FOURTH SECTION
DECISION
Application no. 61974/11
Algirdas VOSYLIUS and Laimute VOSYLIENE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 3 September 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 27 July 2011,
Having regard to the information provided by the respondent Government under Rule 49 § 2 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
A. Introduction
1. The applicants, Mr Algirdas Vosylius and Ms Laimute Vosyliene, are Lithuanian nationals, who were both born in 1956 and live in Marijampole, Lithuania. The application concerns the death of their son Rolandas in the United Kingdom and the prosecution of the person responsible, V.C., a fellow Lithuanian national. V.C. was initially charged with murder and then, when the trial judge ruled that there was no case to answer on that charge, manslaughter. He pleaded guilty to the charge of manslaughter, was sentenced to four years’ detention in a young offenders’ institution and was then deported to Lithuania in the course of his sentence.
2. Following a preliminary examination of the admissibility of the application, on 5 October 2012 the judge appointed as rapporteur under Rule 49 § 2 of the Rules of Court requested the respondent Government to submit copies of the trial judge’s ruling that there was no case for V.C. to answer on the charge of murder, a transcript of his sentencing remarks when sentencing V.C. for manslaughter, and the deportation order made against V.C. That documentation was submitted on 15 November 2012.
B. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 20 July 2010, Rolandas Vosylius, was attacked by V.C. outside Leyton Midland Road railway station, London. The two men were known to each other through work and the whole incident was captured on CCTV. It appears that, after a heated discussion, V.C. punched Mr Vosylius on the jaw, causing him to fall to the ground. There were some further blows inflicted by V.C. while Mr Vosylius was lying on the ground. Mr Vosylius died at the scene. He was twenty-five at the time of his death; V.C. was nineteen.
5. V.C. was charged with Mr Vosylius’ murder. He was also charged, in the alternative, with manslaughter. The case went to trial before a judge and jury at the Crown Court at Snaresbrook on 9 February 2011. V.C. pleaded guilty to manslaughter but denied murder, stating that he had not intended either to kill Mr Vosylius or to cause really serious bodily harm when he hit him. (In the criminal law of England and Wales, one of the two forms of intent must be present before a person is guilty of murder: see paragraph 14 below.) It was accepted by the prosecution that there was no intent to kill but not accepted that there was no intent to cause really serious bodily harm.
6. In addition to the CCTV evidence, the only other significant evidence in the case came from two pathologists, one called by the prosecution, the other by the defence. Their evidence was that the cause of death was a tear to the carotid artery (the main artery in the neck) and that the blow to the jaw had been one of moderate force. When it was put to him in cross‑examination, the pathologist called by the prosecution accepted that the blow would not necessarily have been struck with an understanding of its implications in terms of the fatality which it caused.
7. At the close of the prosecution case, the defence submitted that there was no case to answer on the charge of murder since the prosecution had not proved that V.C. had intended to cause serious harm. That submission was opposed by the prosecution who argued that the necessary intent could be inferred inter alia from V.C. continuing to strike Mr Vosylius while he was lying on the ground.
8. The trial judge upheld the submission of no case to answer in respect of the murder charge. He found that, if there was any such intent to cause really serious bodily harm, it had to be present at the time the fatal blow to the victim’s jaw was struck. There was, in the trial judge’s view, no such intent. There was no evidence of premeditation on the part of V.C., nor any evidence that he was specially trained in the use of his fists or knowledgeable as to the likelihood of the grave results that such a blow could cause. The trial judge also accepted the defence’s submission that the necessary intent could not be inferred from the later injuries inflicted by V.C. (the forensic evidence was that they caused no more than bruising), or by the manner in which he had left the scene (Mr Vosylius had been conscious at that moment). The trial judge therefore concluded that there was no evidence upon which a reasonable jury, properly directed as to the law, could be sure that there was intent to cause really serious bodily harm.
9. The prosecution did not appeal against that ruling. V.C. was then sentenced to four years’ imprisonment for manslaughter, less the 189 days he had already spent in custody. In sentencing him, the trial judge observed:
“In sentencing you for what you admitted you did, I do so on the basis, as I have previously indicated in addressing the jury, that no reasonable jury could be sure that at the time you struck what seems to have been on the evidence the first and fatal blow to the unsuspecting and unaggressive workmate who you were confronting that you intended by doing so to cause him really serious bodily injury.
I add that it has never been suggested by the prosecution in the course of this trial which has ended that you had ever formed any intent to kill him.
