THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicants are citizens of the United Kingdom. The male Applicant

was born in 1934 and is at present detained in Wormwood Scrubbs prison

in London. The female Applicant is detained at Askham Grange prison in

Yorkshire.

On 27 July 1961, the Applicants and a third person were convicted at

Birmingham Assizes of the murder of a child, having set fire to a house

in which he was burned to death, knowing it to be occupied. The essence

of the case against the male Applicant was that he had taken part in

the conspiracy to set fire to the house and did not at any time clearly

withdraw from the conspiracy although it was not established that he

took any active part in starting the fire.

The Applicants appealed on the ground that they had been convicted, in

particular, on the evidence of 2 witnesses who had committed perjury.

However, the Court of Appeal, although it heard further evidence from

the witnesses in question and came to the opinion that their evidence

at the trial could not be relied upon, decided that the conviction of

the Applicants was justified by the remaining evidence. Accordingly,

it dismissed the appeal on 18 April 1962.

The Applicants have requested the Home Secretary to refer their case

to the Court of Appeal for reconsideration under the provisions of

Section 19 of the Court of Criminal Appeal Act, 1907, but this was

refused on 2 February 1967.

The Applicants' case for a retrial before the United Kingdom courts,

as well as their Application before the Commission, rests on

allegations that a considerable amount of evidence at the trial and,

in particular, the police evidence relating to admissions allegedly

contained in statements made by the Applicants, was false.

The Applicants claim that in these circumstances their trial and

detention constitute a violation of Articles 5 and 6 of the Convention.

They also complain of the refusal to grant them a retrial.

The male Applicant further complained in a letter of 27 January 1967

that he had been told by the prison authorities that he must obtain

permission by petition to the Home Secretary, in order to send his

application form to the Commission. He stated that this would probably

hinder his communicating with the Commission within the meaning of

Article 25, paragraph (1), of the Convention, or, at the least, cause

considerable delay. However, it appears from his letter of 2 February

that he had sent the application form to the female Applicant for her

signature although he states that he was still prevented from sending

it to the Commission.

By a letter received on 13 February 1967, the male Applicant succeeded

in sending his application form to the Commission through a third

party, stating that he regretted that he was obliged to do this as he

had not been allowed to send it through the proper channels. He also

said it was in no way his wish to infringe the prison rules.

In a further letter of 11 April 1967, the male Applicant complained

that the Home Secretary had denied him facilities to obtain a review

of his own conviction and that of his wife.  However, on 3 May, with

the permission of the Home Secretary, he was permitted to apply on his

own behalf for habeas corpus by an informal letter to the Master of the

Crown Office. He alleged that he had been convicted on perjured

evidence and so was not properly detained, and also that the Home

Secretary refused to produce him personally before the Court: he

invoked Articles 5, paragraph (4) and 6, paragraph (1), of the

Convention.

After proceedings at which the Applicant did not appear and was not

represented, a Divisional Court of the High Court in London decided

that as the Applicant was in execution from a court of competent

jurisdiction there were no grounds disclosed for moving for a writ of

habeas corpus and that the Applicant should be left, if so advised, to

make a formal application in accordance with the rules.

The Applicant accordingly applied to the local Legal Aid Committee for

free legal assistance which was refused because the Applicant had not

shown reasonable grounds for taking proceedings, and the Applicant was

so informed by a letter from the Secretary dated 4 July 1967. The

Applicant does not expressly state whether he is appealing against this

decision but writes, "As I cannot argue my grounds whether to the law

society or the court without legal assistance which I cannot afford,

[this refusal] evidences that I am in fact wholly shut out - which I

have no doubt the Commission will regard as conclusive".

The male Applicant also complained that he had not been permitted to

send letters to the Attorney General to request the reopening under

statutory powers of an inquest on a person who was a witness at his

trial and also letters to other persons, ie the coroner and witnesses

at the inquest informing them of this request.

The witness in question was examined by the Court of Appeal which

itself went into the question which the Applicant is raising, ie

perjury or withdrawal of evidence by this witness. The Court came to

the opinion that the witness was unworthy of belief, both as regards

the evidence he gave at the trial and the changed evidence given in the

Court of Appeal but maintained the conviction of Fletcher and his wife

as fully justified by other evidence which was before the jury.

After the partial decision of 29 May 1967, and the subsequent

adjournment of this Application on 31 May 1967, the Applicant, Mr Roy

Fletcher, made a further complaint.

Prior to his trial on 10 July 1961, the Applicant was served with an

indictment containing 2 charges, one for murder and a second for arson.

At his trial he was only required to plead to the first charge and was

convicted of murder.

At the end of the proceedings, counsel for the Crown made an

application to the judge requesting that the second count should remain

on the file and the judge agreed.

On 15 June 1967, the Applicant, with the leave of the Home Secretary,

applied to the Assize Court to be brought to trial on this second count

citing Article 6 of the Convention and received a reply from the Clerk

of Assize stating that the Court had no jurisdiction under the European

Commission of Human Rights. The Applicant complains that this is a

violation of his right to be tried within a reasonable time.

By a letter of 22 September 1967, the Applicant, Roy Fletcher, informed

the Commission that he is to be released on licence on 21 June 1968.

In the meantime he was selected to be placed on hostel (ie virtual

release). However, he has now been informed by the prison authorities

that he will not be placed on hostel until the proceedings on his

Application before the Commission have been concluded.

In reply to a request to state in what terms this decision was conveyed

to him, the Applicant wrote as follows:

"On Wednesday afternoon, 30 August 1967, I appeared before the hostel

selection committee for consideration with regard to the hostel scheme.

Subsequently, I was recalled before the Board to be informed of their

decision and, on announcing the verdict, the Chairman expressly stated

- 'You have been accepted for the hostel scheme but in view of the fact

that your case is before the European Commission your placing on hostel

will be delayed until the case has been determined'."

In reply to a letter subsequently addressed to the prison authorities

on behalf of the Applicant the Governor wrote on 9 October 1967, "...

Fletcher's selection for the hostel will in no way be prejudiced by his

application to the European Court of Human Rights".

However, the Applicant states that on 26 October 1967, he was again

summoned before the Chairman of the Hostel Selection Committee and

informed that under no circumstances would he be permitted to enter the

hostel until after his application to the European Commission had been

finalised.

History of the proceedings

Whereas the proceedings before the Commission may be summarised as

follows:

The Application was lodged with the Secretariat of the Commission on

3 January 1967, and entered in the special register provided for by

Rule 13 of the Commission's Rules of Procedure on 27 January 1967.

On 10 March and 8 May 1967, the case was submitted to a group of 3

members for a preliminary examination in accordance with Rule 34 of the

Rules of Procedure.

On 29 May 1967, the Commission examined the Application and declared

inadmissible the Applicants' complaints relating to the proceedings on

their trial and on appeal and the refusal by the Home Secretary to

refer their case to the Court of Criminal Appeal, and adjourned

consideration of the Applicants' further complaints.

On 12 July 1967, the Commission again examined the Application and

declared inadmissible the Applicants' complaints relating to the

refusal of free legal assistance for the purpose of presenting a formal

application for habeas corpus and the refusal by the Home Secretary to

permit the Applicants to write to the Attorney General in order to

obtain the reopening of an inquest on a person who had been a witness

at the Applicants' trial.

On 18 July 1967, after further deliberation, the Commission decided to

give notice to the United Kingdom Government in accordance with Rule

45, paragraph (3) (b) of the Rules of Procedure of that part of the

Application which related to the refusal by the Assize Court to proceed

with the trial on the count of arson which was left on the file at the

termination of the Applicants' trial in July 1961, and to invite the

respondent Government to submit its observations on the admissibility

of this part of the Application.

