently reliable. No further inquiries took place.
26. On 8 July 1993, survivors sent a formal petition to the Queen to reopen the case. At the same time the Malaysian police started their own official investigation. Under the advice of the High Commission and the Foreign Office, this first petition was never answered. The CPS suggested that the fruits of the original 1970 investigation be shared with the Malaysian police. This was never allowed to occur.
The Malaysian Police Investigation
27. Between 1993 and 1997 the Malaysian police pursued many of the lines of inquiry in Malaysia that had been planned by the British police in 1970 before their investigation was terminated. The contents of the investigation report and the contemporaneous records of Foreign Office response to it only came to light as a result of these judicial review proceedings. Likewise, as a result of cooperation by the Metropolitan police and the Director of Public Prosecutions, these proceedings were the first time that the fruits of both investigations were disclosed into the public domain.
28. Having interviewed a number of survivors, the Malaysian police collected statements that clearly described how as women and children they were put onto a lorry. Some of the witnesses had seen the men being taken out of the huts, rather than running away, and confirmed that, at the time that the men were allowed to leave the huts, there was no vehicle to transport them anywhere. Some described returning to the site the following day to find the dead bodies were lying in specific groups and not in a scattered fashion. Chinese police detective Chin Woh now dishonestly denied being at the scene at all, despite the fact that one witness identified him from police photographs. At the time, the Malaysian police did not know that Chin Woh had provided statements in 1948 describing the information that Cheung had given while under interrogation at Batang Kali; neither did they know that he had given an account at the first available opportunity that the dead had been led out of the huts and were walking away prior to being shot.
29. In a striking similarity with the events of 1970, the Malaysian police applied to come to the United Kingdom to carry out interviews with the soldiers, but their originally authorised trips were cancelled. Available documents from the Foreign Office and High Commission show that there were concerted decisions to procrastinate in providing any assistance to the Malaysian police. The 1970 UK police investigation materials were also withheld, as were the current addresses of the soldiers which had been ascertained. Associated with this was a marked degree of concern about damaging trade relations with Malaysia. One Foreign Office letter of 14 June 1995 asked, shamefully, that the political adviser at the High Commissioner take steps “to try to steer” the Malaysian police away from a UK visit (A2/V/8-9). The planned visit never took place and little progress appears to have been made after 1997. The Malaysian investigation was officially closed in 2004.
Events in the 2000s
30. In 2003 further evidence came to light from the leader of the Chinese Communist insurgency, Chin Peng. In his autobiography he made clear that the residents at Batang Kali were not connected to the Communists and that it was indeed a cold blooded massacre as maintained by its survivors. The Scotland on Sunday ran a piece about the book on 14 December 2003 in which General Sir Michael Gow on behalf of the Scots Guards described the allegations “as complete nonsense” (A2/W/14) and a spokesperson from the Ministry of Defence said: “The events at Batang Kali have been well-documented and investigated” adding that “there is insufficient evidence to warrant criminal proceedings” (A2/W/14).
The Respondents’ Decisions
31. In March and December 2008 survivors and relatives of the Batang Kali massacre submitted a further petition and a supplementary petition to the Queen pressing for an inquiry into the killings, an explanation and reparations (A2/X/1-2, 19-20). Those petitions were formally rejected in January 2009, the Respondents having declared that (A2/X/36) “[i]n view of the findings of two previous investigations that there was insufficient evidence to pursue a prosecution in this case, and in the absence of any new evidence, we see no reason to reopen and start a fresh investigation.”
32. This led to the letters before action in these proceedings that argued that the Respondents were under a duty to hold an inquiry or otherwise investigate meaningfully by virtue of customary international law, but in any event should exercise their discretion to do so. By way of letters before action dated 1 April 2009 and 3 September 2010 (refs A2/X/42-70 and A2/X/304-349), the Claimants argued that the official account was legally and factually unsustainable. They also argued the deficiencies in the investigations of 1948, 1970 and the 1990s underscored the need for an independent and effective investigation of this particularly serious matter.
33. The Respondents asked a junior barrister to review some of the historic papers that were in their possession (though not all the material that was made available to the Divisional Court) (A2/X/109-139). On 29 November 2010 (A1/F/12), they then decided that they were neither under a duty to hold an inquiry or some other form of independent investigation. They also exercised their discretion not to hold inquiry in any event. The Claimants issued a claim for judicial review on 25 February 2011 challenging that decision. Permission was granted on 31 August 2011 by Mr Justice Silber who indicated that the claim raised “arguable issues of importance” (A1/D/1). By way of a second decision on 4 November 2011 the Respondents maintained that the deficiencies in previous investigations did not sufficiently militate in favour of holding an inquiry (A1/F/37).
The Findings of the Divisional Court
34. The Divisional Court made a number of findings on important matters that, prior to the hearing, the Respondents had been unwilling to accept. In doing so, the Court said it was not itself determining what happened at Batang Kali. Nonetheless it is important to analyze the evidence before the Court, identify the conclusions that could be drawn from it and the factors that should have been taken into account in deciding whether the law required an inquiry or further investigation by other means.
35. The Divisional Court began by observing that those “shot and killed” at Batang Kali were “24 civilians” (Judgment §1), who the Respondents had accepted in the hearing for the first time, “did not wear uniforms, had no weapons, and were a range of ages” (Judgment §29).
36. Further additional features of the killings highlighted in the Judgment include the following (Judgment §29):
(1) On the first night “a young man was shot dead by the patrol” and left to lie on the ground in front of the huts.
(2) “Interrogation of the inhabitants took place” during which time “there were simulated executions to frighten, causing trauma”.
(3) In the morning, the women and children and one traumatized man were loaded onto a lorry that arrived from the village. The men, who continued to be detained, were kept in locked huts until the lorry had been driven a short distance away.