I accept, too, that the nature of the force that you used in that first fatal blow was moderate in nature and that the nature of the fatal injury which you caused was not one that you foresaw. In that sense, to use the expression that has been used already – perhaps as I have observed not in one sense the happiest one to use – but adopted from one of the reports from the two pathologists who considered this case, it was a single ‘unlucky’ punch which brought about the sad death of your victim, Rolandas Vosylius.
However, the blow that you struck was a blow of more than trivial nature which you must have foreseen, in my judgment, that it might by using the force that you did cause some form of actual bodily harm to the unsuspecting victim of your assault.
As the CCTV footage that I have seen though makes clear, so brutally and shockingly, the fatal first blow was not the only one that you struck in what was, as I accept, a matter of twenty-one seconds or so, a persistent course of violence which you visited upon the unresisting and wholly blameless man who you were attacking.
Although none of these additional assaults caused him any serious injury, the fact remains, in my judgment, that this was and in terms of culpability has to be considered as a series of repeated assaults and not a case of a single, isolated punch which was struck in one flash of temper over a matter of a second or two.
This persistent attack, the series of assaults, occurred, as is, of course, too clear, in a public place in a railway station where members of the public and train staff were nearby in broad daylight. Happily, but perhaps by chance, no person seems to have witnessed or heard the incident when it occurred.
In determining, as I must, in accordance with the framework that Parliament has provided and the Court of Appeal Criminal Division has set out in its guidance, I first have to judge whether I should consider sentencing you to an indefinite sentence of imprisonment for public protection or to an extended sentence because only those kinds of sentence would be appropriate to meet such risk that you might represent of being a danger to the public after the conclusion of what otherwise would be a commensurate sentence for this offence.
To implement a sentence of either of those kinds, to pass such a sentence, would require me to be satisfied that you would represent a significant risk in the future of committing offences in this context of violence which carry with them a significant risk that by doing so you would cause death or serious personal injury.
Having regard to your previous good character and acknowledging that this case does not reveal that you were, as some are, unhappily, accustomed to carry offensive weapons or engage in premeditated serious violence, I have concluded that the future risk that you present in terms of danger to the public does not require me to pass a sentence which would either be indefinite or extended. The risk to which I have referred in my judgment can properly be reflected in my assessment as to what is the appropriate length of the custodial sentence which, quite obviously, the seriousness of this offence requires me to pass.
In determining what the length of that sentence should be I give you credit, as of course I should and do, for your plea of guilty entered to the charge of manslaughter. I find that that plea was not entered on the very first occasion you were asked to enter a plea to the indictment, but I do accept that, following consideration, though not perhaps immediate acceptance, of advice from leading counsel you did tender that plea notably in advance of the trial and I therefore assess that the quantum of credit is, as [counsel for the defence] has submitted, to be assessed at twenty-five per cent.
It cannot, though, be said that at the time you were interviewed by the police in relation to this incident you displayed either candour or remorse for what you had done. Indeed, you wrongly and wholly unjustifiably sought to cast blame upon the man that you had killed. There is no credit, therefore, for any remorse of that nature which an early acceptance of responsibility would have earned you, indeed, an element of discredit for the way you sought to portray events until many months later.
In assessing the appropriate length of sentence I have helpfully had my attention drawn by the prosecution and the defence learned counsel to a recent decision of the Court of Appeal Criminal Division, Attorney-General’s Reference No. 60 of 2009, a decision on which the judgment of the court was given by the Lord Chief Justice [see paragraph 16 below].
The guidance given in that case is of assistance as to the general approach to cases of this general kind which judges who have to sentence should have in mind. It isn’t in terms a guideline case as technically so-called, but it is of very considerable importance in assisting me in the approach that I should adopt.
The individual appeals and references which were dealt with in the course of the judgment of that court were, of course, entirely, as the expression is, fact-specific, depending on their own facts and allowance has to be made in different ways for that fact in drawing too crude a comparison between the sentences that were regarded as appropriate by the Court of Appeal in those cases.
In deciding within the range that is appropriate in my view for sentence that your case presents, I take cognisance, of course, of the fact that at the time of this offence you were, although an adult, only nineteen. You are now twenty. I take account of the fact that you have no previous convictions in this country or in your home country of Lithuania for violent offences and you are, in fact, a person of effective good character.
But I also reflect on the gravity of the loss of life which you caused, the loss of life which meant that a young man aged twenty five had his life taken away from him. You will have to live and remember for the rest of your life with the understanding which I hope you have of that fact and what it meant obviously to the deceased and the grief and pain and loss which has occasioned to Mr Vosylius’ family.
