CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 décembre 1967

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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.