MAKAROVÁ v. THE UNITED KINGDOM

FIRST SECTION

DECISION

Application no. 67149/17
Adéla MAKAROVÁ
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 12 June 2018 as a Committee composed of:

Kristina Pardalos, President,

Ksenija Turković,

Tim Eicke, judges,

and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 4 September 2017,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Adéla Makarová, is a Czech national, who was born in 1983 and lives in Prague. She was represented before the Court by Mr J. Kmec, a lawyer practising in Prague.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant is the sister of Zdeněk Makar.

4. On 21 September 2016, Mr Makar was killed in London. On 23 September 2016, a post-mortem was undertaken by a forensic pathologist. The police identified R.S as a suspect to Mr Makar’s killing. He was interviewed by the police on three occasions. On 25 September 2016, R.S was charged with Mr Makar’s murder.

1. The criminal trial against R.S

5. A trial took place between 21 March and 3 April 2017 at the Central Criminal Court, London, before a judge sitting with a jury composed of twelve lay persons.

6. During the course of the trial, the court heard evidence from several eye witnesses to the incident; police officers who attended the scene; and the pathologist who effectuated the post-mortem.

(a) The prosecution and defence cases

7. The prosecution outlined the case against R.S as follows. It was alleged that on the night of 21 September 2016, he had acted aggressively towards Mr Makar in a fast-food take-away. He then followed Mr Makar as he made his way home. A short time later, R.S struck the unarmed Mr Makar on the left side of the rear of his head with an improvised weapon, a bicycle lock. The blow caused Mr Makar to be knocked to the ground, whereupon he was struck at least twice more. The blow to the head caused an acute traumatic subarachnoid haemorrhage. Mr Makar was pronounced dead at the scene.

8. The defence case, based on R.S’s witness statement and his evidence at trial, can be summarised as follows. It was alleged that R.S and a friend S.S were making their way back to their respective homes from the fast-food takeaway when they were confronted by Mr Makar. Mr Makar attempted to strike S.S. R.S intervened to protect S.S, but in doing so he was struck by Mr Makar. R.S accepted that he struck Mr Makar with the bicycle lock but asserted that he acted in reasonable self-defence of himself and/or S.S.

(b) Pathological evidence

9. In addition to hearing from the pathologist, the court also had the post-mortem report dated 23 September 2016. The pathologist concluded that a single impact to the region behind the left ear was the probable cause of bleeding into the space surrounding the brain (a subarachnoid haemorrhage) which caused the death. The pathologist noted that at the time of death, Mr Makar’s blood alcohol level indicated significant intoxication, which made him particularly vulnerable to the haemorrhage. With reference to graphics, the pathologist stated that the shape of the injury caused by the fatal blow was reminiscent of the shape of R.S’ bicycle lock. The absence of broken bones led him to the conclusion that the injury was caused by ‘moderate force’.

(c) Trial judge’s directions

10. At the conclusion of hearing evidence, the trial judge directed the jury on the law. He outlined the legal requirements for murder, manslaughter, and self-defence. He directed the jury on the relevance of RS’ ‘good character’ (referring to his lack of previous criminal convictions or cautions). The judge explained to the jury that RS’ ‘good character’ could be taken into account when deciding on the credibility of his evidence. He then proceeded to summarise the evidence heard over the course of the trial.

11. In order to assist deliberations, the jury were given an agreed written document, consisting of a sequential list of questions providing a logical route to verdict/s. Those questions are as follows: (1) Are you sure that the defendant struck the fatal blow to the deceased? (2) Are you sure that the defendant was not acting in lawful sense of defence at the time? (3) Are you sure that at the time the defendant struck the fatal blow he intended at the very least really serious harm to the deceased? (4) Are you sure that at the time the defendant struck the fatal blow he intended to cause the deceased some, not necessarily serious, harm?

(d) Verdict

12. On 3 April 2017, after deliberating for ten hours over the course of two days, the jury delivered a majority verdict finding R.S not guilty both of murder and manslaughter. R.S was discharged.

B. Relevant domestic law and practice

1. Relevant criminal offences and defences in England and Wales

(a) Murder

13. The unlawful taking of life with intent to kill or cause really serious harm constitutes the common law offence of murder, which is punishable by a mandatory sentence of life imprisonment.

(b) Involuntary manslaughter

14. A person is guilty of involuntary manslaughter if he or she commits an unlawful act, which is considered to be “dangerous”, and which leads to the death of another. The requirement of dangerousness has been interpreted to mean an act which “all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm” (R. v Church [1965] 2 WLR 1220).

(c) Self-defence

15. In England and Wales self-defence is available as a defence to crimes committed by use of force, including murder. The domestic law and practice relating to self-defence was set out in Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 148 to 155, ECHR 2016.

2. The status of omission in the criminal law of England and Wales

16. In general, criminal liability does not arise under common law in respect of a failure to act so as to prevent or avert harm to other individuals. That position is reflected in the case of R v Lowe [1973] QB 702. The defendant had been convicted of both neglecting his child so as to cause it unnecessary suffering or injury to its health and manslaughter. However, the Court of Appeal quashed his manslaughter conviction. Phillimore J stated:

“If I strike a child in a manner likely to cause harm it is right that if the child dies I may be charged with manslaughter. If, however, I omit to do something, with the result that it suffers injury to its health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence even if the omission is deliberate.”

17. However, criminal liability for an omission may be imposed where there is a duty to act. In R v Khan [1998] Crim LR 830, the defendants were alleged to have supplied a 15-year old girl with heroin, who subsequently overdosed and died. They were convicted of manslaughter by omission at first instance. On appeal, the Court of Appeal held that manslaughter by omission was a type of manslaughter arising from a breach of duty coupled with gross negligence. In order for a person to be criminally responsible for an omission, he had to have a relationship with the victim of such a nature that a duty to act arose.

3. Challenging an acquittal

18. The common law doctrine of autrefois acquit protects a person from being tried for a crime in respect of which he has previously been acquitted. There are however two statutory exceptions to the doctrine. The first is where the acquittal is “tainted” within the meaning of section 54 of the Criminal Procedure and Investigation Act 1996. The second (introduced by sections 75 to 97 of the Criminal Justice Act 2003) is where a prosecutor applies to the Court of Appeal for an order to quash a person’s acquittal for a qualifying offence. The Court of Appeal must order a retrial if there is new and compelling evidence in the case (section 78) and it would be in the interests of justice for an order to be made (section 79).

19. Judicial review does not appear to be a remedy which is available to challenge an acquittal in criminal proceedings. In Forbes v Attorney General of Jamaica [2009] UKPC 13, the appellant appealed to the Judicial Committee of the Privy Council (JCPC) against the Court of Appeal’s decision to uphold a ruling refusing permission to bring judicial review proceedings against the respondent. The appellant’s daughter had been killed in Jamaica. The accused was acquitted by a court of first instance. The appellant had applied for leave to bring judicial review proceedings against the Attorney General to quash the acquittal and declare the trial a nullity. The JCPC found that judicial review was not a remedy available to the appellant. It observed that there is no inherent jurisdiction for one superior court judge to quash the decision of another. In any case, an order of a civil court in judicial review proceedings quashing the acquittal would not bind the judge who presided at the retrial, given that the accused was not a party to the civil proceedings.

COMPLAINTS

20. The applicant complained that the investigation into Mr Makar’s death failed to comply with the procedural duty under Article 2 of the Convention. The applicant argued that the domestic proceedings highlighted structural deficiencies in the criminal justice system. In this regard, the applicant submitted that: the criminal proceedings failed to produce clear reasons for RS’ acquittal; the relevant test for self-defence in domestic law allowed instances of unlawful killings to go unpunished; and there was no criminal liability in domestic law for an intentional omission to provide first aid to a third party whose life was in danger. The applicant argued in the alternative that if there was no such structural deficiency, a proper application of the domestic law on self-defence could not have led the jurors to the conclusion that RS acted in self-defence. More generally, the applicant argued that the State failed to take investigatory steps which would have disproved the defence’s account of events.

21. The applicant complained that the absence of an appeal against an acquittal by a jury in criminal proceedings constituted a violation of Article 13 in conjunction with Article 2 of the Convention.

THE LAW

22. Article 2 of the Convention, reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence ...”

23. Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court’s assessment

1. Non-exhaustion of domestic remedies

24. The Court observes that while the applicant contended that the State failed to properly investigate Mr Makar’s death, the applicant’s submissions focussed largely on the criminal proceedings against R.S., and the State’s alleged failure to secure a satisfactory outcome in those proceedings in spite of clear and convincing evidence against R.S., In respect of the actual investigation into the circumstances surrounding Mr Makar’s death, it would appear to have been open to the applicant to challenge the actions of the police during the investigation phase by submitting a complaint to the Independent Police Complaints Commission, or seeking leave for permission to apply for judicial review.

25. In respect of the criminal proceedings, the Court observes that the applicant was not directly involved in the criminal prosecution of R.S, who was acquitted by a jury at the conclusion of a criminal trial. Although it would have been theoretically possible for the applicant to seek leave for permission to apply for judicial review of that acquittal, there is no evidence in domestic law that that remedy would have had any prospect of success (see paragraph 19 above). In so far as the applicant does not make any distinction between the investigation and the criminal proceedings, for the purposes of the present case the Court does not consider that the applicant has failed to exhaust domestic remedies for the purposes of Article 35 § 1 of the Convention. It notes in any event that the application is manifestly ill-founded for the reasons set out below.