The Government of the United Kingdom submitted its observations

(Document D.20.733) on 25 September 1967 and the Applicants submitted

their observations in reply (Document D.20.999) on 12 October 1967

while further observations were submitted on their behalf on 19 October

1967.Submissions of the Parties

Whereas the submissions of the parties may be summarised as follows:

1. On the question whether a charge remaining on the file after a

conviction for murder is a charge to which the provisions of Article

6, paragraph (1) of the Convention applies

The Respondent Government states that, at the time of the Applicants'

trial, it was a rule of practice established in the case of The King

v. Jones [1918] 1. KB 416) that counts charging other offenses were not

included in an indictment for murder or manslaughter. Accordingly,

where an indictment for a less serious offence was preferred at the

same time as an indictment for murder, it was the practice to arraign

the accused person only on the indictment for murder and, if a

conviction on that charge resulted, not to proceed with the second

indictment for the less serious offence unless the indictment for

murder was quashed on appeal. Upon a conviction for murder it was,

therefore, the practice for the Court to order that the second

indictment should remain in the file. It was then, and continues to be,

the invariable rule that, where the second indictment has been so

ordered to remain on the file, it shall not be proceeded with without

the leave of the Court or the Court of Criminal Appeal.

The Respondent Government states that it is not aware of any case in

which a second indictment thus ordered to remain on the file has

subsequently been proceeded with while the conviction on the charge of

murder remained undisturbed, whether before or after a sentence of

imprisonment resulting from that conviction has been served. Where on

the facts of the case the conviction of murder would necessarily have

involved the finding that the convicted person was guilty of a less

serious offence, which was the subject-matter of a second indictment,

to allow the second indictment to be tried would indeed be an abuse of

the process of the Court. On the latter point the Respondent Government

refers to the decision of the Court of Appeal, Criminal Division, on

28 July 1967, in Regina v. Thatcher. The Respondent Government points

out that the Applicants, after their conviction on the indictment for

murder, made no objection to the order that the second indictment

should remain on the file. Nor was any application made by them or on

their behalf in respect of that second indictment at the time of the

hearing of their appeal.

The Respondent Government submits that, where a charge remains on the

file in such circumstances, that charge is not one to which the

provisions of Article 6, paragraph (1) can be said to apply. That

charge cannot be proceeded with without the leave of the Court and, for

the reasons mentioned above, such leave would not be granted. In these

circumstances the Applicants are not in peril in respect of the charge

in question and the refusal to bring them to trial does not infringe

the provisions of Article 6.

The Applicants state that, in its interpretation of the rule of

practice laid down in The King v. Jones, the Respondent Government

defines that rule as an authority allowing the Crown "to have 2 bites

at the cherry" by instituting a second prosecution on the less serious

offence, should the charge of murder fail. The rule enunciated was laid

down solely to protect a defendant from a jury who may be confused by

additional counts on the indictment. That rule was not intended to, and

does not grant the Crown any additional powers which it did not already

possess before that rule was laid down.

The Applicants then quote the Respondent Government as stating that

"... where the second indictment has been ordered to remain on the

file, it shall not be proceeded with without the leave of the Court or

the Court of Appeal."  As to this, they observe: "The error of that

assertion is shown on page 2, paragraph E, of the transcripts of Regina

v. Thatcher in which, the Lord Chief Justice of England, Lord Parker,

expressly ruled that, "... the jurisdiction of the Court (the Court of

Appeal (Criminal Division) only arises in the case of applications and

appeals by persons convicted on indictment."  Thus, the Court of Appeal

(Criminal Division) hold no jurisdiction to order an indictment, which

has been ordered to remain in the file, to be resurrected. It is a

matter of law and common sense that the court of trial which has

ordered the second indictment to remain on the file cannot reconsider

its own order unless on the application of some interested party. Thus

the court of trial does not hold power, by itself, to resurrect a

second indictment which it had previously ordered to remain on the

file. In Regina v. Connelly Mr Justice Stephenson expressly stated that

"... he still held the view that Connelly ought not to be tried on this

second indictment but he had no power to stop a trial in view of the

Attorney General's refusal to enter a nolle prosequi and the Director

of Public Prosecutions' refusal to offer no evidence. Should the

Applicants be arraigned on the second indictment a nolle prosequi could

not properly be entered because its effect would be against the

interests of justice as it would prevent the Applicants from presenting

the new evidence of their innocence to a jury and would conceal from

the court the evidence of guilt of those who had conspired fraudulently

to obtain the conviction of the Applicants on a charge of murder. Thus

it remains entirely a matter for the Director of Public Prosecutions

whether, in such instances, a second indictment ordered to remain on

the file should be resurrected and determined by a jury.

