[align=left]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.[/align]