(4) “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”.
(5) “The inhabitants’ huts were then burned down and the patrol returned to its base”.
37. The Court also found that, at the time when the hut doors were unlocked to bring the men out onto the veranda, there was no military or civilian vehicle present to take them back to military base, or anywhere else (Judgment §39ii).
38. With regard to the 1948-1949 investigation, the Divisional Court concluded:
(1) “No consideration was given… as to whether the actions of the soldiers in shooting the inhabitants of the village was necessary and proportionate in circumstances where every single person was killed rather than some being wounded” (Judgment §143).
(2) “It is difficult to see” how the general order to shoot escaping prisoners extant at the time could be justified under the common law position prevailing at the time (Judgment §145).
(3) It is “clear” that the 1948 inquiry “had very serious weaknesses” including the failure to consider whether the shootings were reasonable or proportionate, despite the shoot to kill issue being raised at the time (Judgment §147).
(4) “The attitude taken by Sir Stafford to the inhabitants of the village, as set out in paragraph 35.i) – i.e. that they would be unlikely to tell the truth and were therefore not worth interviewing – “cannot be justified. That attitude and the failure to take evidence from inhabitants significantly undermines the objectivity of the inquiry” (Judgment §147).
(5) Sir Stafford had ignored the two contemporaneous statements of Cheung Hung given in 1948 that described the detainees as being walked away from the huts, as opposed to trying to escape (Judgment §36(i)).
39. The Judgment also found that:
(1) One (though not the only) aim of an inquiry now would be to establish why 24 men “detained in custody” by British troops were killed, an issue involving “the most fundamental right – the right to life” (Judgment §§29, 136-137).
(2) There was a conflict of evidence as to whether there was a deliberate execution of the men or the men were shot when trying to escape from lawful custody, but:
“[i]t can no longer be permissible to conclude, in our view, on the evidence available at the present time which was before the court, that the 24 men were shot when trying to escape. Nor can the conclusion now be reached that the 24 men were deliberately executed. There is evidence that supports both accounts” (Judgment §142)
This was a finding to which the Divisional Court returned in its separate Consequentials judgment at §6 (A1/C/43). It meant:
“that on the evidence before us, it was no longer possible to maintain the conclusion reached by the 1949 enquiry. Although we agree with the Secretaries of State that there is a conflict of evidence which it is now impossible to resolve, the position taken by us in the judgment went further than the Secretaries of State had been prepared to go.”
The possibility that there was a cover up by British officials in 1948 “cannot be dismissed” (Judgment §152).
(3) The allegation that the Scots Guards had themselves covered up the killings was very serious and “could properly be made on the evidence” (Judgment §153).
(4) It would have been possible to carry out a detailed factual inquiry in 1970, “as, even though much of the 1948-9 work had been destroyed, most of those who could give evidence were still alive” (Judgment §150) and so the decision not to hold the inquiry in 1970 was “much more difficult to justify, as, at that stage, it might have been possible to resolve the conflicts of evidence” (Judgment §155).
(5) As to the efforts to investigate the massacre in the 1990s, the Court found it:
“difficult to escape the conclusion that a decision was made by the relevant Departments of the British Government to progress any inquiries with as much delay as possible and to take an uncooperative attitude towards the inquiry by the Royal Malaysia Police. There is nothing to suggest a deliberate cover-up, but again these are factors to be taken into account” (Judgment §156).
(6) As a matter of fact “the Royal Malaysian Police obtained virtually no assistance from the United Kingdom authorities” (Judgment §79).
40. That withholding of British assistance meant that it was not until the judicial review that the cumulative papers of the Metropolitan police and the Royal Malaysian police were brought together with what had been disclosed by the Respondents and analysed for the first time. The net result was a body of documents recording the first hand accounts of most of the soldiers involved and other witnesses, the conclusions of the 1948-1949 investigation and the interim conclusions of the UK and Malaysian police. There was also comprehensive material put before the Court on the legal status of British troops in Malaya, responsibility for them and the circumstances in which lethal force could legitimately be used.
41. This is important, because all this would be available to an inquiry. Oral evidence from living witnesses (including the soldiers who confessed in 1970 and who are still alive) and the Appellants would also be available. With the assistance of the Malaysian authorities, the bodies of the victims could be disinterred and the distance and direction of the gunshot wounds analysed, just as has happened in connection with the investigation of similar massacres. Both the UK and Malaysian police had contemplated this exercise and evidence of the forensic benefits (A2/X/336-337) was not contested.
42. Despite all this, the Divisional Court concluded that the Respondents were entitled in law to do nothing. This was because, held the Court, there was no duty under Article 2 ECHR or customary international law duty to hold an inquiry (Judgment §8ii and §§90-105) and nor was it unlawful to refuse to exercise discretion to do so because an inquiry now would be unable to determine what had happened “definitively” (Judgment §8iii and §§124-176). The question on this appeal is whether these conclusions were correct in law.
BREACH OF DUTY
43. The Respondents’ first line of defence on the duty issue was a complex constitutional argument that the UK was not legally responsible for the actions of the Scots Guards when the killings occurred or, even if it had been, that responsibility had passed to the Malaysian Government upon independence. This was comprehensively and rightly rejected by the Divisional Court (Judgment §§106-123). If the Respondents maintain their position on appeal, by means of a Respondent’s Notice, the Appellants will respond as necessary in a Supplementary Skeleton Argument prior to the hearing of this appeal.
