Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69

Relatives and representatives of people killed by British soldiers at Batang Kali in Malaya in 1948 sought a public inquiry. They disputed the official account and relied on later evidence and the inadequacy of earlier investigations. The responsible Secretaries of State declined to establish the requested inquiry. The claimants sought judicial review, relying on Article 2 of the Convention, international law and common law grounds. The appeal therefore concerned the legal consequences of a historical event predating the Convention framework and the lawfulness of the present refusal to investigate further.

Whether domestic law required a further investigation into the Batang Kali killings and whether the refusal was unlawful under Article 2 or common-law judicial review.

The Supreme Court dismissed the appeal by a majority. It rejected the claimed obligation under Article 2 in the temporal circumstances and did not find an enforceable international-law duty requiring the requested inquiry. The majority also upheld the refusal under the applicable common law approach. The Court declined to decide through this appeal that proportionality should replace rationality generally as a ground of judicial review. Lady Hale dissented on the common law assessment, considering that the decision had failed to weigh important purposes and benefits of an inquiry. The outcome concerned a present duty and review of the refusal, not a determination that the 1948 killings were lawful or that the families’ concerns lacked substance.

In the case of Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, it was established that there was no legal duty to hold a public inquiry into the mass shooting by British soldiers. This appeal concerned the jurisdiction of the European Convention on Human Rights, and common law.

Keyu illustrates the separate hurdles of temporal Convention jurisdiction, customary international law and common law review. The gravity of an alleged historical atrocity does not by itself resolve whether a present enforceable duty to investigate exists. The Supreme Court also declined to replace rationality review generally with proportionality on this appeal. Lady Hale’s dissent on the refusal’s rationality remains a distinct position. The judgment should not be portrayed as determining that the alleged killings were lawful or that historical investigations are never required.