Wednesday, 25 November 2015

A moral but not legal victory in the Supreme Court

It is a truism that law and morality do not always march hand in hand.

On 11-12 December 1948, at Batang Kali (in Selangor Province, Malaya), 23 unarmed civilians were killed by British troops.  At the time, Malaya was a British Colony.  The British government adopted the stance that the men had been killed "trying to escape" and this has been consistently maintained despite evidence emerging over the years that it was far from the truth.  The British government also refused to instigate an official inquiry into the matter.  This refusal became the subject of a judicial review that began in the Queen's Bench Division (judgment), proceeded to the Court of Appeal (Civil Division) (judgment) and then to the Supreme Court of the UK.  The judicial review is confined to the legality of the decision not to instigate an inquiry.

In the most simple terms,
the Supreme Court held (a) that the UK government (and not the Malaysian government) was responsible for the actions of the soldiers and (b) that the government was not under any legal obligation to hold an inquiry.  Nevertheless, it is clear from the court's judgment (as well as the judgments of the courts below) that the "trying to escape" stance cannot be truly supported.  The moral victory rests with the appellants who are relatives of the victims.

The Supreme Court's judgment: Keyu and others (Appellants) v Secretary of State for Foreign and Commonwealth Affairs and another [2015] UKSC 69.   A Press summary is available and the judgment may also be read via Bailii.

Lady Hale (dissenting) would have allowed the appeal on the basis that the Secretaries of State did not take into account all the possible purposes and benefits of an inquiry and so they had reached a decision that was not one which a reasonable authority could reach - paras. 309-13 of the judgment.  This is the classic Wednesbury reasonableness test adopted by the common law.

The solicitors in the case - Bindmans LLP - have issued a Media Statement following the Supreme Court's judgment.

History Today - Batang Kali

The families’ lawyer, John Halford of Bindmans LLP said:

“On 12 December 1948 British soldiers left the bodies of 24 innocent, unarmed men riddled with bullets and the British government left their families without a credible explanation. Our courts have decided there is no legal right to that explanation.  But they have been able to acknowledge the innocence of those killed, the failures to investigate and the ‘overwhelming’ evidence of mass murder.  Just as importantly, Britain has been found responsible. All of this creates the clearest of moral imperatives on the British government to apologise,  withdraw the  false account given to Parliament and to compassionately address what has been done, including by funding a memorial. If it does not, the blood of those killed at Batang Kali will indelibly stain the concept of British justice.”

That is, with the greatest respect, the least that the British government should do. 

Lord Neuberger - at para. 137

It is not as if the appellants have got nowhere: in these proceedings, the Divisional Court, the Court of Appeal and now this court have all said in terms that the official UK Government case as to the circumstances of the Killings may well not be correct and that the Killings may well have been unlawful. And the events of 1969-1970, at least to large extent, speak for themselves.

Lord Kerr at para. 285

With regret, I have concluded that the appeal cannot succeed. This is an instance where the law has proved itself unable to respond positively to the demand that there be redress for the historical wrong that the appellants so passionately believe has been perpetrated on them and their relatives. That may reflect a deficiency in our system of law. It certainly does not represent any discredit on the honourable crusade that the appellants have pursued.

An interesting post on the case is at UK Constitutional Law Group Blog - Rylatt and Tomlinson: Neuberger's Novelties: Keyu and the substantive review debate.


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