Liana's message for Jailhouselawyer
A mixture of law, politics, autobiography and humour. Once described as "The Devilish Advocate" (Guardian), I do have the ability to provoke a response. Sometimes it comes from someone who uses a thought process, and sometimes from jerks usually associated with the knee.
Friday, December 31, 2010
New Year's Predictions
New Year's Predictions
My first prediction is that the...
Government approach to prisoners voting rights.
...is all wrong and that in spite of all the huffing and puffing to the contrary, all convicted prisoners in the future will be allowed the vote.
"The Government has confirmed proposals for prisoner voting rights which will prevent the most serious offenders from voting.
The move follows a court ruling which the Government is obliged to implement".
These two statements are contradictory. Whilst the Government is free to make proposals, in Hirst v UK (No2) the ECtHR states: "It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with". In my view, the Government proposals do not go far enough to meet the requirements of Article 3 of Protocol No. 1 and in February the Committee of Ministers will no doubt disabuse the UK of it's mistaken belief.
As the Government states its move follows my ruling and is under an obligation to implement. And yet, the proposal not to enfranchise those convicted prisoners serving over 4 years does not, in my view, seek to implement my ruling but instead is a rather pathetic attempt to limit the scope of the ruling.
The Court stated: "As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion". That is, all get the vote unless the Government can disenfranchise, in very limited circumstances, in ways which are both legitimate and proportionate. The Government has got the wrong end of the stick. That is, disenfranchise all but a few. The Court stated: "The blanket ban was also disproportionate, arbitrary and impaired the essence of the right" under Article 3 of Protocol No 1. In my view, the proposed 4 year cut off point is also arbitrary and lacks the necessary legitimacy and proportionality to comply with the Convention and my decision. As the Chamber ruled in Frodl v Austria: "Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions". The automatic disenfranchisement of all those serving over 4 years is a non-starter. Besides, it is not for the Executive nor Parliament to disenfranchise large sections of society but instead it is for a judge to remove the vote in individual cases and only then in the very limited circumstances, for example, for electoral fraud and abuse of a public office.
The coalition is heading for big trouble in Europe if it does not fully comply with my judgment, and if the media reports are true are heading for big trouble in the UK from the extreme right wing media and extreme right wing 1922 Committee if they do comply. Damned if they do and damned if they don't.
My second prediction is that the BNP blogger Paul Staines/Guido Fawkes will finally get his comeuppance in 2011.
A Happy New Year to all my readers.
My first prediction is that the...
Government approach to prisoners voting rights.
...is all wrong and that in spite of all the huffing and puffing to the contrary, all convicted prisoners in the future will be allowed the vote.
"The Government has confirmed proposals for prisoner voting rights which will prevent the most serious offenders from voting.
The move follows a court ruling which the Government is obliged to implement".
These two statements are contradictory. Whilst the Government is free to make proposals, in Hirst v UK (No2) the ECtHR states: "It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with". In my view, the Government proposals do not go far enough to meet the requirements of Article 3 of Protocol No. 1 and in February the Committee of Ministers will no doubt disabuse the UK of it's mistaken belief.
As the Government states its move follows my ruling and is under an obligation to implement. And yet, the proposal not to enfranchise those convicted prisoners serving over 4 years does not, in my view, seek to implement my ruling but instead is a rather pathetic attempt to limit the scope of the ruling.
The Court stated: "As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion". That is, all get the vote unless the Government can disenfranchise, in very limited circumstances, in ways which are both legitimate and proportionate. The Government has got the wrong end of the stick. That is, disenfranchise all but a few. The Court stated: "The blanket ban was also disproportionate, arbitrary and impaired the essence of the right" under Article 3 of Protocol No 1. In my view, the proposed 4 year cut off point is also arbitrary and lacks the necessary legitimacy and proportionality to comply with the Convention and my decision. As the Chamber ruled in Frodl v Austria: "Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions". The automatic disenfranchisement of all those serving over 4 years is a non-starter. Besides, it is not for the Executive nor Parliament to disenfranchise large sections of society but instead it is for a judge to remove the vote in individual cases and only then in the very limited circumstances, for example, for electoral fraud and abuse of a public office.
The coalition is heading for big trouble in Europe if it does not fully comply with my judgment, and if the media reports are true are heading for big trouble in the UK from the extreme right wing media and extreme right wing 1922 Committee if they do comply. Damned if they do and damned if they don't.