Under the constitution a British Government cannot bind a future

government. Thus the Respondent Government can speak only for itself

and the present Director of Public Prosecutions when it states that the

Applicants are not in peril as a consequence of the second indictment

being ordered to remain on the file .... A future executive may decide

to allow all undetermined indictments which have been ordered to remain

on the file, to be determined by a jury's verdict ... . It is a further

fact that in the United Kingdom there is no statute of limitations in

respect of criminal offenses and, once an indictment has been drawn,

the mere passage of time will not impair the validity of the indictment

within the lifetime of the accused named on that indictment.

In Regina v. Connelly Mr Justice Stephenson said "... generally

speaking the prosecutor has as much right as a defendant to demand the

verdict of a jury". It must follow that, if the prosecutor and

defendant hold equal rights to demand the verdict of a jury in respect

of an indictment drawn, then the Applicants must possess the right to

demand that the second indictment on the charge of arson be put to a

jury because, as has been shown, the Director of Public Prosecutions

is the only Department under the Crown which holds the right to

resurrect the indictment of the charge of arson.

As the defendant and the prosecutor have equal rights to demand the

verdict of a jury once an indictment has been drawn, and it must be

remembered that Mr Justice Stephenson was never corrected on that

ruling by the Court of Criminal Appeal when the case went before that

Court, it cannot be an abuse of a jury in respect of the second

indictment when he has been convicted on the first indictment of

murder. To submit otherwise would be to submit that a prosecutor has

greater rights to a jury's verdict than a defendant, which is plainly

immoral. In any event, there is no parallel between the Applicant's

application and that of Regina v. Thatcher.

Since the conviction of the Applicants on the charge of murder. They

have obtained new evidence which absolutely establishes their innocence

and, after many efforts, they have been unable to produce that evidence

in a court of justice because of the actions of the Respondent

Government. Mr Thatcher had never revealed any evidence of his

innocence which was not produced during his trial or even asserted that

such evidence existed. The mere fact that the Respondent Government is

unaware of any case in which a second indictment, thus ordered to

remain on the file, has been subsequently proceeded with while the

conviction of murder remained undisturbed is, on the Government's own

showing, uncertain and, in any event, irrelevant.

The Applicants further submit that under Article 6, paragraph (2) the

Commission and the Respondent Government are required to presume the

Applicants to be innocent to unlawfully and maliciously setting fire

to the house. That being so, unless the Applicants are brought to trial

on the second indictment, the impossible situation will continue

whereby the Commission and the Respondent Government presume the

Applicants to be innocent of an act resulting in the death of a child

whom the Applicants have been convicted of murdering;  thus the

non-implementation of Article 6, paragraph (1) will require the

Respondent Government and the Commission to rule that they are unable

to comply with Article 6 of the Convention in paragraphs (1) and (2).

2. On the question as to whether the Applicant's real purpose in

applying for the charge of arson to be heard is to obtain some form of

retrial

The Respondent Government submits that the purpose of the Applicants

in seeking to have brought to trial the charge of unlawfully and

maliciously setting fire to the house is not to have that charge

disposed of in accordance with the principles underlying Article 6 of

the Convention, but to reopen the facts determined at their trial and

thus to obtain a second avenue of appeal against their conviction for

murder. This is made clear by the fifth and sixth paragraphs of their

letter of 30 June 1967, which is as follows: "The implications for me

of refusal to bring me to trial on a charge [on] which I have been

committed will be quite clear to the Commission since I could not now

be found guilty of arson, the evidence making that impossible. It would

follow, ipso facto, that I was not guilty on the charge of murder, the

arson having been the alleged cause of the murder". The Respondent

Government accordingly submits that the object of the Applicants in

seeking to have the charge of arson brought to trial is in effect to

secure a retrial of the issues determined in 1961 and that, for this

reason also, the complaint is inadmissible.

In reply, the Applicants submit that there is no question of requesting

a retrial of the indictment which has already been before a jury. The

Applicants merely seek to invoke Article 6, paragraph (1) of the

Convention in respect of the undetermined indictment which, unless it

is discharged by a jury, will always constitute a threat to their

future liberty.

