THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a British citizen, born in 1913 and at present

detained in Wormwood Scrubs Prison, London.

He was convicted on .. March, 1964 at Buckinghamshire Assizes on two

counts of conspiracy to stop and rob a mail train, and of being one of

the robbers of the train, and was sentenced to concurrent terms of 21

and 24 years' imprisonment. The applicant appealed against the

judgment. The Court of Criminal Appeal, on .. July, 1964, dismissed the

appeal against his conviction on the first count, quashed the

conviction of the second count and substituted a verdict of guilty on

three counts of receiving, and passed concurrent sentences of 14 years

on the four counts. It appears that the court based their decisions on

the following facts.

The applicant and one Y. were arrested in B. six days after the great

train robbery. They had aroused the suspicions of a landlady and tried

to resist arrest. Keys found on the applicant opened suitcases in an

Austin van containing £56,000, much of which came from the train

robbery, which the applicant, according to police evidence, admitted.

At the flat which the two men had rented in B. the police found another

£6,000 mixed up with the applicant's personal property.

The applicant's defence was and still is that he had known Y. for some

time but had no knowledge of the train robbery until he read about it

in the newspapers. He claimed to have travelled to Oxford from his home

in London on the day after the robbery to collect some money that Y.

owed him and said that he did not know until later on that the cases

found in the Austin van contained money.

It appears that in his appeal the applicant sought to call Y. to give

further evidence that he had played a minor part in the affair. He also

sought to call his wife and son to testify that he had been at home

when the robbery took place. The Court of Criminal Appeal ruled that

the latter evidence had been available at the time of the trial and

that Y.'s evidence would now be very much in doubt in view of his

apparent change of heart since he had been unwilling to make a

statement at the trial. The Court, therefore, refused to allow the

witnesses named by the applicant.

In May, 1966, the applicant applied for a writ of Habeas Corpus and was

informed by letter of .. June, 1966 from the Head Clerk of the Crown

Office that such application must be made in court and in accordance

with Order 59 of the Rules of the Supreme Court and, further, that a

Divisional Court of the Queen's Bench Division, on .. June, 1966, had

considered the application and had refused to relax the said rules in

his favour or to grant him legal aid. The Court stated in its decision

that the applicant's complaints of misconduct on the part of his

counsel and of the police as well as his allegations that evidence was

suppressed were clearly an attempt only to use the process as a means

of re-opening an appeal.

The applicant then applied to the Law Society for legal aid but

received negative replies by letters of .. November and .. December,

1966. The solicitors, W. and Sons and the official solicitor, by

letters of .. October and November, 1966 November, 1966, also rejected

his requests for assistance. The applicant, therefore, again informally

petitioned in November, 1967 for a writ of Habeas Corpus, claiming that

he had new evidence to prove his innocence. He was informed by letter

of .. November, 1967 from an Assistant Master of the Crown Office that

prisoners were not permitted to make more than one informal approach

for assistance to move for a writ of Habeas Corpus in respect of the

same matter. The applicant was also informed by letter of .. January,

1968 from the Registrar of the Court of Criminal Appeals that he had

no right to bring a fresh appeal.

It appears that various representations were made by, or on behalf of,

the applicant with the Home Office. However, by letters of .. June and

.. November, 1966, the applicant was informed that no action could be

taken on his behalf.

The applicant complains that he was wrongly convicted and sentenced.

He claims to be innocent and repeats that he only met Y. to collect the

money which he owed him. He contends that he is a victim of a criminal

conspiracy to which the police and judiciary, including his legal

advisers were all parties; that his trial and also his appeal were

wilfully rigged and all evidence in his favour suppressed; he alleges

that three witnesses vital to prove his innocence were not allowed to

give any kind of evidence and that he was represented against his will

by Jewish counsel.

The applicant alleges violation of Articles 6, paragraph (3) (c) and

(d), and 11 of the Convention and requests the Commission to help him

establish his innocence.

THE LAW

Whereas, with regard to the applicant's complaints concerning his

conviction and sentence, Article 26 (Art. 26) of the Convention

provides that the Commission may only deal with a matter "within a

period of six months from the date on which the final decision was

taken"; and whereas the Commission has already held in a number of

previous cases that the "final decision" within the meaning of Article

26 (Art. 26) refers solely final decision involved in the exhaustion

of all domestic remedies according to the generally recognised rules

of international law (see Application No. 918/60 - X. v. Federal

Republic of Germany - Collection of Decisions, Vol. 7, p. 108);

whereas, in the present case, the applicant was serving a prison

sentence after conviction and after having unsuccessfully appealed to

the Court of Criminal Appeal;

Whereas no further right of appeal was available to the applicant,

there being no indication that there was in the present case any issue

of public interest, for the determination of which leave to appeal to

the House of Lords would have been given.

Whereas, furthermore, his subsequent application for an order of Habeas

Corpus cannot be considered as part of the normal appeal procedure in

the United Kingdom judicial system;

Whereas, indeed the object of an application for an order of Habeas

Corpus is to enable a detained person to have determined the legality

of his detention, such order would be inapplicable in the case of a

person in detention following conviction by a court of competent

jurisdiction;

Whereas it follows that, in the circumstances of the present case, an

application for an order of Habeas Corpus was not an effective and

sufficient remedy and does not, therefore, constitute a domestic remedy

under the generally recognised rules of international law;

Whereas it follows that the decisions regarding this application for

an order of Habeas Corpus cannot be taken into consideration in

determining the final decision for the purpose of applying the six

months' time-limit laid down in Article 26 (Art. 26); whereas,

therefore, the final decision regarding the applicant's conviction and

sentence is the decision of the Court of Criminal Appeal which was

given on .. July, 1964; whereas the present application was not

submitted to the Commission until .. December, 1967, that is more than

six months after the date of this decision; whereas, furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period;

Whereas it follows that this part of the application has been lodged

out of time (Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the

Convention);

Whereas, in regard to the applicant's complaints relating to the

refusal of his application for the issue of an order of Habeas Corpus

and the court proceedings concerned, it is to be observed that the

Convention, under the terms of Article 1 (Art. 1), guarantees only the

rights and freedoms set forth in Section I of the Convention; and

whereas, under Article 25, paragraph (1) (Art. 25-1), only the alleged

violation of one of those rights and freedoms by a Contracting Party

can be the subject of an application presented by a person,

non-governmental organisation or group of individuals; whereas

otherwise its examination is outside the competence of the Commission

ratione materiae; whereas the Commission has already noted that an

order of Habeas Corpus does not form part of the normal appeal

procedure in criminal cases; whereas therefore, as indicated by the

Criminal Court, the applicant was clearly attempting, by applying for

such writ, to obtain a re-opening of the criminal proceedings against

him; whereas the Commission has frequently stated that the right to

such retrial is not as such included among the rights and freedoms

guaranteed by the Convention; and

Whereas, further, insofar as he complains of the proceedings in

connection with his application for a Habeas Corpus order, the

Commission has consistently held in analogous proceedings relating to

an application for a retrial that such proceedings fall outside the

scope of Article 6 (Art. 6) of the Convention (see Applications Nos.

864/60, X. v. Austria - Collection of Decisions, Vol. 9, p. 17 and

1237/61, X. v. Austria - Yearbook, Vol. V, p. 96); whereas it follows

that this part of the application is incompatible with the provisions

of the Convention within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE