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43.
Article 5(4)
The applicant states that his case is analagous to those of X. v. United Kingdom and Van Droogenbroeck. Once released by
the Home Secretary on the ground that he was no longer a danger to the public he could only be lawfully detained again after review of his case by a court. In the present case this requirement cannot be satisfied by the decision of the court that originally convicted him.
44. It is submitted that the remedy of habeas corpus would not be sufficient for the purposes of Art. 5(4) as the court would not be able to deal with the substantive merits of the decision to re-detain him. This is clear from the case of Re Featherstone [1953] 37 Cr. App. Rep. 146 D.C. where the Lord Chief Justice stated:
"The court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the term of the sentence passed on him had expired."
V.
45. It is also clear from the case of Payne v. Lord Harris of Greenwich [1981] 1 W.L.R. 754 that no remedy by way of Judicial Review is available in respect of the Home Secretary's decision. Furthermore, the recent decision of the Divisional Court in R. Secretary of State, ex parte Gunnell (Queens Bench Division, decision of 2 November 1983) indicates that proceedings before the Parole Board are not judicial in character and that the circumstances in which judicial review could be sought in respect of a decision of the Board were thus limited.
46. It is further submitted that the Parole Board cannot be considered a court for the purposes of Art. 5(4) for the following
reasons:
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A prisoner is not entitled to legal advice to prepare his case. Nor is he allowed to be present at the hearing or to have anyone represent him. Although he is interviewed by members of the local Review Committee, these are not Independent representatives. was recognised in the Gunnell Case that they act as agents of the Secretary of State.
It
A prisoner is not informed of the evidence which is put before the Board and cannot question its accuracy.
He cannot call any witnesses to give evidence on his behalf nor examine any witnesses against him.
Hearings are not held in public. Nor is the decision of the Board given in public.
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