40
f
9787/82
Finally, it is submitted that if there is no right to release on licence (Application N° 4133/69) the revocation of a licence cannot give rise to the infringement of any rights which have not already been taken away by virtue of the original sentence.
Article 5(4 )
Referring to the decision of the Court in the Vagrancy cases (para. 76) it is submitted that the supervision required by Art. 5(4) was incorporated in the machinery of the court of trial and the appeal from it.
The applicant's case is to be distinguished from those cases concerning vagrancy and recidivism, where the court was concerned with detention imposed by the executive. The applicant's detention resulted directly from a sentence imposed by the court by which he was convicted.
In the case of vagrants and recidivists it may occur that they are no longer liable to be detained under the original sentence. The applicant, however, always remains subject ot the original life sentence and entitled only to conditional release. Furthermore the case falls clearly outside Art. 5(1)(e) as the Commission decided in the case of X v. the United Kingdom, Application N° 9089/80, D.R. 24 p.227).
In the alternative, it is submitted that the applicant was able to have the lawfulness of the decision to re-detain him in 1977 examined by a court. In this respect it is open to any prisoner recalled to apply for a writ of habeas corpus to challenge the lawfulness of his detention. The detention will not be lawful if the Secretary of State has failed to comply with any statutory requirement or he has exercised his discretion unreasonably, i.e. in bad faith or capriciously, or for a wrongful purpose (see R v. Governor of Brixton Prison, ex parte Soblen, 1962 [3 ALL E.R, 641]). decision may also be upset if it is not supported by sufficient evidence or is one which no reasonable authority could have reached (In re Shadid Iqbal, 1978 [3 W.L.R 884]). It is stressed that if the Secretary of State were to exercise his discretion to recall a prisoner arbitrarily, the resulting detention would be unlawful and susceptible of review in habeas corpus proceedings.
The
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) shows that judicial review may be available if the Parole Board has acted unfairly or capriciously or taken a decision which no reasonable Parole Board could take. Lord Justice Watkins stated as follows:
"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