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Tuesday, December 28, 2010

Lap land and pass the parcel (part one)

Lap land and pass the parcel (part one)

When this article was published on 15 December and was followed by this article on 16 December and this press release on the Cabinet Office website on 17 December, I began to have doubts and wondered whether I had misread the Hirst v UK (No2) judgment. So, over the Christmas period I reread the judgment again. I have concluded that I have not misread the judgment. Therefore, either the government’s advisers have misread the judgment or it is another example of government spin. That is, the government has misled Parliament, the media, and the public over the issue of convicted prisoners and the franchise. In any event, for the benefit of those who have been misled I will take them through my judgment step by step with added commentary provided by yours truly. When the coalition returns after the Christmas holiday, my belated celebrations include pass the parcel. The ticking is not an alarm clock; rather it is the time bomb which Baroness Scotland dropped in Kenneth Clarke’s lap before she left office and he dropped in Nick Clegg’s lap as part of the coalition agreement. The Cabinet Office has attempted to pass it back to me, however, it is marked return to sender and I am dropping it back in Kenneth Clarke’s lap. Part of my plan is to drag the FCO back into it all, and to get William Hague to apply pressure upon the MoJ to sort it all out before February 2011.

According to the European Court of Human Rights judgment in Hirst v UK (No2) “The United Kingdom Government (“the Government”) were represented by their Agents, initially by Mr J. Grainger and subsequently by Ms E. Willmott, both of the Foreign and Commonwealth Office, London”. William Hague has stated that human rights will be at the forefront of the FCO’s foreign policy. My case is binding on the UK, and yet the recent written answer given by Mark Harper in the House of Commons, outlining the government’s proposals, on the Voting Entitlement of convicted prisoners falls far short of fully complying with Hirst No2. Quite apart from the conflict between the FCO’s and the Cabinet Office and MoJ’s positions, this will mean that the UK is heading for a conflict with the Committee of Ministers of the Council of Europe who’s task is to supervise execution of the Court’s judgments. It also means that the UK is in breach of the Interlaken Declaration.

“The applicant alleged that as a convicted prisoner in detention he had been subject to a blanket ban on voting in elections. He invoked Article 3 of Protocol No. 1 alone and in conjunction with Article 14, as well as Article 10 of the Convention…In its judgment of 30 March 2004 (“the Chamber judgment”), the Chamber held unanimously that there had been a violation of Article 3 of Protocol No. 1 and that no separate issues arose under Articles 14 and 10 of the Convention”.

“The applicant and the Government each filed a memorial. Observations were also received from the Prison Reform Trust, the AIRE Centre and the Government of Latvia, which had been given leave by the President to intervene in the written procedure”. Although Latvia joined Hirst v UK (No2) as an interested party in 2005, as a result of the judgment, Latvia has since, in 2010, allowed all prisoners to vote in the country’s recent general election. The Republic of Ireland was the first country to fully comply with the Hirst No2 judgment in 2006.

There appeared before the Court:
(a) for the Government
Mr R. SINGH, Q.C.,
Mr B. DAW,
(b) for the applicant
The Court heard addresses by Mr Singh and Ms Krause.

It is worth pointing out that under the law there is supposed to be equality of arms and yet as can be seen from the above list it worked out at 5-2 in the government’s favour. Even if I was added as an adviser on our side, we were still outnumbered in court by the government’s forces.

“On 11 February 1980, the applicant pleaded guilty to manslaughter on ground of diminished responsibility. His plea of guilty was accepted on the basis of medical evidence that the applicant was a man with a gross personality disorder to such a degree that he was amoral. He was sentenced to a term of discretionary life imprisonment”. The Court judgment only had this to say in relation to my crime and sentence. On the other hand, certain elements of the British media concentrated a lot more on this than they did on the actual judgment. We should not lose sight of the fact that a man convicted of the very serious crime of manslaughter and sentenced to life imprisonment brought and won the case. Given this, it beggars belief that the government is attempting to limit the vote to those convicted prisoners serving 4 years and under.