The impact of the offence on them has been set out in a statement which I have read and which I have considered.
I make it to clear to them and to all that no sentence of the court for an offence of this kind can in any way seek properly to reflect the gravity of the loss of life which the offence caused or the loss and grief to the family and friends of the person who has died.
The fact is that you by your appalling and unlawful assault caused the death of an innocent man who offered no resistance to your violence, who was wholly unprepared for the fatal blow which you struck and who continued to offer no defence to the persistent assaults upon him which the CCTV coverage makes so clear. There was, too, no provocation of any kind which could begin to justify or excuse your behaviour.
I have concluded, having regard to all of the submissions made to me and weighing the aggravating and mitigating factors which are present in this case and to which I have made reference, that the appropriate sentence in this case is one of four years’ detention in a young offenders’ institution.”
10. The trial judge made no observations as to V.C.’s deportation to Lithuania, save that it was to be considered in accordance with the legislation that had been enacted by Parliament on the matter.
11. On the basis of advice from senior counsel, the Attorney General decided not to refer the case to the Court of Appeal on the grounds that the sentence was unduly lenient.
12. V.C. would ordinarily have become eligible for release after serving half of his sentence. Given the time he had spent in detention before trial, V.C. would have reached the halfway point of his sentence on 5 August 2012. However, on 5 April 2011, in light of his conviction for manslaughter, the Secretary of State for the Home Department notified V.C. that she was considering deportation on grounds of public policy and requested reasons why he should not be deported. On 17 October 2011, V.C. signed a disclaimer expressing his desire to return to Lithuania under the Government’s early removal scheme. On 23 November 2011, he was notified by the Secretary of State of her decision to make a deportation order. V.C. again signed a disclaimer repeating his desire to return to Lithuania under the early removal scheme. The deportation order was signed on 29 November 2011 and served on V.C. on 7 December 2011. Removal under the early release scheme was approved by the governor of the Young Offenders’ Institution where V.C. was being detained on 8 December 2011 and his deportation took place on 6 January 2012.
13. Once the case had been concluded, the applicants wrote to the Crown Prosecution Service seeking an explanation as to what had happened. On 26 July 2011, they received a reply setting out the facts of the case, outlining what had happened at trial and how V.C.’s sentence had been set, and endeavouring to explain to them why V.C. had not been convicted of murder. The letter also advised them of the possibility of applying to the Criminal Injuries Compensation Board for compensation. Similar information was provided to Rolandas Vosylius’ fiancée via private, English solicitors she had instructed. The applicants also received two letters from the Victim Liaison Service, the first outlining when V.C. would be eligible for early release, and the second informing them of his deportation.
C. Relevant domestic law and practice
1. Murder and manslaughter
14. For a defendant to be found guilty of murder, the prosecution must prove that he deliberately and unlawfully killed another person and that, in doing so, he intended to kill or to cause really serious bodily harm. Murder in England and Wales carries a mandatory sentence of life imprisonment.
The offence of manslaughter includes unlawful killing without intent to kill or to cause really serious bodily harm (so-called “involuntary manslaughter”). It carries a maximum sentence of imprisonment for life.
Section 6 of the Criminal Law Act 1967 provides that, on an indictment for murder, a person found not guilty of murder may be found guilty of, inter alia, manslaughter.
2. Applying for sentences to be reviewed by the Court of Appeal
15. Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney General to apply to have sentences for certain offences reviewed and, where appropriate, increased by the Court of Appeal. He or she may do so when a particular sentence appears to be unduly lenient. The power exists in respect of, among other offences, those which are triable only on indictment (that is, in the Crown Court before a judge and jury). Manslaughter, being triable only on indictment, is one such offence.
3. Attorney General’s Reference Nos 60, 62 and 63 of 2009
16. In the above case (also reported as R v. Appleby and others) [2009] EWCA Crim 2693, the Court of Appeal Criminal Division considered two references by the Attorney General in respect of sentences which had been passed for murder or manslaughter and which the Attorney General considered to be unduly lenient. These were joined to another appeal where the appellants appealed against the sentences they had been given after pleading guilty to manslaughter. The common feature of the cases was that the deaths had occurred as a result of attacks in public places. The Court of Appeal gave guidance on the appropriate sentences which should be passed in such cases, notably that greater attention than before should be paid to the consequences of the crime (owing to the enactment of section 143(1) of the Criminal Justice Act 2003: see paragraph 19 below) and also that violence on the streets had now to be seen as a significant aggravating factor. The court added that, in such cases, if CCTV footage was available, it should be studied closely before sentence was passed, as it conveyed much more of the reality of the incident and its accompanying violence than words alone.
The consequence of the guidance laid down was that, in the cases which had been referred by the Attorney General, the Court of Appeal increased the sentences which had been passed by the trial judges and, in the third case, it dismissed the appellants’ appeals against their sentences.
4. General provisions on sentencing
17. Part 12, Chapter 1 of the Criminal Justice Act 2003 enacts general provisions about sentencing in the criminal courts of England and Wales.
18. Section 142(1) provides that, in every case where the offender is aged eighteen or over at the time of conviction, the court must have regard to the five purposes of sentencing: the punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders, the protection of the public, and the making of reparation of offenders to persons affected by their offence.
19. Section 143(1) provides that, in considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.
20. Sections 144 and 174(2) allow for reduction in sentence when the offender has pleaded guilty. In accordance with 2007 guidance issued by the Sentencing Guidelines Council (replaced in April 2010 by the Sentencing Council), the level of reduction should be gauged on a “sliding scale”. This ranges from a recommended one third where the guilty plea was entered at the first reasonable opportunity, reducing to one quarter where a trial date has been set, to one tenth for a guilty plea entered at the “door of the court” or after the trial has begun.
21. Section 244 enacts the duty of the Secretary of State to release a prisoner on licence once he has served the “requisite custodial period”. For a sentence of twelve months or more, the requisite custodial period is one‑half of the sentence.
22. Section 260 makes provision for the early removal of prisoners liable to removal from the United Kingdom. The removal may not take place until one-half of the requisite custodial period within the meaning of section 244 has been served (see section 260(7)(b)).
COMPLAINTS
23. The applicants complained under Article 2 of the Convention that the United Kingdom authorities failed to protect their son’s right to life. They further complained that V.C.’s conviction for manslaughter instead of murder and his sentence of four years’ imprisonment were insufficient.
24. They made the same complaints under Article 6 of the Convention and, also under that Article, they complained that they have not been given copies of the relevant decisions taken in the course of the criminal proceedings against V.C.
THE LAW
A. Article 2
25. Article 2, where relevant, provides 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...”
1. General principles
26. Where life has been taken by a private individual rather than a State agent, the general principles which guide the Court’s examination are the following:
- Article 2 imposes a duty on the 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 v. the United Kingdom, judgment of 28 October 1998, Reports 1998‑VIII, p. 3159, § 115; Mastromatteo v. Italy [GC], no. 37703/97, §§ 67 and 89, ECHR 2002‑VIII; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003‑V; Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007).
- Compliance with the State’s positive obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII).
- Thus, the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law (Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I).
- There is an implicit requirement that the proceedings be conducted promptly and with reasonable expedition (Opuz v. Turkey, no. 33401/02, § 150, ECHR 2009).
- However, it is not for the Court to address issues of domestic law concerning individual criminal responsibility, that being a matter for assessment by the national courts (Öneryıldız v. Turkey [GC], no. 48939/99, § 116, ECHR 2004‑XII).
- Article 2 does not entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence (see, mutatis mutandis, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see, mutatis mutandis, Tanlı v. Turkey, no. 26129/95, § 111, ECHR 2001-III).
- The Court’s task consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (Öneryıldız, cited above, § 96).
2. The present case
27. This is not a case where there was any history of threats by V.C to the life or physical integrity of Rolandas Vosylius, such as would have engaged the State’s positive obligation to take preventative operational measures in order to protect Mr Vosylius (contrast Osman and Opuz, both cited above). Thus, contrary to the applicants’ submission that the State failed to protect Mr Vosylius’ life, the State’s positive obligation in this case extends only as far as enforcing the criminal law against V.C. after Mr Vosylius’ death at his hands.
28. The Court can find no fault with the manner in which the criminal proceedings against V.C. were conducted. The death of Mr Vosylius was investigated promptly. V.C. was promptly and properly charged with murder and, in the alternative, manslaughter. No issue can arise from the prosecution’s failure to secure a murder conviction when the case came to trial. V.C.’s acquittal on the charge or murder stemmed entirely from the different mens rea (mental elements of the crime) for murder and manslaughter in the substantive criminal law of England and Wales, which is a matter of assessment for the courts of that jurisdiction and not for this Court (see Öneryıldız, cited above, § 116). The trial judge who found that no reasonable jury, properly directed, could convict of murder only did so after hearing expert evidence from two pathologists, each of whom was subjected to examination and cross-examination by the defence and prosecution. It is clear from the transcript of his ruling, which has been provided to the Court, that the trial judge made his ruling after full consideration both of the evidence in the case and of the domestic law on intent.