2. Alleged violation of Article 2 of the Convention

26. The Court observes that the applicant did not contend that the authorities of the respondent State were responsible for the death of Mr Makar; nor did the applicant imply that the authorities knew or ought to have known that he was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against such a risk. The present case should therefore be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see for instance Angelova and Iliev v. Bulgaria, no. 55523/00, § 92, 26 July 2007), or in which the factual circumstances imposed an obligation on the authorities to protect an individual’s life (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII).

27. The absence of any direct State responsibility for the death of Mr Makar does not exclude the applicability of Article 2 of the Convention. By requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction, Article 2 § 1 imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (See Osman, cited above, § 115). With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation, capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment (Menson v. the United Kingdom (dec.), no. 47916/99, page 13, ECHR 2003‑V).

28. The Court has defined the scope of the obligation as one of means, and not results (Armani Da Silva, cited above, § 233). It follows that Article 2 § 1 does not guarantee an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (ibid, § 238).

29. What form of investigation will satisfy the requirements of the procedural duty will vary in different circumstances (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69 to 73). The Court’s task, having regard to the proceedings as a whole, is limited to reviewing whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 § 1 (see Armani Da Silva, cited above, § 257).

30. Insofar as this complaint intersects with the requirements of a fair trial, guidance can be found in the case-law of the Court under the criminal limb of Article 6 § 1. In this respect, the Court recalls that the Convention does not require jurors to give reasons for their decision (Saric v. Denmark (dec.), no. 31913/96, 2 February 1999). Nevertheless, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness (Taxquet v. Belgium [GC], no. 926/05, § 92, ECHR 2010).

31. The Court considers that in the circumstances the State has satisfied the procedural obligation under Article 2 § 1 to investigate Mr Makar’s death. The Court takes into account that the domestic authorities initiated a criminal investigation shortly after Mr Makar’s death, which resulted in criminal proceedings being brought against a suspect. The criminal trial against R.S was held in public, allowing the applicant to discern the factual circumstances surrounding Mr Makar’s death as they were established, as well as the cause of his death. Relying on the trial judge’s legal directions, the applicant could have been in no doubt that the lay jury did not accept that R.S was guilty of murder or manslaughter. Whilst the domestic system does not require a jury to provide more detailed reasons, this does not in itself lead to a violation of Article 2 of the Convention (see paragraph 30). Further, the features of the criminal trial (for example, the trial judge’s detailed legal directions and the presence of a written ‘route(s) to verdict’ document) allow the Court to draw the conclusion that there were sufficient safeguards to mitigate against the lay jury reaching a verdict which was arbitrary (see paragraphs 11 and 30).

32. The applicant complains that the legal requirement for self-defence in the law of England and Wales is incompatible with Article 2 of the Convention. The applicant’s complaint is predicated on the assumption that the lay jury accepted R.S’ plea of self-defence. Whilst the Court will not speculate on the jury’s reasons for acquitting R.S, the Court recalls its judgment in Armani Da Silva, cited above, in which it found that the relevant test for self-defence at domestic level (see paragraph 15 above) was not significantly different from the test applied by the Court in McCann and Others, cited above, and in subsequent case law. The applicant has not advanced any convincing argument why this Court ought to revisit its findings in Armani Da Silva, or why the test of self-defence was applied wrongly in the instant case.

33. The applicant complains that the failure of the State to impose criminal liability for an intentional omission to provide first aid to a third party amounts to a violation of Article 2 of the Convention. The Court notes that while the domestic law does not generally impose liability for a failure to act, there may be limited circumstances where a defendant may be guilty of manslaughter by omission (see paragraphs 16 to 17 above). Notwithstanding, there is no precedent in the Court’s case-law to the effect that Article 2 imposes such a positive obligation to criminalise intentional omissions.

34. Finally, the Court recalls that there is no obligation to prosecute a third party in order for the State’s obligation under Article 2 of the Convention to be satisfied (see paragraph 28 above). Having regard to the above considerations, the Court concludes that the applicants’ complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

35. The Court observes that some aspects of the applicant’s complaint, particularly in so far as it seeks to challenge the final outcome of the criminal trial, are of a fourth instance nature. In this regard, it is not the function of the Court to deal with errors of fact or law committed by a domestic court, or indeed to question the guilt or innocence of an accused (Khan v. the United Kingdom, no. 35394/97, § 34 ECHR 2000‑V). For the reasons identified above (see paragraph 31), the Court concludes that neither the criminal trial nor the final outcome could be considered to be manifestly arbitrary.

3. Article 13 in conjunction with Article 2 of the Convention

36. The applicant complains of a breach of Article 13 in conjunction with Article 2 on the basis that there is no appeal at domestic level against an acquittal by a jury in criminal proceedings.

37. The Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The Court has found above that the applicant’s complaint under Article 2 is manifestly ill-founded. For similar reasons, the applicant does not have an “arguable claim” and Article 13 is therefore inapplicable to her case.

38. It follows that this part of the application is also manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 July 2018.

              Renata DegenerKristina Pardalos
              Deputy RegistrarPresident

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