TNAG-1585-FCO40-2159-Hong-Kong-prisons-and-prisoners-1986 — Page 43

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1967 are complied with, his detention after recall is lawful by virtue of the original conviction and sentence. In this respect it is not comparable with cases concerned with detention on the grounds of mental ill-health. In the Van Droogenbroeck case the Court said that the Convention allowed 'a measure of indeterminacy in sentencing and does not oblige the Contracting States to entrust to the Courts the general supervision of the execution of sentence". In the applicant's case there is sufficient connection between the revocation of his licence in October 1977 and the life sentence passed in December 1966 for the former to be contained within the latter for the purposes of Art. 5(1)(a).

49. The facts amply reveal that the applicant has remained a danger to the public. Moreover as the Court pointed out in X. v. United Kingdom the national authorities are in a better position than the Convention organs to assess whether the applicant was a danger to the public (judgment of 5 November 1981, para. 43, at p.20).

50. 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)

51. Referring to the decision of the Court in the Vagrancy case (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.

52.

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.

53.

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 to 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. United Kingdom (Application N° 9089/80, D.R. 24 p. 227).

54. 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