Supreme Court refuses appeal for inquiry into 1948 Batang Kali 'massacre'

The government remains legally responsible for the deaths of 24 unarmed civilians in the village of Batang Kali, Selangor, by members of the Scots Guards, the Supreme Court has ruled.

However, the court also held that the government need not hold a public inquiry into the contentious series of events that took place in December 1948.

The UK government sent troops to modern day Malaysia in 1948 in response to an insurgency. On 11-12 December 1948, a patrol of Scots Guards killed 24 civilians. The killings were described as a military victory at the time.

Following statements that the deceased had been 'massacred' on orders, however, the Metropolitan Police opened an investigation in 1969, which was then terminated in 1970 despite six soldiers confessing to murder.

Allegations of unlawful killing resurfaced in 1992 with the broadcast of a BBC documentary. An investigation was started by the Royal Malaysian Police in July 1993 but subsequently closed in 1997.

The appellants, who are related to one or more of the victims, applied for judicial review, arguing that an inquiry was required under article 2 of the European Convention on Human Rights and under the common law.

The Supreme Court held the UK was responsible for the killings. Lord Neuberger said that the evidence 'plainly suggested that the killings were unlawful' and 'a war crime may have been committed'.

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'.

However, the court found that the killings occurred over a decade before the right of petition to the European Court of Human Rights was recognised by the UK.

Lord Kerr expressed regret that 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,' he added.

Dissenting from the majority judgment, Lady Hale concluded that refusal of an inquiry was a decision no 'reasonable public authority could reach'.

The families of those killed expressed disappointment with the decision but relief that their 67-year fight for justice had led to the UK's highest court affirming the innocence of those killed and rejected the government's attempt to evade responsibility.

While confirming they were considering a petition to Strasbourg, the families renewed their pleas for the government to issue an apology, withdraw the official account to parliament over the killings, and fund a memorial to the victims.

A number of NGOs, including Amnesty International, have pressed ministers to negotiate with the families, but were told nothing would be done pending the judgment.

John Halford, a partner and joint head of the public law and human rights team at Bindmans, 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.'

John van der Luit-Drummond is deputy editor for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD