Principle or pragmatism? The Supreme Court’s judgment in Keyu and others v Secretary of State for Foreign & Commonwealth Affairs

On 25 November, the Supreme Court held in Keyu and Others v Secretary of State for Foreign & Commonwealth Affairs [2015] UKSC 69 that the Foreign & Commonwealth Office was not under a duty, under Article 2 ECHR or domestic law, to hold an inquiry into the circumstances in which 24 unarmed rubber plantation workers were shot dead by British soldiers in 1948 during the emergency in Malaya. The issue in question, of when a state is under a duty to investigate historical events under Article 2 or 3 of the European Convention on Human Rights (ECHR), is increasingly relevant in a myriad of contexts today, including the holding of fresh inquests where new evidence has emerged (see the High Court of Northern Ireland’s recent judgment in Finucane’s (Geraldine) Application), accountability for death and mistreatment in the British colonies (see the Mau Mau litigation) and the prosecution of sexual offences carried out years ago. So what does Keyu add to this developing area?

The claim was brought under several grounds, and the judgment contains interesting dicta on a number of issues, including whether the Wednesbury ‘reasonableness test’ should be replaced by a proportionality test (on which there has been commentary elsewhere, see here), and the extent to which UK human rights jurisprudence should ‘mirror’ that of the ECtHR with regard to temporal jurisdiction. But the main argument in the case, and the focus of this post, is the claim brought under Article 2 ECHR. On this the Court was unanimous, albeit for different reasons.

The ECtHR’s criteria on temporal jurisdiction

In examining the Article 2 claim, the Supreme Court had to apply the complex and unique rules created by the European Court of Human Rights (ECtHR) to circumscribe the limits of its temporal jurisdiction in relation to deaths that took place before the state concerned became a party to the ECHR. The ECtHR has held that while it will not have jurisdiction ratione temporis over the substantive interference of Article 2 involved in such deaths by virtue of the non-retroactivity principle, the procedural obligation to conduct an effective investigation into the deaths is detachable from the substantive interference for the purposes of its jurisdiction ratione temporis (Silih v Slovenia).

The ECtHR has created three criteria to govern the circumstances in in which the procedural obligation to investigate will fall within its jurisdiction ratione temporis:

‘First, where the death occurred before the critical date, the court’s temporal jurisdiction will extend only to the procedural acts or omissions in the period subsequent to that date. Secondly, the procedural obligation will come into effect only if there was a ‘genuine connection’ between the death as the triggering event and the entry into force of the Convention. Thirdly, a connection which is not ‘genuine’ may nonetheless be sufficient to establish the court’s jurisdiction if it is needed to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective way’ (para 141 of Janowiec & Others v Russia).

The ECtHR has also held that in order to meet the second ‘genuine connection’ criterion, the gap between the critical date and the death in question must be no more than 10 years (Janowiec, para 146).

In Keyu, the Article 2 claim turned to a significant extent on whether the ‘critical date’ referred to by the ECtHR when establishing these criteria was, for the purposes of the UK, the date on which the UK made a declaration accepting the right of individual petition before the ECtHR (1966) or the date when the UK became a party to the Convention (1953). For the majority of the 47 contracting states to the ECHR this issue does not arise, as the two dates coincide. But for 15 contracting states, including the UK, the right of individual petition was not accepted until some time after the state in question became a party to the ECHR.

The ECtHR’s case law on this technical yet pivotal point is inconsistent and can be interpreted either way. That is exactly what the Supreme Court did, with the majority holding that 1966 was persuasive, Lady Hale considering that it should be 1953, and Lord Kerr undecided. The finding that 1966 was the ‘critical date’ meant that the claim failed to meet the ‘genuine connection’ test because the gap between the critical date and the date of the events in question (1948) was greater than 10 years.

Principle vs Pragmatism

This decision brings out the underlying legal policy tension between a principled approach to historical justice, which emphasises the importance of accountability for past atrocities, on the one hand, and on the other, acknowledgment that ‘there must be some limit on how far that duty extends. Practicability must play a part in the evaluation’ (Lord Kerr, at para 208). Under the principled approach, the creation of lines restricting the backwards reach of Article 2 is somewhat artificial and sits uncomfortably with the ‘universality’ of rights. The ECtHR’s criteria have been accused of arbitrariness (see here and here) and in Keyu Lord Kerr and Lady Hale were reluctant for historical justice to be decided purely on the basis of ‘rigid limits’ and ‘arid debates about the critical date’ (see paras 254 and 301).

At the same time, Lord Neuberger’s leading judgment endorses the need for clear rules in this area, and takes into account pragmatic concerns, such as the risk of opening the floodgates to ‘demands that all suspicious deaths, however long ago, would have to be investigated’ (para 137). In his assessment of the rationality of the government refusing to hold an inquiry into the events in this case, Lord Neuberger noted the significant cost of an inquiry, particularly since the events took place outside the UK and many years ago (para 130). This chimes with the principle established by the ECtHR that positive obligations must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities (Brecknell v UK at para 70).

What revives the duty to investigate?

Where there has been no investigation into a historical death, the ECtHR has held that the duty to investigate may be triggered when new evidence comes to light that is ‘sufficiently weighty and compelling to warrant a new round of proceedings’ provided its jurisdictional criteria above have also been met (Janowiec, para 146). The Court had differing views on whether the ‘new evidence’ test was satisfied in this case. The majority considered that although new evidence had emerged, it ‘did not really add anything to the basic point’ (para 107), and that to find that the applicants were still within time would, in the words of Lord Neuberger, make a ‘paper tiger’ of the time limits set out in the Human Rights Act and ECHR.  Lord Kerr and Lady Hale, on the other hand, interpreted ‘new material’ broadly, holding that it could include allegations, provided they are credible and have the potential to undermine earlier findings and that in this case such allegations existed (see paras 265-267 and 292 – 299).

Historical truth or legal liability?

The applicants’ reasons for an inquiry in this case included the need to identify the truth, to grant the survivors closure, and to lead to ‘a correction of the official record, a public apology, a public memorial and the active consideration of some ex gratia compensation’ (para 135). But the ECtHR has distinguished the duty to investigate, which concerns ‘acts capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party’, from ‘historical inquiries’ (Janowiec at para 143). On the basis of this link between investigation and prosecution, Lady Hale queried whether the applicants’ request was capable of falling within the procedural obligation in Article 2 at all (para 300). In this respect the ECtHR and its contracting states appear to be going down a different road to the Inter-American Court of Human Rights, which has associated the duty to investigate with the right to truth and access to information about past atrocities, and imposed remedies including the requirement of state apologies and the establishment of memorials (see, for example, Gomes Lund v Brazil).

Conclusion

The Supreme Court’s application of the ECtHR’s criteria for circumscribing the limits of its temporal jurisdiction in Article 2 cases has closed the door to accountability in this case. On the other hand, Keyu suggests that the ECtHR’s clarification of the criteria in Janowiec has made it easier for national courts to apply them, an improvement on the pre-Janowiec days when the criteria in Silih were described as ‘Delphic’ by the Supreme Court in Re McCaughey [2011] UKSC 20. While the increased legal certainty in this area is welcome, the differing views of the judges on critical date, and on the type of new evidence needed to revive the procedural obligation under Article 2, suggest that further guidance from the ECtHR would nevertheless be helpful. An appeal to Strasbourg by the applicants may provide the forum for such consideration.