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Friday, December 17, 2010

Prisoners votes: Daily Mail gets it so wrong and so have the government legal advisers

Prisoners votes: Daily Mail gets it so wrong and so have the government legal advisers

Killers and rapists will NOT get vote: Right is restricted to terms of less than four years

By James Chapman, Political Editor
Last updated at 11:41 PM on 16th December 2010

Murderers, rapists and other offenders serving sentences of four years or more will not get the vote in general elections despite a European court ruling, it emerged last night.

Cabinet sources told the Daily Mail that government legal advisers believe a threshold can be introduced so those given longer jail terms remain disenfranchised.

It would limit potential for rebellion among Tory MPs outraged over the decision to acquiesce to a European Court of Human Rights ruling that gives prisoners the vote for the first time in 140 years.

Some Tories are threatening to join forces with Labour to try to block the move.

There had been fears that all 70,000 British inmates would be enfranchised.

But a four-year threshold will mean the most notorious criminals – murderers and other ‘lifers’ – will remain banned.

‘The legal advice that has come back is better than expected,’ said one source.

‘Clearly, we don’t want to give any inmate the vote, but this isn’t now a choice, it is a legal obligation.

‘But we are confident that we can withhold the vote from the most serious offenders.’

Lawyers have warned that the taxpayer will be hit with a bill up to £50 million in compensation if prisoners are not allowed to take part in ballots. The latest compromise follows six years of government attempts to dodge the issue.

Prisoners were originally denied the right to take part in ballots under the 1870 Forfeiture Act, and the ban was reinforced in the Representation of the People Act of 1983. Those on remand awaiting trial, fine defaulters and people jailed for contempt of court can vote.

In 2004, the European Court of Human Rights ruled Britain’s blanket ban was discriminatory. It followed a legal challenge by John Hirst, who was jailed for manslaughter for hacking his landlady to death with an axe in 1979.

One rebel MP, Philip Hollobone, said about 40 Tories could defy party whips, enough to defeat the Government on the issue. The Liberal Democrats, by contrast, have campaigned for prisoners’ votes as an issue of basic human rights.

Comment: On 8 April 2010, in Frodl v Austria, the European Court of Human Rights ruled that a convicted murderer had his human rights breached by denying him the franchise. This decision is binding on the UK. Therefore, the Committee of Ministers which supervises execution of the ECtHR's judgments will not accept a blanket ban on murderers not getting the vote. Such a ban is too arbitrary and fails to meet the twin tests of legitimacy and proportionality set by the Court. Furthermore, the Court ruled that any disenfranchisement must be decided by a judge and not by the Executive or Parliament. The Court was very clear that disinfranchisement must be very limited, for example, only in the cases of someone convicted of electoral fraud or abuse of a public office.

On 23 November 2010, in the case of Greens and MT v UK, the ECtHR ruled that a rapist was denied his human right to vote. This judgment is still not final for another 3 months to allow both sides the opportunity to appeal to the Grand Chamber. However, given that the Grand Chamber refused to allow the Austrian government to appeal in Frodl it is very unlikely to succeed in this case. I am aware that the lawyer acting for Greens and MT is considering an appeal for damages and possibly on the lack of effective remedy point.

On 6 October 2005, in Hirst v UK (No2), the Grand Chamber rejected the UK appeal and upheld the Chamber judgment that I, convicted of manslaughter, had my human right to the vote breached.

In my case, the Court warned the UK "It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention". The UK does not discharge its obligation by attempting to get away with only a partial compliance. The UK is required to fully comply with my judgment. That is, all convicted prisoners must get the vote. The UK can only decide whether to allow convicted prisoners to vote by putting polling booths in prison, or the cheaper option of allowing postal votes.

Having shown that killers serving life and rapists are entitled to vote, it follows that those convicted of manslaughter and paedophiles serving less than 4 years will also be allowed to vote even if the Daily Mail story had a grain of truth in relation to the 4 year cut off point.

I note that neither the MoJ nor Cabinet Office has made any official announcement in Parliament nor on their websites. Is this democracy in action whereby anonymous sources leak the news to the Daily Mail? I trust that the Committee of Ministers of the Council of Europe will also respond to the UK with its view via the media? This is also a weapon in their armoury.

Any government legal adviser who believes that the line can be held at 4 years and over is not fit for purpose. Perhaps, they should be named and shamed? How much of the taxpayers money has been wasted on such flawed legal advice? I know that far better legal advice would have come from yours truly, my being the foremost legal authority on this case in the country, and a darned sight cheaper at that!

What part of Hirst v UK (No2) do the rebel Tory MPs not understand? It is my case, the Individual v the State. These MPs are my prisoners, and they were captured when I defeated the 3 arms of the State. They will only be released from their chains when they do exactly as they are told. The ECtHR and Committee of Ministers and Council of Europe do not care what the 1922 Committee has to say in defiance of the highest court in Europe's judgments. They had their chance to speak out when they let Labour get away with doing nothing for 5 years. As far as the Council of Europe is concerned, it is the responsibility of the MoJ to ensure that all citizens in the UK get their human rights under the European Convention. Poor old Kenneth Clarke is damned if he does, and damned if he doesn't. "Catch 22". As for Nick Clegg, the Council of Europe is not interested in Ken Clarke passing the ball from the MoJ to the Deputy Prime Minister and the Cabinet Office. It all comes under the UK and that means collective responsibility. The public, not being part of the State, remain free. The Court excluded public opinion as a ground for denying the franchise to all convicted prisoners, when it was argued by the UK.

