The government is not obliged to hold a public inquiry into the 1940s killing of 24 Malayan villagers by a British army patrol – even though it may have been a war crime – because the atrocity occurred too long ago, the supreme court has ruled.

The majority decision by the UK’s highest court that the duty to investigate dates to only a 10-year grace period before 1966, when the right of individual petition to the European court of human rights was introduced, may, however, have profound consequences for inquiries into Northern Ireland’s Troubles.

The judicial review challenge, brought by the relatives of 24 unarmed men killed by Scots Guards at Batang Kali on 11 and 12 December 1948, has widened into a dispute about when unresolved claims of injustice are allowed to disappear into the past.

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 10 people were killed by soldiers in west Belfast and into alleged collusion between police and loyalist paramilitaries in mid-Ulster during the mid-1970s.



Delivering judgment in the Batang Kali case, Lord Neuberger, president of the supreme court, recounted how a Metropolitan police investigation into the alleged massacre was launched in 1969 after a four guardsmen gave interviews to the People newspaper.



A number of soldiers from the patrol were later interviewed under caution and confirmed they had been ordered to shoot the villagers because they were either bandits or communist sympathisers.



Several soldiers revealed they had been instructed by the army to lie and maintain that the villagers had been shot while trying to escape. The police investigation ran into Foreign Office objections and was eventually terminated.



The supreme court judgment records a note made by DCS Frank Williams in July 1970 that “this matter was politically flavoured and it is patently clear that the decision to terminate inquiries in the middle of the investigation was due to a political change of view when the new Conservative government came into office [in June 1970]”.



Lord Kerr, one of the court’s justices agreeing with the majority, said 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”.



He added: “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.”

Lord Neuberger said: “The desire to discover ‘historical truth’ is understandable, particularly in a case where it involves investigating whether a serious wrong, indeed a war crime, may have been committed. However, not only is this a case where neither article 2 (the right to life under the European convention on human rights) nor customary international law would require such an investigation.

“It is also a case where the [government] has given coherent and relevant reasons for not holding an inquiry, including expressing a justifiable concern that the truth may not be ascertainable, and a justifiable belief that, even if the appellants’ expectations to the contrary were met, there would be little useful that could be learned from an inquiry so far as current actions and policies were concerned.”

The killings may have been unlawful, Lord Neuberger concluded, but they occurred more than 10 years before the critical date when the right of petition to the Strasbourg court was recognised by the UK and created a duty to investigate.

John Halford, of Bindmans solicitors, who represented the families of the Batang Kali victims, 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.”

Yasmine Ahmed, director of Rights Watch UK, said: “The outcome of this case has considerable implications in Northern Ireland where many of the deaths that occurred during the Troubles happened before the UK government enacted the Human Rights Act in 1998 … The court today recognised that the UK Government has an obligation to carry out article 2 [right to life] compliant investigations into Troubles-related deaths in Northern Ireland.”

Darragh Mackin, a solicitor with the Belfast firm KRW Law which represented some of the Northern Ireland NGOs, said: “Whilst not being a satisfactory result for the relatives of victims of the Batang Kali massacre, the judgment does have an important impact for dealing with historic related murders in this jurisdiction. The court has held that the obligation on the British state to investigate suspicious deaths arises from the date the state granted the right of individual petition, namely 1966.

“This therefore gives rise to an obligation on the British government to undertake human rights compliant investigations into conflict-related incidents, where necessary in order to discharge its duties.”



















