The Court of Appeal in Keyu v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 312;  WLR (D) 138 dismissed an application by the claimants for a public inquiry or similar investigation into events that occurred on 11/12 December 1948 when a patrol of the Second Battalion of the Scots Guards shot and killed 24 civilians at the Batang Kali rubber plantation on the Sungei Remok Estate, in the State of Selangor, which was a British Protected State within the former Federation of Malaya.
Dismissing the appeal against the Divisional Court’s refusal to grant the claimant’s application, Maurice Kay LJ, giving judgment for the court, held that:
(a) The Convention for the Protection of Human Rights and Fundamental Freedoms (specifically, Article 2) did not create an obligation on the Secretary of State for Foreign Affairs or the Secretary of State for Defence to conduct an inquiry into death occurring in Malaya in 1948 before the Convention was adopted and acceded to by the UK; and
(b) No duty arose under customary international law which could be enforced at common law; and
(c) The decisions of the the Secretaries of State to exercise their discretion not to establish a public enquiry were not vitiated on public law grounds.
The Court’s decision as to (a) whether the Convention created a duty to conduct an inquiry and (b) whether there was no duty to do so under customary international law affirms that of the decision of the Divisional Court ( EWHC 2445 (Admin);  WLR (D) 261).