TNAG-1585-FCO40-2159-Hong-Kong-prisons-and-prisoners-1986 — Page 44

9787/82

- 15 ·

or he has exercised his discretion unreasonably, l.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). The 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.

55.

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. In this case 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 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 of such significance as to call for interference with the Parole decision by this court of a failure by the Secretary of State or by the Board to comply with one or more of the requirements of the Act or of the Regulations."

-

56.

It is further submitted that the Parole Board also affords the protection required by Art. 5(4). The Court has stated in dealing with the Mental Health Review Tribunal in the case of X v. United Kingdom, that a specialised body of this kind could be considered as a court provided it enjoys "the necessary independence and offers sufficient procedural safeguards appropriate to the categories of deprivations of liberty being dealt with". In the context of the recall of a prisoner the procedural safeguards embodied in Section 62 of the 1967 Act are sufficient. It is a statutory requirement that every case be referred to the Board, whose decision is binding on the Secretary of State, unlike that of the Mental Health Review Tribunal. It is a requirement that any representations made by the prisoner be put before the Board. Moreover the Secretary of State Is bound by paragraph 1 of Schedule 2 to the 1967 Act to appoint