TNAG-1585-FCO40-2159-Hong-Kong-prisons-and-prisoners-1986 — Page 70

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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."

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 persons who are independent. Thus the Board includes amongst its members three High Court and three Circuit judges, two clergymen, a retired police Chief Inspector and a number of psychiatrists. operates independently from the Home Office. Accordingly, it is submitted that the Parole Board is a Court within the meaning of Art. 5(4) when it deals with a case of revocation of licence.

Periodic Review

It

It is not accepted that there can be a requirement of periodic judicial review of the lawfulness of detention in a case where a prisoner is serving the sentence imposed on him by the court by whom he was convicted. This is not a case of deprivation of liberty on... grounds of mental instability. The applicant was originally sentenced to imprisonment because he was considered to present a danger to the society. In this respect reference is made to the Commission's decision on admissibility in the case of X. v. United Kingdom

As the Commission stated, (Application N° 9089/80, loc. cit.).

deprivation of liberty under Art. 5(1)(e) by the changing nature of mental illness requires periodic judicial review under Art. 5(4). On the other hand, Art. 5(1)(a) "is a mere formal requirement which justifies the detention of a person convicted by a competent court. The detention is ordered as a retributive punishment for the immutable fact that the person concerned has been found guilty of an offence. Therefore the grounds on which the decision to convict and sentence were taken are not, unlike the case of a person of unsound mind, subject to change during detention".