Duty Imposed by Article 2 ECHR
44. The reason why the Divisional Court rejected the Article 2 argument despite finding the UK legally responsible was that it regarded itself as bound by domestic authority under the Human Rights Act, namely:
(1) Re McKerr  1 WLR 807, HL; and Re McCaughey  1 AC 725, SC in relation to the temporal scope of the Human Rights Act in respect of events pre-dating October 2000, notwithstanding the subsequent ECtHR decision in Janowiec v Russia, Apps 55508/07 and 29520/09, 16 April 2012 (Judgment §99). As to this, see §§51-62 below.
(2) Al-Skeini HL (R(Al-Skeini) v SS for Defence  AC 153) and Smith SC (R (Smith) v SS for Defence  1 AC 1) in relation to territorial scope of the Human Rights Act, notwithstanding the subsequent ECtHR decision in Al-Skeini GC (Al-Skeini v UK (2011) 53 E.H.R.R. 18 (Grand Chamber)) (Judgment §100). As to this, see §§46-50 below.
45. The Divisional Court did not hold that it was otherwise legally incorrect to conclude that the investigative duty applied to the mass killing at Batang Kali. That alone makes this a paradigm case for permission to appeal.
(1) The Court did not hold, or even express the view, that the Appellants were wrong in their analysis of ECHR Article 2 under Janowiecz (temporality) or Al-Skeini (territoriality).
(2) Nor did the Court hold, or even express the view, that the Appellants were wrong to submit that the HRA ought in principle to “mirror” the ECHR Article 2 in relation to temporality and territoriality and ongoing breach of Article 2.
(3) Rather, what the Court found was that these arguments were not open at that level. This is therefore a classic case where permission to appeal is proper and appropriate. It is only by being able to appeal that appellate Courts can re-evaluate whether previous, binding decisions should be maintained in the light of subsequent Strasbourg caselaw. That is a sufficient reason to grant permission to appeal on the duty point.
(4) That the Divisional Court was simply adhering to domestic authority which it considered to be binding on it is reinforced by the Court’s subsequent judgment as to permission to appeal. The Court did not reason that the duty arguments were, in its view, unarguable on appeal. Rather, the Court held that it was for the Appellants to pursue them in this Court. See the Consequentials Judgment at §8 (A1/C/43).
46. It is convenient to take this point first. The territorial objection which had been raised by the Respondents was that, pursuant to the domestic House of Lords decision in Al-Skeini followed by the Supreme Court in Smith, jurisdiction was limited to detention in a British detention facility. On this point, the Divisional Court said this (§100):
“As it is not permissible for this court to consider applying the principles set out in Janowiec as to the temporal scope of the Convention, it is not necessary to consider at any length the arguments about the territorial scope of the Convention based on the decision of the Grand Chamber in Al-Skeini v United Kingdom (2011) 15 EHHR 18 and its statements about the territorial scope at paragraphs 122-137. Although it is clear that the patrol of the Scots Guards had physical control over the 24 men who were shot, the Court would, even if Article 2 had been applicable on a temporal basis, have had to apply the decisions of the House of Lords in R (Al-Skeini) v Secretary of State for Defence  UKHL 26 and R (Smith) v Secretary of State for Defence  UKSC 29, despite the view taken by Lord Brown at paragraph 132 of Al-Skeini and that of Lord Phillips at paragraph 29 of Smith.”
47. There is no sound territorial objection. The correct analysis involves four steps. First, it is very clear that no territoriality objection could succeed in Strasbourg. That is because (a) physical control of a detainee suffices for purposes of territoriality and (b) the villagers were detained (see §§8 and 39(1) above). This position is clear as a result of the decision in Al-Skeini GC. It suffices that state agents have used force to bring an individual under the control of the state’s authorities by detaining the individual. The Respondents rightly did not dispute this analysis of Al-Skeini GC. The case is a fortiori where, as the Divisional Court held, the situation of command and control that applied to the detaining of the villagers at Batang Kali took place in a context in which the United Kingdom Government was responsible, as opposed to either the Sultan of Selangor or the Federation of Malaya (Judgment §§106-123).
48. Secondly, it is well-established that the jurisdictional reach of the Human Rights Act 1998 matches (in a way described as a “mirror”) that of the ECHR. See Al-Skeini HL at §§88, 150. This too was rightly not disputed by the Respondents.
49. Thirdly, the domestic authorities of Al-Skeini HL and Smith SC do not preclude a Court below the Supreme Court from following the Strasbourg decision in Al-Skeini GC. The reasons for that have been explained in the recent decision of this Court in Smith (No.2)  EWCA Civ 1365  PIQR P3 (A4/5), namely:
(1) Strasbourg is “the proper tribunal to resolve the issue of jurisdiction” and “there is no margin of appreciation to be accorded to national authorities in relation to Convention jurisdiction”, so that the “more fundamental reason for applying [the] rules of precedence does not apply”, while “the demands of certainty” are here met by “the authoritative ruling of Strasbourg”. See Lord Neuberger MR in Smith (No.2) at §15.
(2) This Court is entitled to apply the decision in Al-Skeini GC, and so “differ from Smith [SC] [if] the decision of the Grand Chamber in Al-Skeini compels the conclusion that the decision of the majority of the Supreme Court was wrong”. See Lord Neuberger MR in Smith (No.2) at §16.
This analysis is reinforced by the fact that Al-Skeini HL itself was not deciding as any part of its ratio whether jurisdiction based on detention would be limited to a British detention facility: the only case before the HL involving detention was Baha Mousa’s case which was a British detention facility case in which jurisdiction was accepted. This would explain why Lord Brown’s comment was not the subject of more detailed reasoning. The correct position is that there is and can be no conflict with the approach of House of Lords in Al Skeini and the approach of the European Court to sui generis forms of jurisdiction, be they physical detention (as in Medvedev v France (2010) 51 EHRR 39) or agency amounting to effective command and control of an identifiable area (as in Issa v Turkey (2004) 41 EHRR 567), and this Court is fully entitled so to hold.
