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In the light of the High Court's decision in R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932 this paper contends that a revised approach to the interpretation of Articles 5 and 7 of the European Convention on Human Rights is needed. The paper argues that the Article 5 ECHR right to liberty and security plays a developing, though overlooked, role in the context of regulating determinate prison sentences. English law's conclusion that Article 5 of the ECHR has little to offer in this context is wrong and needs to be reconsidered. Equally, a more generous interpretation of Article 7 of the ECHR is now required: an approach which reflects the reality of determinate sentences.
The practice of criminal justice in western and central Europe was more violent between 1400 and 1600 than before or afterwards, but sensational propaganda produced during this period exaggerates the prevalence of torture and execution. Many criminals evaded justice altogether and most defendants who were caught and brought to trial were subject to quick and relatively merciful justice. Fines, short prison sentences and banishment were far more commonplace than brutally painful execution rituals. As early as the seventeenth century, the practice of both torture and execution declined, the result of changes in Christianity, the growing confidence of secular states, and concerns that inflicting pain was inherently abusive. Enlightenment authors such as Voltaire and Beccaria, who insisted on judicial reform in the late eighteenth century, grossly distorted the actual practice of criminal justice in their own era in ways that have allowed historians to assume that criminal justice in the pre-modern period was more violent than it actually was.
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