My second prediction is that the BNP blogger Paul Staines/Guido Fawkes will finally get his comeuppance in 2011.
A Happy New Year to all my readers.
Ouch!
Ouch!
Last night as I was going through which lump of wood to saw up for the fire, that I had rescued from a skip, a large piece of 4 x 2 fell down and landed on my left big toe (I know the photo shows a bandaged right big toe!). I writhed in agony on the floor for 15-20 minutes, as tears welled up in my eyes, and feared that at first it might be broken and considered calling for the First Response Team. Crawling back into the lounge I managed to remove my slipper and sock and saw that it was badly bruised. After awhile I picked up the courage to test whether I could move my big toe, and as I could I realised that at least it was not broken. When I took Rocky out for his morning walk it was quite painful and meant I was limping along.
Last night as I was going through which lump of wood to saw up for the fire, that I had rescued from a skip, a large piece of 4 x 2 fell down and landed on my left big toe (I know the photo shows a bandaged right big toe!). I writhed in agony on the floor for 15-20 minutes, as tears welled up in my eyes, and feared that at first it might be broken and considered calling for the First Response Team. Crawling back into the lounge I managed to remove my slipper and sock and saw that it was badly bruised. After awhile I picked up the courage to test whether I could move my big toe, and as I could I realised that at least it was not broken. When I took Rocky out for his morning walk it was quite painful and meant I was limping along.
Thursday, December 30, 2010
UK calls on Russia to respect the principles of justice
UK calls on Russia to respect the principles of justice
30 December 2010
Statement following the sentencing of Mikhail Khodorkovsky on 30 December.
Foreign Secretary William Hague said:
“I am deeply concerned by the implications of this case concerning Mikhail Khodorkovsky for confidence in how the law is applied in Russia.
The UK calls on Russia to respect the principles of justice and apply the rule of law in a non-discriminatory and proportional way. In the absence of this the UK and much of the international community will regard such a trial as a retrograde step”.
Pot calling kettle black. How has Hirst v UK (No2) been applied in the UK? Over 5 years and the UK has not complied with the ECtHR judgment. Justice delayed is justice denied. The international community is coming to the belief that the UK is a rogue or pariah state.
Sort out your own backyard and put pressue on Kenneth Clarke the Secretary of State for Justice to ensure that all convicted prisoners get their human right to the vote!
30 December 2010
Statement following the sentencing of Mikhail Khodorkovsky on 30 December.
Foreign Secretary William Hague said:
“I am deeply concerned by the implications of this case concerning Mikhail Khodorkovsky for confidence in how the law is applied in Russia.
The UK calls on Russia to respect the principles of justice and apply the rule of law in a non-discriminatory and proportional way. In the absence of this the UK and much of the international community will regard such a trial as a retrograde step”.
Pot calling kettle black. How has Hirst v UK (No2) been applied in the UK? Over 5 years and the UK has not complied with the ECtHR judgment. Justice delayed is justice denied. The international community is coming to the belief that the UK is a rogue or pariah state.
Sort out your own backyard and put pressue on Kenneth Clarke the Secretary of State for Justice to ensure that all convicted prisoners get their human right to the vote!
The Government's plan to keep the Liberal Democrats happy by allowing serious offenders to vote
The Government's plan to keep the Liberal Democrats happy by allowing serious offenders to vote
by Paul Goodman
This is the story not so much of a coming political car crash as of a Parliamentary motorway pile-up in peak time. It stars a gloating axe killer, a European court, human rights, a vexed judgement, an recent Parliamentary answer, satisfied Liberal Democrat MPs, unhappy Conservative backbenchers, an opportunistic Labour Party, a Tory Minister being used as a human shield to protect the most important Liberal Democrat in the Government, a Conservative leadership trying to square a circle, a rampant media - and an administration facing the prospect of its biggest Commons revolt to date.
On Monday December 20 - after most MPs had returned to their constituencies and homes for Christmas - Mark Harper, the Cabinet Office Minister, issued a written statement called "Voting Entitlement". This brief heading offered no clue about the importance of what was below it - namely, the Government's plan in response to judgements made by the European Court of Human Rights about prisoners and voting. The Department wasn't trying to smuggle out a major statement, surely?
Its essence was as follows -
* The court says that we must introduce legislation to meet its requirements by August next year.
* If we don't, we'll have to shell out a shedload of money to meet some of the 2,500 claims currently before the court.
* However, it doesn't oblige us to give all prisoners the vote - only some of them.