50. Fourthly, if it were the case that binding HL/SC authority is applicable but inconsistent with a decision of the Grand Chamber, the correct response is for there to be permission to appeal and the dismissal of the substantive appeal, so that the Supreme Court has the jurisdiction to overrule Al-Skeini HL and apply Al-Skeini SC. So, if the Divisional Court was bound by Al Skeini and Smith in the Supreme Court, then the importance of the issue would clearly justify permission to appeal being granted so that the matter can, in due course if necessary, be considered by the Supreme Court.
51. With regard to the temporal issue under Article 2 ECHR (see §46 above), the analysis has five stages. First, it is correct that McKerr held that the temporal focus for the investigative duty was the date of the relevant death, and so the jurisdictional reach of the Human Rights Act must be limited to post-2 October 2000 deaths. The same point was accepted in Hurst v North London Coroner  2 AC 18: that the substantive and procedural rights under Article 2 were indissoluble and the investigative duty could not be temporally freestanding. That, however, was overruled by the Supreme Court in McCaughey (A4/3), to give effect to the ECtHR Grand Chamber’s judgment in Šilih v Slovenia (2009) 49 EHRR 996 (A4/2). See eg. Lord Kerr at §110 in McCaughey. The Divisional Court was right to identify the roadblock as having been imposed by the decision in McKerr but wrong not to recognise it as having been removed in McCaughey.
52. Secondly, the question must surely now be – as a matter of domestic law – whether there would or would not be a live, applicable, continuing investigative duty at the present date. If so, and if Strasbourg would find a present default, then the “mirror” principle is satisfied. The HRA matches the ECHR as to jurisdiction. There is no problem of retrospectivity. The duty is live and present, as is the default. There is no difficulty presented by the date of 2 October 2000. Nor is there a lacuna in the protection provided by the HRA in bringing rights home. In McCaughey there was a live duty and a present default, and that was sufficient for HRA jurisdiction. That is the correct and straightforward application of the freestanding investigative obligation.
53. Thirdly, the principles as to whether there is a live, present duty and default are to be articulated by Strasbourg. Like the territorial question, this is in principle an objective question for Strasbourg to answer and not one involving a domestic margin of appreciation: see §49(1) above. It follows that there is no objection to applying Strasbourg authority, because domestic authority recognises that Strasbourg authoritatively decides such questions.
54. Fourthly, the Supreme Court has endorsed the approach of the Grand Chamber in Silih subject to any further clarification from Strasbourg, and such clarification has been provided by the ECtHR in Janowiecz. Applying the Strasbourg principles, the freestanding obligation is triggered on the facts and in the circumstances of this case. No domestic authority stands in the way of applying those principles here. This point is worthy of some further elaboration.
55. In McCaughey (A4/3), the Supreme Court specifically applied Silih and deliberately drew attention to the need for the English courts to give effect to any future elaboration by the ECtHR of the principles set out in the important paragraph 163 of Šilih (quoted per Lord Phillips at §44 in McCaughey):
“There must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent state for the procedural obligations imposed by article 2 to come into effect. Thus a significant proportion of the procedural steps required by this provision—which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account (Vo v France (2004) 40 EHRR 259, para 89)—will have been or ought to have been carried out after the critical date. However, the court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.”
56. Šilih (2009) (A4/2) recognized that the death(s) in question may have preceded any applicability to the State of the ECHR. There, the death occurred in 1993 and Slovenia had only acceded to the ECHR in 1994. Janowiec (2012) (A4/4) applied the same logic of a free-standing obligation, to hold that the death(s) may have preceded the ECHR itself. There, the deaths had occurred in 1940 and the Convention had not come into force until 1950, with Russia ratifying it only in 1990. The ‘critical date’, for the purposes of whether an investigative duty could be a continuing one, was the date when the State had acceded to the ECHR. The ECtHR has held (see the passage quoted above) that the investigatory obligation is detachable from the underlying wrong so as to apply where a death preceded the applicability of the ECHR to the State concerned, provided there is a sufficient connection to ‘bridge’ the gap either because (a) a significant proportion of the procedural steps required have been or ought to have been carried out after the critical date or (b) the context requires that the guarantees and underlying values of the ECHR are protected in a real and effective manner. The same principle is set out at §132 of Janowiec (cited at §96 of the Divisional Court’s Judgment).
57. Here, the ECHR came into force in relation to the United Kingdom on 3 September 1953. There is a close connection in time between the killings in 1948 and the coming into force for the UK of the ECHR, and the gap is bridged. Moreover, on any view in the circumstances, a sufficient proportion of the requisite steps would have fallen to be undertaken after September 1953. Further, and in any event, this is the paradigm case where there is the broader requirement “to ensure that the guarantees and underlying values of the ECHR are protected in a real and effective manner”. The argument is straightforwardly set out in the amended grounds for judicial review (A1/B/163-164) for which the Divisional Court gave permission at the hearing, and on which the Appellants rely without setting their contents out again here.
58. Rather than foreclosing the development of how that principle, from the last sentence in §163 of Šilih, should be interpreted, all of the judgments in McCaughey recognize that the point would need to be developed in light of the subsequent Strasbourg case law. Nothing was foreclosed. On the contrary, it was deliberately left open. The relevant passages from McCaughey (A4/3) are as follows. Lord Phillips at §49 said that:
“[The] meaning of each of the three sentences of para 163 is far from clear. The concept of a ‘connection’ between a death and the entry into force of the Convention for the state in question is not an easy one if, as seems to be the case, this connection is more than purely temporal. The final sentence of the paragraph is totally Delphic and would seem designed to prevent the closing of the door on some unforeseen type of connection. I shall say no more about it.”
