TNAG-1585-FCO40-2159-Hong-Kong-prisons-and-prisoners-1986 — Page 71

42

9787/82

SUBMISSIONS OF THE APPLICANT

The applicant states that since his conviction in 1966 the Court of Appeal has stated that life sentences should not be given in cases other than murder unless there is evidence of mental instability before the court. If such a doctrine had applied in 1966 he would not have been sentenced to life imprisonment.

Article 5(1)(a)

In June 1977 his licence was revoked by the Home Secretary on account of the escalation of his irresponsible behaviour. However the judge at his trial in October 1977 did not regard him as reverting to his previous bad behaviour and recommended that the licence be restored to him. This is important under Art. 5(1)(a) because the trial judge made such a recommendation after a full hearing in which the applicant was legally represented and in which he called evidence concerning the question of whether or not he should be released.

The Home Secretary, on the other hand, revoked the licence without hearing any representations from the applicant and without the applicant's being afforded an opportunity to question the evidence on which he based his decision. In addition, if the judge had himself revoked the licence (as he could do under the 1967 Act) this would have constituted a sentence against which the applicant could have appealed to the Court of Appeal which could have quashed the revocation. (R v. Welch 1982 Cr. App. (Sentencing) Rep. 213.)

It is submitted that once the decision had been taken to release the applicant on the grounds that he was safe to be at liberty, it was no longer open to the Home Secretary under the Convention to re-detain him without a further order of the court. As the Court has stated in X. v. United Kingdom, the enjoyment of a lengthy of period of liberty on conditional release might give rise to some doubt as to the continued applicability of Art. 5(1)(a). For example, in the present case, the decision to release the applicant in 1976 had been taken after detailed psychiatric reports on his character had been obtained. The decision to re-detain him, however, was taken without any such reports but only on probation reports. Probation officers have no qualifications in psychiatry. None of the offences in 1977 were remotely comparable to those in 1966 so as to justify the Home Secretary reaching any conclusion about the applicant's mental stability without expert medical opinion tested in open court.

Finally, the Home Secretary could have followed a different course in 1979.

The applicant could have been remanded in custody in 1977 until his trial in October when the court could have revoked his licence under the 1967 Act. Had this course been followed the applicant could have appealed to the Court of Criminal Appeal and would have been able to have his case fully argued before these

courts.