Failings and fallout

David Watts considers the recent verdict by Britain’s Supreme Court on a notorious 67-year-old event, and the future repercussions of the case for inquiries into killings during Northern Ireland’s Troubles.

 

The UK Supreme Court has ruled that the British Government remains legally responsible for the events of December 1948, when Scots Guards killed 24 unarmed civilians in Batang Kali, Selangor, but need not hold a public inquiry to establish the truth.

The applicants are considering an appeal to the European Court of Human Rights.

Selangor was then part of colonial Malaya and the troops had been deployed to assist the local administration in tackling insurgent activity. The killings were described as a military victory at the time and the official account that they were necessary and lawful has been maintained for decades, despite six of the soldiers involved confessing to murder in 1970. One of the five judges, Lady Hale, dissented. She concluded that refusal of an inquiry was a decision no ‘reasonable public authority could reach’ (para 313).

One of the majority Justices, Lord Kerr, described the case as ‘shocking’, adding that the ‘overwhelming preponderance of currently available evidence’ showed ‘wholly innocent men were mercilessly murdered and the failure of the authorities of this state to conduct an effective inquiry into their deaths’ (para 204).

Another, Lord Neuberger, commented that ‘the evidence which first came to light in late 1969 and early 1970 plainly suggested that the Killings were unlawful’ (para 75) and ‘a war crime may have been committed’ (para 136).

Lord Kerr’s judgment concluded by expressing regret at the majority’s decision. He added (para 285): ‘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.’

The families of those killed expressed disappointment with the decision, but relieved the case had reached the UK's highest court
The families of those killed expressed disappointment with the decision, but relieved the case had reached the UK’s highest court

The families of those killed and supporters from the Action Committee Condemning the Batang Kali Massacre expressed disappointment with the decision but relief that their 67-year journey seeking redress had led to the UK’s highest court, affirming the innocence of the victims, discrediting the official account of the killings, and rejecting the government’s attempt to evade legal responsibility. They added that they were considering petitioning the European Court of Human Rights, but renewed their pleas to the government for a compassionate and dignified solution, including an apology, withdrawal of the official account in Parliament and funding for a memorial to the massacre victims. During the course of the case, NGOs including Amnesty International have pressed ministers to resolve matters in negotiation with the families, but were told that nothing would be done pending the judgment. Northern Ireland’s attorney general, John Larkin QC, and several Northern Irish human rights groups intervened on different sides in the case because of the precedent it would set for the official duty to investigate legacy cases from the Troubles.

The impact of the ruling will be considered by the government and authorities in Belfast. While there have been inquiries into Bloody Sunday and several other controversial killings, many deaths caused by the armed forces and police in Northern Ireland are still the subject of long delayed inquests.

There have been calls for public inquiries into the so-called Ballymurphy massacre in August 1971, when ten people were killed by soldiers in west Belfast and into alleged collusion between police and loyalist paramilitaries in mid-Ulster during the mid-1970s.

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

‘On 12 December 1948 British soldiers left the bodies of 24 innocent, unarmed man 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.’