* Four years imprisonment is often regarded as the distinction between short-term and long-term prisoners. So we'll go with that: any prisoner serving a sentence of less than four years will get the vote, unless a judge specifically says otherwise. The Government "will...bring forward legislation providing that the blanket ban in the existing law will be replaced".
It's far from clear whether -
* This proposal is legally watertight.
* Or whether, even in its own terms, it's equitable, since some violent criminals, whose offences are particularly obnoxious to the public, will be serving less than four years, while some non-violent criminals will be serving more.
What's certain, however, is that under it some criminals convicted of very serious offences undoubtedly will get the vote. It's worth recalling that John Hirst, the axe killer whose successful appeal helped force the Government's response, and who was filmed celebrating the decision while quaffing champagne and smoking cannabis, said in response to the court's decision -
"I'm going to celebrate for the 75,000 prisoners who will be getting the vote. That includes murderers, rapists, paedophiles. All of them will be getting the vote because it's their right."
Hirst was wrong to suggest that that they'll all get the vote. However, some serious offenders undoubtedly will, and this is quite bad enough. It's not hard to see how events will unfold -
* As the vote approaches, the tabloids and the Tory press will hunt high and low for such offenders, find them, and publicise their cases - which will heighten voter fury. It wouldn't be surprising were a paper to run a write-in campaign urging readers to lobby MPs against the plan.
* Liberal Democrat MPs will defend the Government's proposals - indicating, in a few cases, that Ministers should have gone further, and that all prisoners should have the right to vote, the position taken by one of Nick Clegg's predecessors as Liberal Democrat leader, Charles Kennedy.
* Conservative MPs will attack them. The biggest Tory backbench revolt to date has seen 77 MPs vote to relax the smoking ban. Since Harper's statement has gained very little publicity to date (The Independent providing one of the few exceptions), it's impossible to be sure yet of whether backbench reaction will match this tally. But it's hard to think of a matter more likely to enrage Conservative MPs, combining, as it does, the toxic issues of Europe and crime (not to mention the Liberal Democrats).
* The row will inflame present Coalition tensions... The Christmas period has seen the Government tested in the aftermath of the tuition fees vote. Adrian Sanders believes that the Liberal Democrats should be shouting about policy wins over the Conservatives. Nick Clegg thinks that they shouldn't. John Redwood says that the Liberal Democrats have taken credit for too much already. David Cameron intervened personally to ensure that the Conservative by-election campaign in Oldham East and Saddleworth has been kept minimal, and there are persistent indications that the leadership is angling for the Coalition to be made permanent. The Tory back benches are discontented over IPSA.
* ...Thus forcing Harper to provide further cover for Clegg. Clegg is fairly and squarely in charge of prisoners and voting: he is, after all, responsible for political and constitutional reform. But Downing Street's relations with its own backbenchers would be further soured were the Deputy Prime Minister to take the lead on the issue. It would look as though Clegg was pushing one his party's pet projects down unwilling Tory throats - as well as exposing the already becalmed Deputy Prime Minister to more assault by tabloid. Harper was put up to make an oral statement on the issue in the Commons, before the Government's plan was announced in December. He was also sent in to handle most of the AV referendum bill - another unpopular cause with Conservative backbenchers - during which Clegg was mostly absent. Harper has thus been been thrown to date a series of hospital passes. Being assigned the role of Clegg's human shield has been an unlucky break for one of the more right-wing Ministers on the Government benches.
The essence of the Clegg/Harper case is that the Government has no alternative. However, there at least four - two of which have been flagged up on this site by Dominic Raab.
* At one end of the political scale, the Government could have produced different and tighter criteria. For example, Malta and San Marino ban prisoners serving sentences of more than year from voting. France bars prisoners convicted of certain categories of crimes.
* At the other, the Government could withdraw from the ECHR altogether.
* If the Government won't do that it could, as Rabb suggested, simply ignore the Court's judgements. As he put it, "The human rights lobby will claim that this would damage the international rule of law. But, half of the Strasbourg judges had no prior judicial experience. And the real challenge to the rule of law now comes from judges behaving like unelected legislators".
* And if the Government doesn't want to do that either, it could put three options before the Commons rather than one. That's to say, it could offer the Commons the options of voting for its own proposals, for all prisoners being allowed to vote, and for the status quo. This would be consistent with the Party's view in Opposition, when Dominic Grieve was quoted as saying -
"The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one. Civic rights go with civic responsibility, but these rights have been flagrantly violated by those who have committed imprisonable offences. The Government must allow a parliamentary debate which gives MPs the opportunity to insist on retaining our existing practice that convicted prisoners can't vote."
As Raab wrote -
"If, as I suspect, Parliament voted to retain the current ban, Britain would have met the challenge of the Strasbourg Court, which complained the blanket ban lacked democratic legitimacy. What would we have to fear? Who is seriously suggesting that Britain would be kicked out of the Council of Europe, whilst France deports Roma en masse and the Strasbourg Court is backed up with serious human rights violations committed by the Russian, Bulgarian and Romanian governments?"
My sense is that there would be wide support on the Government benches for a vote on the status quo. In the event of such a vote, the outcome could depend on Ed Miliband. As Harper rightly points out in his written answer, Labour did nothing to address this matter in Government, letting it drift and leaving it for the next administration to deal with. A whipped Labour vote for the Government's preferred option would probably maximise a Conservative revolt. A vote against it could defeat the Government if a revolt's big enough in any event.
David Cameron could and should escape this prospect by a fifth option: dumping the Clegg/Harper plan altogether, and throwing the Government's weight behind the status quo - no votes for prisoners - and returning the matter to the court, thus meeting its challenge, as Raab would put it.
Comment: As I suspected ConservativeHome decided not to publish my response therefore it was just as well that I kept a copy...
Interesting headline, however, it does not reflect the true picture. The government's proposals need to keep the Committee of Ministers of the Council of Europe happy, and they can only achieve this by fully complying with my judgment. Obviously, this entails giving serious offenders the vote. The European Court of Human Rights has already ruled in my case Hirst No2(manslaughter), Frodl (murder), Greens (rapist) and MT (paedophile?) that these categories of prisoners are entitled to vote.
The Court has also ruled that only in very limited circumstances can the franchise be removed, for example, in the cases of those convicted of electoral fraud or abuse of a public office (MPs convicted of expenses fiddling?).
I have already tweeted that David Cameron is a crash test dummy. Recently, the BBC stated "A big test for David Cameron will come over issues such as giving prisoners the vote".
And this is going to make him sick, he will have to apply the Hirst test.
It is referred to in Frodl v Austria.
Para 34 "Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions".
When I heard that Vince Cable said he could bring the government down, I thought to myself 'Yes, he can get in the queue!'.
Why shouldn't I gloat when, after 5 years, prisoners votes has finally got on the political agenda?
Mark Harper's written statement falls down because it does not meet the Hirst test. Interestingly, his answer has been stolen from Labour's discarded dodgy consultation exercises.
Whilst I have been celebrating Christmas, I have also been preparing a surprise for when Parliament returns. I have William Hague of the FCO, Kenneth Clarke (MoJ), and Dominic Grieve (AG) in my sights.
by Paul Goodman
This is the story not so much of a coming political car crash as of a Parliamentary motorway pile-up in peak time. It stars a gloating axe killer, a European court, human rights, a vexed judgement, an recent Parliamentary answer, satisfied Liberal Democrat MPs, unhappy Conservative backbenchers, an opportunistic Labour Party, a Tory Minister being used as a human shield to protect the most important Liberal Democrat in the Government, a Conservative leadership trying to square a circle, a rampant media - and an administration facing the prospect of its biggest Commons revolt to date.
On Monday December 20 - after most MPs had returned to their constituencies and homes for Christmas - Mark Harper, the Cabinet Office Minister, issued a written statement called "Voting Entitlement". This brief heading offered no clue about the importance of what was below it - namely, the Government's plan in response to judgements made by the European Court of Human Rights about prisoners and voting. The Department wasn't trying to smuggle out a major statement, surely?
Its essence was as follows -
* The court says that we must introduce legislation to meet its requirements by August next year.
* If we don't, we'll have to shell out a shedload of money to meet some of the 2,500 claims currently before the court.
* However, it doesn't oblige us to give all prisoners the vote - only some of them.
* Four years imprisonment is often regarded as the distinction between short-term and long-term prisoners. So we'll go with that: any prisoner serving a sentence of less than four years will get the vote, unless a judge specifically says otherwise. The Government "will...bring forward legislation providing that the blanket ban in the existing law will be replaced".
It's far from clear whether -
* This proposal is legally watertight.
* Or whether, even in its own terms, it's equitable, since some violent criminals, whose offences are particularly obnoxious to the public, will be serving less than four years, while some non-violent criminals will be serving more.
