Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another: SC 25 Nov 2015

The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in Selangor.
Held: A requirement for a public or other inquiry was not imposed. (Baroness Hale of Richmond DPSC dissenting).
In the case of a death before the date on which the relevant state contracted to the Convention, two criteria must be satisfied before the article 2 investigation duty can arise, namely (i) relevant ‘acts or omissions’ after the critical date, and (ii) a ‘genuine connection’ between the death and the critical date. However the second criterion may be finessed where it is necessary to underpin ‘the underlying values of the Convention’. The evens had taken place before the Convention and there was no supervening event to create any obligation after the Convention came into effect. Customary International law had not developed to impose such an obligation, and even if it had, that could not be incorporated into our common law so as to displace clear statute obligations.
The Court considered the incorporation of customary international law into our own law: ‘Even if this conclusion turned out to be wrong, and it is now a principle of customary international law that a state must investigate deaths such as the Killings, even though they occurred as long ago as 1948, it would not be right to incorporate that principle into the common law. Parliament has expressly provided for investigations into deaths (i) through the coroners’ courts in the Coroners and Justices Act 2009, and its predecessors, and (ii) through inquiries in the 2005 Act, and its subject-specific predecessor statutes. It has also effectively legislated in relation to investigations into suspicious deaths through the incorporation of article 2 in the 1998 Act. In those circumstances, it appears to be quite inappropriate for the courts to take it onto themselves, through the guise of developing the common law, to impose a further duty to hold an inquiry, particularly when it would be a duty which has such potentially wide and uncertain ramifications, given that it would appear to apply to deaths which had occurred many decades – even possibly centuries – ago.’
An inquiry into the proportionality of a decision should not be confused with a full merits review: ‘a review based on proportionality is not one in which the reviewer substitutes his or her opinion for that of the decision-maker. At its heart, proportionality review requires of the person or agency that seeks to defend a decision that they show that it was proportionate to meet the aim that it professes to achieve. It does not demand that the decision-maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Hughes
[2015] UKSC 69, [2016] AC 1355, [2015] 3 WLR 1665, [2015] WLR(D) 487, 40 BHRC 228, [2016] HRLR 2, UKSC 2014/0203
Bailii, WLRD, Bailii Summary, SC, SC Summary
European Convention on Human Rights 2, Inquiries Act 2005 1, Human Rights Act 1998, Coroners and Justices Act 2009
England and Wales
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
At first instanceKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another Admn 4-Sep-2012
It was said that a squad of the British army had caused the deaths of 24 civilians in 1948 in Batang Kali (now part of Malaysia.
Held: No inquiry was required. It was a matter of discretion, and there were no sustainable reasons for . .
Appeal fromKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another CA 19-Mar-2014
In 1948, there had been an incident in what later became part of Malaysia, in a counter insurgency patrol, when 24 civilians were said to have been killed by a patrol from the Scots Guards. The claimant now appealed against the refusal of a further . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedSilih v Slovenia ECHR 9-Apr-2009
(Grand Chamber) Article 2 imposes, in certain circumstances, a freestanding obligation in relation to the investigation of a death which applied even where the death itself had occurred before the member state ratified the Convention.: ”The court . .
CitedJanowiec And Others v Russia ECHR 21-Oct-2013
ECHR Grand Chamber – Article 3
Inhuman treatment
Positive obligations
Alleged failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyn in 1940: no . .
CitedBlecic v Croatia ECHR 8-Mar-2006
The applicant alleged that her rights to respect for her home and to peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy.
Held: Ratione temporis, the court had had no . .
CitedBrecknell v The United Kingdom ECHR 27-Nov-2007
Allegations had been made about police collusion with killings in Northern Ireland.
Held: Where there was credible information as to a possible perpetrator of an unlawful killing, there was a duty to investigate that evidence. Here the . .
CitedVarnava And Others v Turkey ECHR 18-Sep-2009
(Grand Chamber0 Turkey had failed to investigate the disappearance of individuals in Northern Cyprus in 1974. Turkey had ratified the Convention in 1954, but had only recognised the right of petition in 1987.
Held: (Grand Chamber) ‘the court . .
CitedHalide Cakir And Others v Cyprus ECHR 29-Apr-2010
Admissibility. It was said of the events in Cyprus in 1974 there had been a failure by the state to investigate unlawful killings. The court repeated the Grand Chamber’s formulation of the relevant law in Silih and Varnava, and then pointed out that . .
CitedAntonio Gutierrez Dorado and Carmen Dorado Ortiz v Spain ECHR 27-Mar-2012
. .
CitedJelic v Croatia ECHR 12-Jun-2014
ECHR Article 2-1
Effective investigation
Prosecution of officer with command responsibility, but not of direct perpetrators of killing: violation
Facts – In November 1991 the applicant’s . .

Cited by:
CitedAl Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
CitedPoshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
CitedMichalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
CitedBashir and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2018
(Interim Judgment) The respondent asylum seekers had been rescued in the Mediterranean and taken to an RAF base in Akrotiri on Cyprus, a sovereign base area. The court was now asked whether they were entitled, or should be permitted, to be resettled . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.554900