• 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.

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

  • Keyu applied for an inquiry into the mass shooting of unarmed civilians by British soldiers in Malaysia, 1948
  • The Secretary of State refused to hold such inquiry
  • Keyu sought judicial review of this decision, on the basis of:
    • Article 2 ECHR,
    • International law incorporated into domestic law, and
    • Disproportionate action

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

  • Was the SoS wrong in their refusal?

Held by the Supreme Court

Appeal dismissed. No fundamental right had been violated by the SoS, and the decision was found to be rational.

Lord Neuberger

Two requirements must be satisfied before the Article 2 investigation duty may arise [72]:

  1. “relevant “acts or omissions” after the critical date,”
  2. “a “genuine connection” between the death and the critical date”

However the latter “may be finessed where it is necessary to underpin “the underlying values of the Convention””

The appellants contended the 4-stage test Sumption L and Reed L determined in Bank Mellat [2013] should be used in place of the rationality one. However this is not appropriate for the current sitting justices in the case to accept. Rather than the 5 sitting, it should be reargued before a panel of 9 due to the potential profound constitutional implications and wide applicable scope. [131]

Lord Mance

All of the Justices agreed with Mance L on the jurisdiction issue:

  • “The issue of jurisdiction has two strands: the first, whether the United Kingdom can be said to have been responsible for whatever happened in Batang Kali on 11/12 December 1948; the second, whether it can be held responsible for not holding an inquiry now.” [152]

Strand 1 comment:

  • “can the United Kingdom be regarded as responsible for failure to hold an inquiry into deaths which occurred in December 1948 before the Convention was in force at all, let alone extended to the Federation? I have concluded that the deaths in December 1948 would have occurred within the United Kingdom’s jurisdiction within the meaning of art 1, had the Convention been in force in Malaya in 1948” [190]

Strand 2 comment:

  • “if an inquiry were required by reference to international law and/or as a matter of purely common law judicial review, the United Kingdom could not be expected to do more than was feasible” [201]

Both strands were rejected.

Baroness Hale Dissenting

Rationality view: the bigger picture was not considered by the SoS [312]

  • “the public interest in properly inquiring into an event of this magnitude; the private interests of the relatives and survivors in knowing the truth and seeing the reputations of their deceased relatives vindicated; the importance of setting the record straight”
  • I.e. “balancing the prospect of the truth against the value of the truth”