What's certain, however, is that under it some criminals convicted of very serious offences undoubtedly will get the vote. It's worth recalling that John Hirst, the axe killer whose successful appeal helped force the Government's response, and who was filmed celebrating the decision while quaffing champagne and smoking cannabis, said in response to the court's decision -
"I'm going to celebrate for the 75,000 prisoners who will be getting the vote. That includes murderers, rapists, paedophiles. All of them will be getting the vote because it's their right."
Hirst was wrong to suggest that that they'll all get the vote. However, some serious offenders undoubtedly will, and this is quite bad enough. It's not hard to see how events will unfold -
* As the vote approaches, the tabloids and the Tory press will hunt high and low for such offenders, find them, and publicise their cases - which will heighten voter fury. It wouldn't be surprising were a paper to run a write-in campaign urging readers to lobby MPs against the plan.
* Liberal Democrat MPs will defend the Government's proposals - indicating, in a few cases, that Ministers should have gone further, and that all prisoners should have the right to vote, the position taken by one of Nick Clegg's predecessors as Liberal Democrat leader, Charles Kennedy.
* Conservative MPs will attack them. The biggest Tory backbench revolt to date has seen 77 MPs vote to relax the smoking ban. Since Harper's statement has gained very little publicity to date (The Independent providing one of the few exceptions), it's impossible to be sure yet of whether backbench reaction will match this tally. But it's hard to think of a matter more likely to enrage Conservative MPs, combining, as it does, the toxic issues of Europe and crime (not to mention the Liberal Democrats).
* The row will inflame present Coalition tensions... The Christmas period has seen the Government tested in the aftermath of the tuition fees vote. Adrian Sanders believes that the Liberal Democrats should be shouting about policy wins over the Conservatives. Nick Clegg thinks that they shouldn't. John Redwood says that the Liberal Democrats have taken credit for too much already. David Cameron intervened personally to ensure that the Conservative by-election campaign in Oldham East and Saddleworth has been kept minimal, and there are persistent indications that the leadership is angling for the Coalition to be made permanent. The Tory back benches are discontented over IPSA.
* ...Thus forcing Harper to provide further cover for Clegg. Clegg is fairly and squarely in charge of prisoners and voting: he is, after all, responsible for political and constitutional reform. But Downing Street's relations with its own backbenchers would be further soured were the Deputy Prime Minister to take the lead on the issue. It would look as though Clegg was pushing one his party's pet projects down unwilling Tory throats - as well as exposing the already becalmed Deputy Prime Minister to more assault by tabloid. Harper was put up to make an oral statement on the issue in the Commons, before the Government's plan was announced in December. He was also sent in to handle most of the AV referendum bill - another unpopular cause with Conservative backbenchers - during which Clegg was mostly absent. Harper has thus been been thrown to date a series of hospital passes. Being assigned the role of Clegg's human shield has been an unlucky break for one of the more right-wing Ministers on the Government benches.
The essence of the Clegg/Harper case is that the Government has no alternative. However, there at least four - two of which have been flagged up on this site by Dominic Raab.
* At one end of the political scale, the Government could have produced different and tighter criteria. For example, Malta and San Marino ban prisoners serving sentences of more than year from voting. France bars prisoners convicted of certain categories of crimes.
* At the other, the Government could withdraw from the ECHR altogether.
* If the Government won't do that it could, as Rabb suggested, simply ignore the Court's judgements. As he put it, "The human rights lobby will claim that this would damage the international rule of law. But, half of the Strasbourg judges had no prior judicial experience. And the real challenge to the rule of law now comes from judges behaving like unelected legislators".
* And if the Government doesn't want to do that either, it could put three options before the Commons rather than one. That's to say, it could offer the Commons the options of voting for its own proposals, for all prisoners being allowed to vote, and for the status quo. This would be consistent with the Party's view in Opposition, when Dominic Grieve was quoted as saying -
"The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one. Civic rights go with civic responsibility, but these rights have been flagrantly violated by those who have committed imprisonable offences. The Government must allow a parliamentary debate which gives MPs the opportunity to insist on retaining our existing practice that convicted prisoners can't vote."
As Raab wrote -
"If, as I suspect, Parliament voted to retain the current ban, Britain would have met the challenge of the Strasbourg Court, which complained the blanket ban lacked democratic legitimacy. What would we have to fear? Who is seriously suggesting that Britain would be kicked out of the Council of Europe, whilst France deports Roma en masse and the Strasbourg Court is backed up with serious human rights violations committed by the Russian, Bulgarian and Romanian governments?"
