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to challenge the lawfulness of his continued detention. The Commission finds therefore, that the possibility of initiating habeas corpus proceedings does not secure the enjoyment of the right guaranteed in Art. 5(4).
98.
Judicial Review in respect of the Decision of the
Home Secretary and the Parole Board
The Government have referred to the recent decision of the Divisional Court in the case of R v. the Secretary of State for the Home Department, ex parte Gunnell (Queens Bench Division, decision of 2 November 1983) as authority for the proposition that judicial review may be available in respect of decisions of the Parole Board or the Home Secretary if they have acted unfairly or capriciously or taken a decision which no reasonable Parole Board could take.
99. The Commission, however, having regard to the case-law in this area referred to by the parties, considers that the existence of this remedy is very uncertain and does not meet the requirements of accessibility and effectiveness referred to above. It notes, in particular, the expressions of doubt by Lord Justice Watkins in the Gunnell case as to the scope of the remedy. Although Lord Justice Watkins considered that the Parole Board and the Home Secretary had a duty to act fairly, he qualified his remarks in the following way:
"I do not wish to be understood as saying that a decision of the Secretary of State or the Parole Board is in no circumstances open to challenge in this court. It is unnecessary to decide such a fundamental point in this case. It has never been successfully challenged up to now and I cannot envisage any challenge, assuming it is open to a prisoner to make one in the future, succeeding unless it can be clearly demonstrated that there has been a breach of natural justice insofar as those principles can properly be said to apply to the work of the Parole Board and of the Secretary of State
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100. Furthermore, while it appears from the above decision that the Parole Board and the Home Secretary have a duty to act fairly, the scope of judicial review is not wide enough to be brought to bear on the factors which govern the lawfulness of the applicant's detention, namely, whether his behavioural problems continue to exist and the reasonableness of the Home Secretary's decision that the applicant remains a danger to public safety.
The Commission finds, therefore, that judicial review does not enable the applicant to determine the lawfulness of his re-detention.
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