R.F. AND A.F. v. THE UNITED KINGDOM - 3034/67 [1967] ECHR 33 (19 December 1967)

[هيثم الفقى]

R.F. AND A.F. v. THE UNITED KINGDOM - 3034/67 [1967] ECHR 33 (19 December 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicants are citizens of the United Kingdom. The male Applicantwas born in 1934 and is at present detained in Wormwood Scrubbs prisonin London. The female Applicant is detained at Askham Grange prison inYorkshire.On 27 July 1961, the Applicants and a third person were convicted atBirmingham Assizes of the murder of a child, having set fire to a housein which he was burned to death, knowing it to be occupied. The essenceof the case against the male Applicant was that he had taken part inthe conspiracy to set fire to the house and did not at any time clearlywithdraw from the conspiracy although it was not established that hetook any active part in starting the fire.The Applicants appealed on the ground that they had been convicted, inparticular, on the evidence of 2 witnesses who had committed perjury.However, the Court of Appeal, although it heard further evidence fromthe witnesses in question and came to the opinion that their evidenceat the trial could not be relied upon, decided that the conviction ofthe 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 caseto the Court of Appeal for reconsideration under the provisions ofSection 19 of the Court of Criminal Appeal Act, 1907, but this wasrefused on 2 February 1967.The Applicants' case for a retrial before the United Kingdom courts,as well as their Application before the Commission, rests onallegations that a considerable amount of evidence at the trial and,in particular, the police evidence relating to admissions allegedlycontained in statements made by the Applicants, was false.The Applicants claim that in these circumstances their trial anddetention 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 1967that he had been told by the prison authorities that he must obtainpermission by petition to the Home Secretary, in order to send hisapplication form to the Commission. He stated that this would probablyhinder his communicating with the Commission within the meaning ofArticle 25, paragraph (1), of the Convention, or, at the least, causeconsiderable delay. However, it appears from his letter of 2 Februarythat he had sent the application form to the female Applicant for hersignature although he states that he was still prevented from sendingit to the Commission.By a letter received on 13 February 1967, the male Applicant succeededin sending his application form to the Commission through a thirdparty, stating that he regretted that he was obliged to do this as hehad not been allowed to send it through the proper channels. He alsosaid it was in no way his wish to infringe the prison rules.In a further letter of 11 April 1967, the male Applicant complainedthat the Home Secretary had denied him facilities to obtain a reviewof his own conviction and that of his wife. However, on 3 May, withthe permission of the Home Secretary, he was permitted to apply on hisown behalf for habeas corpus by an informal letter to the Master of theCrown Office. He alleged that he had been convicted on perjuredevidence and so was not properly detained, and also that the HomeSecretary refused to produce him personally before the Court: heinvoked Articles 5, paragraph (4) and 6, paragraph (1), of theConvention.After proceedings at which the Applicant did not appear and was notrepresented, a Divisional Court of the High Court in London decidedthat as the Applicant was in execution from a court of competentjurisdiction there were no grounds disclosed for moving for a writ ofhabeas corpus and that the Applicant should be left, if so advised, tomake a formal application in accordance with the rules.The Applicant accordingly applied to the local Legal Aid Committee forfree legal assistance which was refused because the Applicant had notshown reasonable grounds for taking proceedings, and the Applicant wasso informed by a letter from the Secretary dated 4 July 1967. TheApplicant does not expressly state whether he is appealing against thisdecision but writes, "As I cannot argue my grounds whether to the lawsociety or the court without legal assistance which I cannot afford,[this refusal] evidences that I am in fact wholly shut out - which Ihave no doubt the Commission will regard as conclusive".The male Applicant also complained that he had not been permitted tosend letters to the Attorney General to request the reopening understatutory powers of an inquest on a person who was a witness at histrial and also letters to other persons, ie the coroner and witnessesat the inquest informing them of this request.The witness in question was examined by the Court of Appeal whichitself went into the question which the Applicant is raising, ieperjury or withdrawal of evidence by this witness. The Court came tothe opinion that the witness was unworthy of belief, both as regardsthe evidence he gave at the trial and the changed evidence given in theCourt of Appeal but maintained the conviction of Fletcher and his wifeas fully justified by other evidence which was before the jury.After the partial decision of 29 May 1967, and the subsequentadjournment of this Application on 31 May 1967, the Applicant, Mr RoyFletcher, made a further complaint.Prior to his trial on 10 July 1961, the Applicant was served with anindictment 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 wasconvicted of murder.

[هيثم الفقى]

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.

[هيثم الفقى]

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;

[هيثم الفقى]

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.