Justice for the blackest malefactors? Determinate prison sentences, early release, and the ECHR

Richard A Edwards

doi:10.1017/lst.2022.1

Abstract

AbstractIn 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.

Highlights

In Khan counsel for the Secretary of State contended that ‘it is well established in the case law that there is no right to early release ... [it is] always open to Parliament to change the early release provisions’ relating to serving prisoners.1 Sir James Eadie QC contended that ‘a change to the administration of a penalty, by an alteration to the early release provisions or the like, will not engage Article 7’.2 The High Court agreed, concluding that, amongst other things, that neither Article 53 nor Article 74 of the ECHR had any application with respect to retrospective changes to early release
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
What TORERA 2020 gives with one hand, it takes with the other

Summary

Introduction

In Khan counsel for the Secretary of State contended that ‘it is well established in the case law that there is no right to early release ... [it is] always open to Parliament to change the early release provisions’ relating to serving prisoners. Sir James Eadie QC contended that ‘a change to the administration of a penalty, by an alteration to the early release provisions or the like, will not engage Article 7’.2 The High Court agreed, concluding that, amongst other things, that neither Article 53 nor Article 74 of the ECHR had any application with respect to retrospective changes to early release. The High Court agreed, concluding that, amongst other things, that neither Article 53 nor Article 74 of the ECHR had any application with respect to retrospective changes to early release. The court missed an opportunity to examine the application of both articles more fully in this important context. This paper will argue first that Article 5 does apply in this context in a subtle and complex manner. This paper outlines how the right to liberty and security enjoys an increasingly important, if somewhat overlooked, relevance in the modern penal context.

Background

Findings

Conclusion