[align=left]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;[/align]