Legal Notes

  1. The 313-paragraph judgment reveals stark differences of approach between members of the Court and state responsibility was the only issue on which the Court was unanimous: the five Supreme Court justices backed the earlier decisions of five Divisional Court and Court of Appeal judges, unequivocally rejecting the British Government’s argument that the Selangor Sultan, Federation of Malaya and, after 1957, the Malaysian Government were legally responsible for the soldiers’ actions.
  2. However, despite the evidence of unlawful killings, the majority of the Lord Justices held that there was no duty for the British Government to hold a public inquiry under Article 2 of the European Convention on Human Rights which came into force for the United Kingdom on 3 September 1953, and was extended to Malaya on 23 October 1953. The majority held that the families had satisfied some of the criteria for an inquiry laid down by the European Human Court of Human Rights in the 2014 Janowiec v Russia case, particularly that ‘there had been no prior full or public investigation of the Killings’ before 1970 and ‘the evidence which first came to light in late 1969 and early 1970 plainly suggested that the Killings were unlawful’. However, they held that killings had to have occurred within ten years of the ‘critical date’ on which the UK first recognised the right of individual citizens to petition the European Human Right Court in relation to the alleged infringements of their Convention rights, which is 13 January 1966. The Batang Kali Massacre, which occurred in 1948, therefore fell outside this ten-year retrospectivity period.
  3. The other two Supreme Court Justices disagreed with this approach. Lord Kerr’s view was that there was unclear Court of Human Rights case law on the point. The dissenting Justice, Lady Hale considered that logic favoured the critical date being the UK’s agreement to be bound by the Convention in international law, ie 1953. Three Lord Justices in the Court of Appeal below had taken the same approach.
  4. The majority went on to decide that the families should have brought their claim within six months to one year from 1970, although the judges admitted that this finding is ‘somewhat harsh on the facts of this case’.
  5. The other two judges disagreed on the basis that this assessment was very much a matter of individual judgment and ‘influenced by hindsight’ because new and credible material which undermined earlier findings only came to light in 2009, after the families secured access to UK and Malaysian police files through their lawyers and the incident was exposed by investigative journalists Ian Ward and Norma Miraflor in their book Slaughter and Deception at Batang Kali.
  6. The dissenting judge, Lady Hale, also found that the British Government ‘did not take into account all the possible purposes and benefits of an inquiry and reached a decision which was not one which a reasonable authority could reach’. This meant the decision of refusing to conduct a public inquiry or some other forms of investigation was one that no rational government could reach and unlawful at common law.
  7. Lady Hale held that the British Government should have taken into account:

(i) The enormity of what is alleged to have taken place. If the guardsmen did indeed kill innocent and unarmed villagers in cold blood, then even by the different standards of the time, this was a grave atrocity which deserves to be acknowledged and condemned.

(ii) The inadequacy of the initial investigation. There were many people present at the scene who could have been asked for their accounts. It was totally unacceptable to assume that the guardsmen and their police escorts were telling the truth but that survivors and civilian eye-witnesses would not do so.

(iii) The weight which should be accorded to the confessions made in 1970. Although originally given to a newspaper, four were repeated under caution to the police. They were enough to cast serious doubt on the official account and to prompt a serious police inquiry.

(iv) The premature termination of that inquiry, which was obviously being conscientiously conducted by [chief detective] DCS Williams, and his view that this was a political decision—unsurprising given that it happened very shortly after the change of government in 1970.

(v) The evidence obtained from the Royal Malaysian Police inquiry in the 1990s. Although some of the relatives and survivors had previously given their accounts to others, this evidence had only recently come                     to light.

(vi) The petering out of that inquiry, in the face, it would appear, of an unhelpful attitude of the British authorities when the Malaysian Police wished to pursue their inquiries here.

(vii) The thorough analysis of all the available evidence in Slaughter and Deception at Batang Kali. The authors did have a particular point of view, being determined to undermine the official account, but they collected together a great deal of information and analysed it in great detail.

(viii) The evidence from the archaeologist, Professor Black, as to what exhuming and examining the bodies of the deceased could show and how it would help in determining the facts.

(ix) The persistence and strength of the injustice felt by the survivors and families of the men who were killed, which has led them twice to petition the Queen and to launch these proceedings.

  1. Lady Hale went further and said that ‘a rational decision-maker would then consider the advantages of some sort of inquiry’, in summary:

(i) The very real possibility that, despite the difficulties, conclusions could be drawn about what is most likely to have happened.

(ii) The importance of the British authorities, at long last, seeking to make good the deficiencies of the past inquiries and the very real benefits this could bring in terms of catharsis, accountability and public confidence, whether or not firm conclusions could be reached.

(iii) If firm conclusions could be drawn, the huge importance of acknowledging what had gone wrong and setting the record straight.

  1. In this case, Lady Hale found that the British Government ‘did not seriously consider the most cost-effective form which such an inquiry might take’. They did not seriously consider the ‘bigger picture’: 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—as counsel put it, balancing the prospect of the truth against the value of the truth.”
  2. She concluded that she would have allowed the families’ appeal.

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