29. Similarly, no issue arises in respect of the sentence passed by the trial judge for manslaughter. While it has reiterated that there is no absolute obligation for all prosecutions to result in conviction or a particular sentence (see subparagraph 6 of paragraph 26 above), the Court is nonetheless prepared to accept that a manifestly inadequate sentence for the taking of life could result in a finding that a State had failed to discharge its positive obligation under Article 2 of the Convention (see, mutatis mutandis, Opuz, cited above, § 169). However, this is not the case here. In sentencing V.C., the trial judge was clear that only a custodial sentence would be appropriate. In deciding how long that sentence should be, he considered all of the relevant aggravating and mitigating factors in the case. He was fully familiar with the circumstances of the offence, not least because, before passing sentence and consistently with the Court of Appeal’s guidance in Attorney General’s Reference Nos 60, 62 and 63 of 2009I (see paragraph 16 above), he had watched the CCTV footage of the attack. Having done so, the trial judge formed the view that, although there was not sufficient evidence to infer the necessary intent for murder, V.C. had committed a brutal and shocking attack on an unresisting and wholly blameless victim. Also consistent with the Court of Appeal’s guidance in those cases, the trial judge regarded it as an aggravating factor that the attack took place in public and in broad daylight. Against these factors, the trial judge balanced V.C.’s age, his lack of previous convictions, and the limited credit which had to be given to him for his guilty plea. Finally, the trial judge read and considered the victim impact statement that had been submitted by the applicants. All of these factors were ones which the trial judge was entitled, and indeed bound, to consider. His consideration of these factors and the full reasons given by him in his sentencing remarks mean that the four-year sentence the trial judge passed is not one which could be regarded as so manifestly inadequate as to raise an issue under Article 2.
30. The trial judge’s consideration of the victim impact statement also shows that the applicants were involved in the case. Although it could not have been easy for them to follow the proceedings (and they no doubt had difficulty in understanding why V.C. was acquitted of murder), the case file shows that efforts were made by the prosecuting authorities to explain to them what had happened. In the course of the proceedings before this Court, the applicants have been provided with the transcript of the trial judge’s ruling in respect of the murder charge and the transcript of his sentencing remarks. Those transcripts should go some way to dispelling any remaining confusion that might have existed as to the conduct and outcome of the criminal trial.
31. The effectiveness of that trial is not undermined by the fact that no reference was made by the Attorney General to the Court of Appeal on the grounds that the sentence given to V.C. was unduly lenient. Indeed, the fact that such a power exists shows that an effective judicial system, with appropriate safeguards for victims and their families, was in place. It is immaterial that the power was not used in this particular case, not least because the decision not do so was only taken on the basis of advice from senior counsel.
32. Finally, although the time V.C. spent in prison was much less than the four-year sentence passed, this was a result of the ordinary operation of the law on time spent on remand, eligibility for early release and deportation of foreign offenders. The trial judge was well aware that these mechanisms would apply when he passed the four-year sentence. Moreover, it is not for this Court to call into question such mechanisms and their existence does not weaken the effective judicial protection of the right to life (see, for instance, Maiorano and Others v. Italy, no. 28634/06, § 112, 15 December 2009; Mastromatteo v. Italy [GC], no. 37703/97, §§ 72-73, ECHR 2002‑VIII).
33. For the foregoing reasons, the Court is satisfied that the domestic authorities gave to this case the careful scrutiny which is required by Article 2 of the Convention. There has therefore been no breach of the respondent State’s positive obligations under that Article. The applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
B. Article 6
34. Article 6, where relevant, provides:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”
35. The issue of whether Article 6 applies to proceedings in which victims or their families were joined as civil parties was considered by the Court, sitting as a Grand Chamber, in Perez, cited above. The Grand Chamber found that the right to have third parties prosecuted or sentenced for a criminal offence could not be asserted independently: it had to be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law.
36. In England and Wales, there is no right of a victim or his family to be joined as a civil party to criminal proceedings. As such, and consistent with Perez, Article 6 does not apply in the present case. Therefore, to the extent that the applicants’ complaints under Article 6 are different from those already made and considered by the Court under Article 2, they are incompatible ratione materiae and must also be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy