Prison Service Order 4650 - Prisoners’ Voting Rights

Prison Service Order 4650 - Prisoners’ Voting Rights

by former prisoner John Hirst

Although the stated purpose of PSO 4650 is a consolidation document designed to bring together those Instruction to Governors, Advice to Governors, and Prison Service Instructions in relation to prisoners voting rights, it has the appearance of being an out of date newspaper given the progress of the law as it struggles to come to terms with the development of the law in this area. This PSO takes into account s.5 of the Representation of the People Act 2000, which allows Remand prisoners and those convicted but unsentenced, and those sent to prison for contempt of court, and those civil prisoners sentenced for non-payment of debt, to vote in the General Election, local elections, and the European Election.

The government is quite rightly coming under attack on the issue of prisoners voting rights. We have the odd situation whereby UK nationals serving time in other European prisons being able to vote, and other European nationals serving time in UK prisons being able to vote, but not UK nationals who are also EU citizens being able to vote if they are serving time in UK prisons. What PSO 4650 does show is that the Prison Service is ready and capable of implementing full prisoner enfranchisement if the government gives it the green light. Phil Wheatley, Director General of the National Offender Management Service, has confirmed firstly that the Prison Service legal advice was that the government would lose in the European Court of Human Rights, and secondly that the Prison Service is already geared up to implement the measures for full prisoner enfranchisement when the government gives the go ahead. This conflicts with the claim recently made by Lord Bach, the Parliamentary Under-Secretary of State, Ministry of Justice, in the House of Lords, where he stated that there would be “considerable practical implications for the courts and prison authorities and for the conduct of elections” by extending the franchise for convicted prisoners.

PSO 4650 highlights that the RPA 2000 has actually eased the process of allowing more prisoners to vote, and refers to the only implication being increased staff activity at polling times. This is really only to witness that prisoners declarations of identity are genuine.

The government is claiming that the present position is governed by s.3 of the RPA 1983. However, that was the position prior to Hirst v UK(No2) being decided by the European Court of Human Rights. And convicted prisoners are caught up in a No Man’s Land in between. PSO 4650 states that those convicted prisoners who are released on temporary licence (ROTL) at the time of an election cannot cast a vote. And yet, there is no restriction upon buying a Lotto ticket and indeed winning the jackpot whilst on ROTL!

Usually, a prisoner can go to the prison library and check up what his or her legal rights are by reading the Prison Act 1952, the Prison Rules 1999, and the various Prison Service Orders. But, as the prisoners votes case is showing, this area of the law requires searching further afield to discover where one stands and why that is the position. For example, historically, it is only by a consequence that convicted prisoners became disenfranchised in the first place. After 1832 those who owned land and property valued at £10 or more were allowed to vote. However, at common law those convicted of a felony and sentenced to 12 months or more in prison forfeited their land and property and because the vote was tied to this they also lost the vote. It is worth noting that those serving less than 12 months were allowed to vote, but it appears that no provision was actually made to allow them to exercise this right. The Forfeiture Act 1870 abolished the forfeiture of lands and goods of those convicted of treason or a felony, and s.2 disqualified anyone convicted of treason from holding public office and voting in the General Election but did not disqualify from voting in local elections. It would appear from this that those convicted of a felony or misdemeanours were not actually legally barred from voting, but no provision was made to allow convicted prisoners to vote. It was not until s.3 of RPA 1983 was passed that all convicted prisoners, regardless of the length of sentence, were barred from voting in the General Election and local elections. The distinction between those serving 12 months and over and those serving less than12 months disappeared. The Criminal Justice Act 2003 removed the distinction between those serving under and over 4 years.

The reason I mention these distinctions is because the government in its 2nd consultation exercise on prisoners votes is seeking to reintroduce such distinctions in options either to allow prisoners serving 4 years and under or those serving 12 months or under to be allowed the vote. PSO 4650 refers to The Working Party on Electoral Procedures 1999, which recommended maintaining the ban on prisoners votes. George Howarth MP argued that because of the nature of the crimes and custodial sentences, prisoners have lost the moral authority to vote. However, moral authority has never been a qualification for the franchise in the UK. Therefore, it cannot legally be used as an excuse to prevent prisoners from exercising their human right to vote.

In relation to who can vote in the European Election, both the EU Parliament and UK European Parliament websites state that any citizen of voting age who resides in a Member State can vote for a Member of the European Parliament. It is only when looking at disqualification for standing as a MEP is there any mention of those facing civil or criminal cases being barred from becoming an MEP under EU law, and the UK has extended the bar to exclude UK prisoners under the European Elections Act 2002, by making reference to those excluded by virtue of s.3 of RPA 1983. The big problem for the government here is that it can be claimed by UK prisoners that the EEA 2002 is incompatible with the Human Rights Act 1998.

Prisoners will be familiar with the cliff-hanger scene at the end of the original Italian Job where the luxury coach is teetering on the edge of the cliff. This is how close all convicted prisoners are to getting the vote. Whereas Michael Caine announced he had an idea what to do next, in complete contrast the government does not have a clue and is hoping for a miracle to save them from further embarrassment.