It makes no odds if all of the Tories join forces with Labour because it will not block the move. If the Tories had a policy on Europe before the election instead of a black hole in their knowledge, they might have learned that as a result of the Lisbon Treaty, particularly Protocol 14, the UK has no option but to fully comply with Hirst v UK (No2) and Frodl v Austria. The European Union, as with the Council of Europe, requires all its Member States to abide by the Convention and Court decisions. Recently, the United Nations also joined forces with the Council of Europe and European Union to tackle human rights abuses. These powerful institutions will not let the UK get away with this any longer. Either the UK fully complies within 6 months or face sanctions under the Interlaken process. Ultimately, the UK can face suspension or expulsion from both the Council of Europe and EU. Meanwhile, the UK can have its vote suspended and/or face tough economic sanctions. It's either in or out, and neither the Council of Europe nor EU are prepared to tolerate the antics of a rogue or pariah State.

It beggars belief that in a so-called liberal democratic country in 2010, with a Human Rights Act, that there were fears that over 70,000 human beings would be given the human rights that they are legally entitled to! This is not the time to let irrational fears overrule common sense. This is the time to do the right thing.

The Daily Mail has not appeared to notice that the 4 year threshold was something that Labour had suggested in its first consultation exercise, and it was rejected by 47% of the public who favoured full enfranchisement. Only 4 people, not even 4 %, supported the Labour government's view. So, both the Tory rebels and Labour are out of touch with public opinion. Not that, as already said, public opinion counts for anything on the issue of the Individual v the State. It's the State abuse of convicted prisoners human rights which has to stop. The 4 year threshold is contrary to both Hirst No2 and Frodl. It's a non-starter. Time for these Tory rebels to use their heads for thinking, rather than knee-jerking to their gut reactions caused by excessive wind.

Far from the legal advice being better than expected, it is as pathetic as rearranging the deckchairs on the Titanic. Or should that be SS Brittania attempting to waive the rules and sinking in the process upon hitting the rocks in Strasbourg?

It is not a question of what the losers in this fight want, and any choice was removed when I claimed victory. The legal obligation upon the UK is to fully comply with my judgment.

A murderer and a manslaughter and a rapist (and possibly a paedophile MT?) all serious offenders have already won the human right to vote, and the Tory rebels are saying that they are confident that the UK can withhold the vote from serious offenders? Perhaps, by serious offenders they mean Ian Brady and Peter Sutcliffe? It is debateable whether those two would qualify anyway being in Broadmoor. I hope that the Daily Mail has its photographers outside prison gates in the run up to the next election to catch these Tory rebels sneaking in to canvass votes from all convicted prisoners, including murderers, rapists and paedophiles.

Only £50m? Must be a Conservative estimate. Already, convicted prisoners are in line to get £135m for being denied the vote in last year's European election and this year's general election. Once again, it shows that the government's lawyers haven't got a clue! As for compromise, the Council of Europe is in no mood for compromise. There is no such thing as partial compliance with a ECtHR judgment, only the uncompromising full compliance.

In 2004, the ECtHR did not rule that the ban was discriminatory. My judgment was clear that there was no discrimination, all convicted prisoners were denied the franchise. However, if the UK tries to discriminate, for example, by attempting to deny all those serving over 4 years from voting then the UK is in danger of falling foul of Article 14 of the Convention which prohibits discrimination! The Courts have stated only discrimination for electoral fraud and abusers of public office will be legitimate under the Convention. It is worth pointing out that the autopsy report does not refer to any hacking in relation to my landlady's death. It is impossible to hack with a blunt instrument, this requires a sharp instrument. Once again the Daily Mail has got it wrong. It would be better if a newspaper stuck to the facts rather than write fiction.

This rebel Tory MP, Philip Hollowbrain, has missed the point that I have already defeated the government on this issue when I challenged the Executive, Judiciary and Parliament, the 3 arms of the State within the UK which follows the case bearing my name Hirst v UK (No2). Whilst this idiot boasts of 40 rebel Tory MPs (why does he not name them all?) supporting him, I have 46 Member States in the Council of Europe backing me against the UK, and 26 Member States in the EU with 800m EU citizens. Whilst Charles Kennedy did support all convicted prisoners getting the vote, and the LibDems did vote in support of this policy, Nick Clegg only supported some prisoners getting the vote which makes him not only a Tory and not a LibDem, but also makes him wrong. So, I don't agree with Nick on this one. Given that he is a former MEP he should have known better than to try and pick a fight against their game on their pitch with their rules. I am European. That's why I am on the winning side. Even Russia saw sense in February to give in to the Council of Europe. The UK needs to see which way the wind is blowing, and get up to scratch on the shift in power in Europe. All the UK has achieved is to be sidelined. If the UK wants to play it must abide by the rules.

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