“The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired on 25 June 1994. His continued detention was based on considerations relating to risk and dangerousness, the Parole Board considering that he continued to present a risk of serious harm to the public”. This is important because the government had argued that the disenfranchisement formed part of the punishment. However, once a lifer is post-tariff he is no longer officially undergoing punishment and instead enters the treatment stage of his sentence. Therefore, this part of the government’s argument fell down in my case. Furthermore, the government still has not addressed this point. For example, according to my judgment, prisoner Ben Gunn is entitled to the vote, whereas under the government’s proposals he would still be denied the vote. The other point here which the government lost was that if disenfranchisement was part of the punishment as the government claimed, why was it not referred to as an added punishment when a judge passes a custodial sentence?

“The applicant, who is barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections, issued proceedings in the High Court under section 4 of the Human Rights Act 1998, seeking a declaration that this provision was incompatible with the European Convention on Human Rights”. The first thing to point out here is that s.3 of ROPA 1983 could not withstand the legal challenge of Article 3 of the First Protocol, therefore it must fall. Neither the last administration nor the present one has sought to amend the offending section of the statute. According to the LibDem peer Lord Lester of Herne Hill, under s.10 (2) of the HRA 1998, Kenneth Clarke can remove the anomaly with an urgent remedial order. By doing this it would head off any proposed Tory revolt to vote against the government on the issue of convicted prisoners and the vote. The second thing to point out is that the government’s proposals do not include allowing prisoners to vote in local elections. This restriction would appear to fly in the face of my judgment. The third thing is whether judicial review is an effective remedy under the Convention? The recent Chester judgment still shows that judges are too keen on showing deference to Parliament, on the issue of prisoners’ votes, when such deference is not required in a case like this.

“Section 3 of the Representation of the People Act 1983 provides:

“(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.”

This section re-enacted without debate the provisions of section 4 of the representation of the People Act 1969, the substance of which dated back to the Forfeiture Act 1870 of the previous century, which in turn reflected earlier rules of law relating to the forfeiture of certain rights by a convicted “felon” (the so-called “civic death” of the times of King Edward III)”. The Court was not impressed with the lack of parliamentary debate in a so-called liberal democracy on such a basic human right as the franchise. I would contend that the time for debate has passed and that all it requires now is for the UK to fully comply with my judgment. Therefore, Mark Harper’s “We will bring forward legislation next year for Parliament to debate”, in his written statement on 20 December, appears to be a retrograde step. My judgment does not say “Go back and debate the issue”. By the same token it does not say “Go back and consult on the issue”, therefore it would appear that the Tories are trying to kick it into the long grass just like Labour did when in power. The Committee of Ministers needs to be aware of this tactic of trying to go backwards to a time before the judgment.

“During the passage through Parliament of the Representation of the People Act 2000, which permitted remand prisoners and unconvicted mental patients to vote, Mr Howarth MP, speaking for the Government, maintained the view that “it should be part of a convicted prisoner’s punishment that he loses rights and one of them is the right to vote”. The Act was accompanied by a statement of compatibility under section 19 of the Human Rights Act 1998, namely, a statement that in introducing the measure in Parliament the Secretary of State considered its provisions to be compatible with the Convention”. It is incredible that in a so-called liberal democracy just one person in power could express the view to continue disenfranchisement, and all the others simply nodded their heads in agreement without debate. Furthermore, that Mr Howarth could mislead Parliament on the statement of compatibility and that nobody challenged it.

(Part two to follow)


richard said...

It's been a few days, John, I was starting to worry. Just enjoying the Christmas cheer I imagine. Hope it has been a good one so far.

Seasons greetings to you and Rocky.

jailhouselawyer said...

Richard: Just taking a few days of well earned rest. I hope you are having a good one too.