Lord Hope at §73 said that:
“Only the most starry-eyed admirer of the Strasbourg court could describe the guidance that the Grand Chamber offered in para 163 of its judgment in Šilih v Slovenia as clear. Judge Lorenzen’s criticisms in his concurring opinion of the reasoning of the majority and the powerful dissenting opinion of Judges Bratza and Turmen show that it has many shortcomings. But I do not think that it is difficult to identify the point that matters for our purposes. In para 159 the court concluded from the fact that it had consistently examined the question of procedural obligations under article 2 separately from the question of compliance with the substantive obligation, and where appropriate found a separate violation of article 2 on that account, as revealed by the decisions listed in para 158, that the procedural obligation to carry out an effective investigation under article 2 had evolved into a separate and autonomous duty. Although it was ‘triggered’ by the acts concerning the substantive aspects of article 2 it could be considered to be a ‘detachable’ obligation arising out of that article which was capable of binding a state even when the death took place before it ratified the Convention”.
Baroness Hale at §§89-90 said that:
“The serious criticism of the Šilih v Slovenia decision is that it leaves so much uncertainty about when the investigative duty continues. As the court says, in para 161 of its judgment, the obligation cannot be open-ended. But, with respect, I agree with the concurring opinion of Judge Lorenzen, when he complains that the criteria laid down in para 163 of the court’s judgment (quoted by Lord Phillips of Worth Matravers PSC at para 44 above) are not easy to understand. However, I also agree with him that in one respect, they are quite clear. That is, in his words,
‘where the event occurred and an investigation was initiated before the entry into force of the Convention, but a significant part of that investigation was only carried out after that date’: para O-I4.
That is this case. 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.
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. The question is what the Convention rights now entail”.
Baroness Hale went on to hold at §93 that:
“…This case fits into the limited class of case identified by Judge Lorenzen in Šilih v Slovenia 49 EHRR 996. 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. The one case which does not quite fit into Judge Lorenzen’s formula is where there is a death before the relevant date and the decision to hold an inquest or other inquiry is taken after that date. To my mind that would still fit into the criterion of ‘a significant proportion of the procedural steps required by this provision … will have been … carried out after the critical date’. In other words, 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.”
Lord Kerr at §108 said that:
“The real difficulty that the decision of the Grand Chamber creates is in defining the circumstances in which the procedural obligation arises. Clearly not every death that occurred before the ratification of the Convention by a particular state can be subject to the duty to investigate under article 2. Must there be a temporal connection between the death and the procedural obligation to investigate? If so, how close to the time of accession must the death have occurred? Or is another form of connection sufficient to generate the link? Is it sufficient that the ratifying state decides, after it has acceded to the Convention, to investigate a death that occurred before ratification? In that event, can the ratifying state avoid inspiring the procedural obligation by deciding not to investigate the death? Many of these questions remain unanswered by Šilih v Slovenia 49 EHRR 996. It seems to me probable that they will ultimately require to be addressed by the ECtHR and, for that reason alone, one cannot hope to provide a comprehensive statement on the precise, indispensable elements of the necessary connection but some aspects of this question require to be considered in order to determine whether, if Šilih v Slovenia is to be applied to the HRA, these appeals can succeed”.
Lord Kerr went on at §115 to cite §163 of Šilih and hold that:
“A number of points should be noticed about the statements contained in this passage. First, the majority stipulates that there must be a ‘genuine’ connection between the death and the critical date. It does not, however, specify what ‘genuine’ connotes in this context. True it is that it is stated that a significant proportion of the procedural steps required by article 2 will have been or ought to have been carried out after the critical date. But it is not at all clear that the court is there postulating that this is an indispensable requirement for the connection to be established or merely observing that this is the consequence of the existence of the connection. In any event, the catch-all final section appears to contemplate that the connection could be established by circumstances quite unrelated to any temporal proximity between the death and the critical date. Indeed, this final part of the paragraph is drawn in such wide and general terms that it is difficult to forecast the range of cases that might fall within its embrace”.
Lord Dyson said this (at §141):
“I would add that I hope that before long the ECtHR will have an opportunity to clarify the meaning of para 163 of the judgment of the majority. If nothing else, the present appeal has served to highlight some of its obscurity and the difficulties of its application”.
59. None of this closes a door, or reserves future developments to the Supreme Court. Rather, it identifies the importance of authoritative guidance and illumination from Strasbourg, and the appropriateness of acting in accordance with such guidance. The anticipated clarification as to the scope of the broader human rights protection of a duty to investigate gross violations of human rights in order to protect the underlying values of the Convention was provided at §139 of the judgment in Janowiec, which is not cited in the Divisional Court’s Judgment, and which states (emphasis added):
“The Court is further called upon to examine whether the circumstances of the instant case were such as to justify the finding that the connection between the triggering event and the ratification could be based on the need to ensure the effective protection of the guarantees and the underlying values of the Convention. Far from being fortuitous, the reference of the underlying values of the Convention indicates that, for such connection to be established, the event in question must be of a larger dimension than an ordinary criminal offence and constitute a negation of the very foundations of the Convention, such as for instance, war crimes or crimes against humanity. Although such crimes are not subject to a statutory limitation by virtue of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (cited in paragraph 76), it does not mean that the States have an unceasing duty to investigate them. Nevertheless, the procedural obligation may be revived if information purportedly casting new light on the circumstances of such crimes comes into the public domain after the critical date. It cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2 of the Convention. Given the fundamental importance of this provision, the State authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further (see Brecknell, cited above, §§ 66-72). Should new material come to light in the post-ratification period and should it be sufficiently weighty and compelling to warrant a new round of proceedings, the Court will have temporal jurisdiction to satisfy itself that the respondent State has discharged its procedural obligation under Article 2 in a manner compatible with the principles enunciated in its case-law (see the applicable principles in paragraph 133).”