It is the further submission of the Applicants that, if implementing

Article 6, paragraph (1), leads to a retrial of the issues tried in

1961, then that natural result does not, by itself, invalidate the

Application even though the Convention does not expressly provide for

retrial;  if such retrial should ensue, it would clearly be in the

interests of justice and therefore in sympathy with the terms of the

Convention. Furthermore, although it is conceded that a retrial is not

secured by any Article of the Convention, no Article of the Convention

expressly rules out a retrial which is the natural result of the

implementation of any of the Articles of the Convention. Finally, it

is the Applicant's submission that, although perhaps none of the High

Contracting Parties allows for a retrial by right of its internal law,

none of the High Contracting Parties expressly forbids a retrial by

statute. Indeed, in the instance of the United Kingdom Government,

since the trial of the Applicants in 1961, a law has been introduced

which, in certain circumstances, permits a retrial of events which have

received the verdict of a jury.

THE LAW

Whereas, with regard to the Applicants' complaints that they were not

tried within a reasonable time on the count of arson which was left on

the file at the conclusion of their trial in 1961, it is to be observed

that, insofar as the complaint relates to the period before 14 January

1966, under the terms of the United Kingdom's declaration of that date

recognising the Commission's competence to accept petitions under

Article 25 (Art. 25) of the Convention, the United Kingdom only

recognises the Commission's competence to accept petitions so far as

they relate to acts or decisions, facts or events occurring or arising

after 13 January 1966; whereas it follows that an examination of this

part of the Application is outside the competence of the Commission

ratione temporis;

Whereas, moreover, in regard to the period after 13 January 1966, an

examination of this complaint as it has been submitted, including an

examination made ex officio, does not disclose any appearance of a

violation of the rights and freedoms set forth in the Convention and

in particular in Article 6 (Art. 6); whereas in coming to this

conclusion, the Commission is satisfied that it is the established

practice in English law that a second indictment left on the file is

never proceeded with so long as the conviction on the charge of murder

remains undisturbed;

whereas the Commission considers that there is thus in fact no criminal

charge against the Applicants which requires to be determined and that

there is thus no violation of Article 6 (Art. 6) of the Convention;

Whereas in this connection the Commission refers to the decision of the

Court of Criminal Appeal in the case of Regina v. Thatcher cited by the

Respondent Government; whereas moreover the Commission has noted that

it appears from the case of Regina v. Thatcher cited by the Respondent

Government; whereas, however, this is not the Applicants, that

different considerations may apply where a conviction for murder has

been set aside; whereas, however, this is not the Applicant's case

since, following the rejection of their appeal, their conviction

stands;

Whereas it follows that this part of the Application is manifestly

ill-founded within the meaning of Article 27, paragraph (2)

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

Whereas the Respondent Government has suggested that the Applicants'

real object in applying for the charge of arson to be heard was to

obtain some form of retrial; whereas the Applicants have contested this

suggestion; whereas 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 no right to retrial is as such

included among the rights and freedoms guaranteed by the Convention;

Whereas in this respect the Commission refers to its previous

decisions, Nos 864/60 - X v. Austria - Collection of Decisions No 9,

page 17, and 1237/61 - X v. Austria - Yearbook V, page 96;  whereas the

Commission does not consider it necessary to determine what was the

real object of the Applicants in this respect as it has already found

this part of the Application to be inadmissible; whereas, however, if

the Respondent Government's submission was to be accepted, this part

of the Application is also incompatible with the provisions of the

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

of the Convention;

Whereas with regard to the Applicant's complaint that his participation

in the hostel scheme is being postponed pending the determination of

his Application to the Commission, it does not appear in the actual

circumstances of the case that the Applicant was hindered in the

effective exercise of his right of petition under Article 25  (Art. 25)

of the Convention;

Now therefore the Commission

1. Declares this Application inadmissible.

2. Decides to take no further action in regard to the allegations

relating to a hindrance of the Applicants' right of petition under

Article 25 (Art. 25) of the Convention.