60. The Appellants submit that Janowiec therefore provides a concrete recognition of how the broader principle articulated in paragraph 163 of Šilih can be recognized in practice. In those circumstances, it is submitted that McCaughey left the matter open and the issue does not need to return to the Supreme Court for the principles in Šilih and Janowiec to be given domestic application.
61. There is a present, continuing investigative obligation and a present default, within the broader principle in Šilih “based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner”. In line with the clarification provided in Janowiec, the massacre of civilians at Batang Kali undoubtedly “has a larger dimension than an ordinary criminal offence” and would have constituted a “war crime” in 1948 and would thus “constitute a negation of the very foundations of the Convention”. There is no question, as the Divisional Court has found, that “information… casting new light on the circumstances of such crimes [has come] into the public domain”. It has come into the public domain, long after “the critical date”, and against the background of the seriously deficient investigations carried out by the Respondents in 1948/49, 1970 and the 1990s.
62. Fifthly, even if the Appellants were incorrect and domestic Courts below the Supreme Court are bound by McKerr and/or McCaughey such that it could not follow Janowiec, then the importance of the issue coupled with the fact that this is manifestly a developing area of international human rights law upon which the Supreme Court expressly anticipated further litigation, would clearly justify permission to appeal being granted so that the matter, in due course if necessary, can be considered by the Supreme Court, albeit with the benefit of the views of the Court of Appeal.
Duty Imposed by Customary International Law (‘CiL’)
63. The position in customary international law is of special significance because: (a) it involves a self-standing legal duty by reference to the principles which have been seen now to be adopted in the human rights case-law; but (b) any perceived limitation in the jurisdictional reach of the HRA or in the domestic case-law would not stand to preclude it.
64. The Appellants set out in detail in the Court below how the relevant principles as to the freestanding duty of investigation of killings at the hands of the State operates as a continuing duty. The Divisional Court rejected this argument, not by reason of any criticism as to its substance. The Court accepted that the Appellants’ submission was supported by ample materials “in accordance with the well known principles for establishing customary international law” (Judgment §§101-102). The position is set out in the Skeleton below at §§4.5-4.23 (A1/B/122-129) and Annex 3 (A1/B/153-161). As with the HRA argument, the Court did not hold that the Appellant was incorrect in principle to submit that this feature of CiL could be regarded as being part of the common law.
65. The Divisional Court identified two obstacles. The first and primary reason was that it held itself to be bound at this level by McKerr, because a common law investigative duty was rejected in that case. Secondly, the Court observed (“it seems to us”) that any investigative duty under customary international law would need to be judged at the time of “the occurrence of the act about which an inquiry is sought” (Judgment §105).
66. In response to the Divisional Court’s primary reason, the Appellants submit that the discrete CiL issue was not raised in McKerr and the observations of Lord Steyn at §51-52 of the judgment call for its determination in a subsequent case. This is that case. Alternatively, if McKerr is binding, it should be re-assessed as above, in the light of subsequent Strasbourg case law and the much more detailed argument that the Appellants have developed in these proceedings. Lord Steyn’s observation in McKerr was that the point had “not been researched and was not the subject of oral argument”.
67. As to the Divisional Court’s additional observation, it is with respect unsound in law. CiL mirrors Article 2 in that the investigatory duty is not parasitic: see see McCaughey per Lord Hope at §73 (“a ‘detachable’ obligation”) following Šilih This is clear from the case law and practice that demonstrates CiL in Annex 3: see especially Moiwana Village v Suriname, Inter-Am. Ct.H.R., Series C, No. 124, 15 June 2005 (that was cited in Šilih at §117) and Sankara v Burkina Faso, HRC Comm. No. 1159/2003, 28 March 2006 (ibid §113). Both of those cases touch upon the core injustice in this case, that the State continues formally to stand by an official account of the killings that is wrong and commits a continuing human rights violation by virtue of the failure to retract it. Indeed, it is an irony that comparative case-law as to the ‘detachable’ nature of the investigative obligation is what has assisted the ECtHR in adopting such an approach to Article 2, so it is odd and unsatisfactory to regard international law as recognising a merely parasitic investigative obligation.
UNJUSTIFIED EXERCISE OF DISCRETION
68. Compelling reasons are required to justify the reasonableness of a decision that touches upon fundamental rights: see especially R v Lord Saville of Newdigate ex parte A  1 WLR 1855, §37 and R (ABCIFER) v SSD  QB 1397 §32-37. The Appellants reserve the argument, should this case reach the Supreme Court, that the principles and standard of review of an exercise of discretion in the present context are those of proportionality review.
69. The discussion of the factual material by the Divisional Court is an important starting point because it is far more detailed and far-reaching than the analysis that the Respondents embarked upon in order to make their original decisions. The reasons for the Divisional Court’s decision, in upholding the Defendants’ exercise of discretion in refusing any further investigation, were as follows:
(1) A premise. The Court held (emphasis added) that (a) “it would appear to be very difficult at this point of time to establish definitively whether the men were shot trying to escape or whether these were deliberate executions” (Judgment §159) and (b) “it would not be possible to conclude definitively that the use of force had been disproportionate” (Judgment §161). This was the context for the resolution characterised as ‘impossible’ in the judgment on Consequential Matters at §6 (A1/C/43); that there is “a conflict of evidence which is now impossible to resolve”.
(2) A conclusion. On this basis, the Court concluded that the force of each important public interest reason for an inquiry was greatly weakened: see the discussion of understanding and catharsis (Judgment §165), reassurance and public confidence (Judgment §§167-168), accountability (Judgment §169) and promoting race relations (Judgment §172). None of these were regarded as cogent given the perceived inability to “conclude definitively”. On this “analysis”, the discretionary decision could not be said to be unreasonable (Judgment §176).
70. The Court of Appeal is invited to take a different view, on what are objective questions of assessment for the reviewing Court, by reference to three things:
(1) The question of the ‘shot trying to escape’ thesis. See §71 below.
(2) The question of a necessary and proportionate use of fatal force. See §72 below.
(3) The question of prospective doubts about findings which may be made “definitively”. See §73 below.
71. The first question concerns the perceived inability to make findings in relation to ‘shot trying to escape’.
(1) The Divisional Court identified the evidence which is said to be capable of supporting that thesis (Judgment §139). However, it is in fact little more than: (a) the official account that was given to explain the killings at the time and (b) the maintenance of that official account by some of the soldiers in the 1970s. Against that, there is powerful evidence regarding execution (Judgment §138), as has been seen from the factual context.
(2) The ‘escape’ narrative simply does not stack up. For example, there is the reference by Sir Stafford Foster Sutton of having uncovered a “bona fide mistake” (Judgment §35ii). The idea of a “mistake” was never compatible with the official account: see §17 above. The references to a “mistake” mean the official account is unsustainable and must have been recognised as unsustainable. No answer has ever been given, or even suggested, to this point.
(3) Then there is the reference to the death-toll of “bandits” (A2/Q/1 and Q/3 and Q/13), as the chosen characterisation of people who were villagers working on a plantation said to be raided by bandits for food. Why, unless what was happening was the official account rewriting the facts?
(4) Then there is the inexplicable release ‘onto the verandah’ of the entire group of men. What was happening? And why? This was a group supposedly “to be taken back to base for interrogation” (Judgment §30i). That would have meant going to the town, and that meant getting there. But the only vehicle was the lorry that was full of women and children and it was going back to the village (Judgment 29viii). The soldiers had no other vehicle (Judgment §39ii). They weren’t being released ‘onto the verandah’ so that they could be escorted to a vehicle in order to be taken away. The soldiers were ready for the women and children to be taken away. They were ready to burn the village to the ground. They weren’t willing for the men simply to walk or run away from the village into the jungle. So, what were they doing with the men? The answer is obvious: they were wiping out the men, just as they were wiping out the village. They were removing the men, by eradicating them. No answer has ever been given to this obvious point: why a release ‘onto the verandah?’
(5) Nobody has ever appraised this evidence so as to arrive at conclusions, and the Court did not see it as its role (Judgment §137). Not even the most basic of steps – examination of the human remains to see what the pattern of gunshot wounds is, where and from what range – has been undertaken. Yet examination of human remains is known to be possible, and could be so very revealing. Suppose it found examples of close-range shots to the back of heads? That would, of itself, vindicate the Appellants and their supporters, restore the name and reputation of the men who were killed, and open the door for truth and reconciliation.
(6) The Court reasoned that “a very possible outcome” was that it would be concluded that it is “at this point in time on the evidence impossible to say whether the men were deliberately executed by the Scots Guards or that they were shot trying to escape” (Judgment §161). But that is not a reason not to try. It does not make it “impossible” to reach any conclusions, nor does it mean that there are no “reasonable prospects” of doing so (Judgment §167).
(7) Overall, it is not at all “impossible” to suppose that a conscientious independent inquiry could properly state its conclusions on the evidence, saying with what degree of confidence they had been arrived at.
72. The second question concerns whether conclusions could be arrived at as to the necessity and proportionality of shooting all 23 men until they were dead. It was, with respect, wrong to characterise this case as purely escape versus execution. An inquiry could take the ‘escape’ hypothesis and conclude that the force used was manifestly unreasonable. Such a ruling would not cause the inquiry to make determinations of criminal or civil liability (R (Jordan) v Lord Chancellor  2 AC 226 at §39). Moreover, the benefit of such a public finding would itself grant to the survivors and relatives a form of ‘closure’ to this matter that would be enormously valuable.
(1) The Divisional Court recognised that proportionality was a relevant and applicable legal standard at the relevant time (Judgment §145) (see the review of the history of homicide in R v Clegg  1 AC 482). As it found, “no consideration” had been given to the absence of proportionality “in circumstances where every single person was killed rather than some being wounded” (Judgment §143). And, as the Court explained, it was “difficult to see” how an extant general order to shoot escaping prisoners could be legally justified. So, the Claimants had made “Plainly … a powerful case” (Judgment §146).
(2) Here, unlike the question of executions versus escape (Judgment §§138-139), nothing was identified which could support the thesis that it was necessary and proportionate to shoot at this group of villagers – many of them elderly (a “range of ages” up to 70) (Judgment §29(i)) – until each and every one of them was dead. Here, the cupboard is bare. In fact, it is impossible to see how the conclusion could be reached that this could have been a necessary and proportionate means to “effect the arrest” (Judgment §145).
(3) The reliance on ‘escape’ is eerily similar to the explanation that was used to justify the final assault on Baha Mousa (he too was said to be trying to escape); but in both cases the victims had been subjected to considerable abuse while in UK army detention for many hours before the fatal force was ultimately used upon them. In this case “there were simulated executions to frighten, causing trauma” (Judgment §29). There could be little doubt that the prisoners who were removed from the hut were justifiably terrified.
(4) An examination of the human remains would readily confirm whether any villager was ‘finished off’ by close-range bullets to the head. There are a number of soldiers who told the police in 1970 that this had occurred. That would conclusively rule out the thesis of proportionate prevention of escape.
(5) The soldiers had no way of getting villagers, still less injured ones, back to base. They were about to burn the village to the ground. On no basis is lack of proportionality an impossible conclusion for any independent appraiser of the evidence seeking to draw conclusions and contribute to the public interest in truth and reconciliation. On the contrary, if anything it is impossible to see how proportionality is a possible one.
73. The third question concerns the Divisional Court’s focus on whether findings could be made “definitively”.
(1) The source of a test of ‘definitiveness’ is not identified. It was not put forward or referenced by the Respondents. The correct position is that the functions of an inquiry (Judgment §157) are not contingent upon embarking with a satisfaction that “definitive” determinations on questions of fact can be made. There are degrees of clarity and confidence and it would be for the inquiry to state the degree to which it was able to make its findings and conclusions. And there are broader public interest considerations which relate to an independent body undertaking the task. These public interest imperatives are not satisfied by gently allowing the matter to drop, to be “quietly forgotten”.
(2) This is what distinguishes an inquiry from courts, and from prosecutorial decisions, where it may be said prospectively that there is no realistic prospect of a criminal court, applying a criminal standard, finding “definitively” that a crime such as murder has taken place. So, for example, the Bloody Sunday Inquiry Panel recognised that: “Unlike the courts it cannot decide the guilt (or innocence) of any individual or make any order in its report. Our task is to investigate the events of Bloody Sunday, to do our best to discover what happened on that day and to report the results of our investigations.” (ruling of 11.10.04, applying the Shipman ruling of Dame Janet Smith: “In an enquiry such as this, there is no required standard of proof”). As Sir William Gage explained in the Baha Mousa Inquiry (ruling 7.5.10), he would “record the level of satisfaction which I find established in relation to any finding of fact”. Most recently, the Hillsborough Independent Panel sought to report on “how the information disclosed adds to public understanding of the tragedy and its aftermath”.
(3) The common law recognizes the restorative justice capacity of a public, accountable and inclusive process, even when the definitive determination of criminal or civil liability is not necessarily relevant: R. (Amin) v Secretary of State for the Home Department  1 AC 653 §16; R (Lin) v Secretary of State for Transport  EWHC 2575 (Admin) §51; and R v Secretary of State for Health ex parte Wagstaff  1 WLR 292 at 312. The restorative function discharged by the Hillsborough Independent Panel is a timely indication as to why this is the case. This aspect of the domestic common law chimes with the evolving ECHR case-law (and particularly Šilih at §163 and Janowiec at §139) that recognizes the need to investigate certain matters whether there is an extant procedural basis to do so, or otherwise. This insight, moreover, explains why the trigger for investigation is that there is an arguable violation of the right to life implicating the State. The test has never been whether there is a prospectively-appraised capacity to make “definitive” determinations of fact. Moreover, the approach of a human rights based investigation is not designed to apply an ordinary approach to individual liability. Accountability lies in process, in the quest for truth. These matters have been definitively examined in the recent decision of the Grand Chamber in El-Masri v The Former Yugoslav Republic of Macedonia, App. 396330/09, 13 December 2012, §151-153 and 190-192. The phrase used in Janowiec at §139 is also revealing: the Strasbourg Court has emphasised whether there is “information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further”. None of this speaks of prospective confidence in being able to decide issues “definitively”, and there is good reason in principle why that is so.
74. Turning to the Divisional Court’s conclusion (see §69(2) above: the weakened force of the public interest considerations), the Appellants invite this Court to reach a different view of what is another objective question for the reviewing Court:
(1) The premise, as has been outlined above, is not a sound one.
(2) In any event, the conclusions ought not to follow. Whether or not “a very possible outcome” (or even a likely one) is that a definitive conclusion would not be arrived at (on some or even all of the key questions), that does not undermine the importance of this matter or the significance of investigating the evidence and seeking to reach conclusions.
(3) For example, the significance of the fact that the “voice of the inhabitants of the village had never been heard” does not mean that the only weighty public interest in an independent British inquiry finally doing so rests in a prospective judicial appraisal of what will or may or might be (or not be) found. Similarly, to undertake and follow through an investigation – undeterred by anxieties as to whether a definitive determination is likely – is to identify a process the pursuit of which serves to provide reassurance and rebuilds public confidence. The same goes for promoting good race relations.
(4) This, again, is why the jurisprudence relating to the investigative duty poses the question whether it is arguable that deaths have taken place at the hands of the State. The public interest is not answered by a prospective scepticism as to whether findings of impropriety will be able to be made.
(5) Here, there are 568 organisations in Malaysia who support the investigation that is sought (Judgment §6). Their quest raises very strong public interest considerations, which can be seen to demand that the matter not be allowed to rest. Theirs is not a pointless or unrealistic call for a due investigative process.
(6) That is especially so after so many unsatisfactory previous curtailments. From Sir Stafford’s “attitude and … failure to take evidence from inhabitants”, which “cannot be justified” (Judgment §§35(i), 147); his disregard of the two contemporaneous statements of Cheung Hung given in 1948 (Judgment §36(i)); the indicia of a cover-up, a suggestion “properly made on the evidence” (Judgment §153); the 1970 curtailment of any inquiry, “much more difficult to justify” (Judgment §155); the deliberate inertia in the 1990s: “as much delay as possible” and “an uncooperative attitude” (Judgment §156) giving “virtually no assistance” (Judgment §79).
75. In all the circumstances, the Appellants submit that permission to appeal should be granted, and their appeal allowed.
MICHAEL FORDHAM QC
11 January 2013
 See Claimants’ Skeleton Below, §2.8 to 2.19 (A1/B/9-14).
 See Skeleton Below, §2.20 to 2.79 (A1/B/14-35).
 See Skeleton below, §2.80 to 2.178 (A1/B/35-62).
 See Skeleton below, §2.178 to 2.206 (A1/B/62-70).
 See Skeleton Below, §2.207 to 2.246 (A1/B/70-81).