My sense is that there would be wide support on the Government benches for a vote on the status quo. In the event of such a vote, the outcome could depend on Ed Miliband. As Harper rightly points out in his written answer, Labour did nothing to address this matter in Government, letting it drift and leaving it for the next administration to deal with. A whipped Labour vote for the Government's preferred option would probably maximise a Conservative revolt. A vote against it could defeat the Government if a revolt's big enough in any event.
David Cameron could and should escape this prospect by a fifth option: dumping the Clegg/Harper plan altogether, and throwing the Government's weight behind the status quo - no votes for prisoners - and returning the matter to the court, thus meeting its challenge, as Raab would put it.
Comment: As I suspected ConservativeHome decided not to publish my response therefore it was just as well that I kept a copy...
Interesting headline, however, it does not reflect the true picture. The government's proposals need to keep the Committee of Ministers of the Council of Europe happy, and they can only achieve this by fully complying with my judgment. Obviously, this entails giving serious offenders the vote. The European Court of Human Rights has already ruled in my case Hirst No2(manslaughter), Frodl (murder), Greens (rapist) and MT (paedophile?) that these categories of prisoners are entitled to vote.
The Court has also ruled that only in very limited circumstances can the franchise be removed, for example, in the cases of those convicted of electoral fraud or abuse of a public office (MPs convicted of expenses fiddling?).
I have already tweeted that David Cameron is a crash test dummy. Recently, the BBC stated "A big test for David Cameron will come over issues such as giving prisoners the vote".
And this is going to make him sick, he will have to apply the Hirst test.
It is referred to in Frodl v Austria.
Para 34 "Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions".
When I heard that Vince Cable said he could bring the government down, I thought to myself 'Yes, he can get in the queue!'.
Why shouldn't I gloat when, after 5 years, prisoners votes has finally got on the political agenda?
Mark Harper's written statement falls down because it does not meet the Hirst test. Interestingly, his answer has been stolen from Labour's discarded dodgy consultation exercises.
Whilst I have been celebrating Christmas, I have also been preparing a surprise for when Parliament returns. I have William Hague of the FCO, Kenneth Clarke (MoJ), and Dominic Grieve (AG) in my sights.
Wednesday, December 29, 2010
Young inmates cause disturbance at Kent juvenile prison
Young inmates cause disturbance at Kent juvenile prison
Specially trained prison officers had to be deployed to deal with a disturbance at a Kent young offenders' institute.
Kent Police said about a dozen teenage inmates threatened staff at Cookham Wood, in Rochester, Kent, on Monday.
The Prison Service said the incident lasted about eight hours.
In 2009 a report branded conditions at Cookham Wood "seriously unsafe". Officials said "significant improvements" had been made since.
'No injuries'
A Prison Service spokesperson said: "At 1750 yesterday [Monday] there was an incident of concerted indiscipline at HMYOI Cookham Wood.
"Specially trained prison officers were called to the prison and all the prisoners were returned to their cells at 0200.
"No injuries were sustained by either staff or prisoners."
Cookham Wood was built in 1978, originally for young men, but was changed to meet the need for secure female accommodation at the time.
It was converted to a young offenders' institute in 2007/2008.
Inspectors said in 2009 too many inmates had been placed at Cookham Wood before it was ready following the facility's conversion.
At the time the report was released Prison Service said it did not "wholly accept that the prison was unsafe" but an action plan had immediately been put in place.
Specially trained prison officers had to be deployed to deal with a disturbance at a Kent young offenders' institute.
Kent Police said about a dozen teenage inmates threatened staff at Cookham Wood, in Rochester, Kent, on Monday.
The Prison Service said the incident lasted about eight hours.
In 2009 a report branded conditions at Cookham Wood "seriously unsafe". Officials said "significant improvements" had been made since.
'No injuries'
A Prison Service spokesperson said: "At 1750 yesterday [Monday] there was an incident of concerted indiscipline at HMYOI Cookham Wood.
"Specially trained prison officers were called to the prison and all the prisoners were returned to their cells at 0200.
"No injuries were sustained by either staff or prisoners."
Cookham Wood was built in 1978, originally for young men, but was changed to meet the need for secure female accommodation at the time.
It was converted to a young offenders' institute in 2007/2008.
Inspectors said in 2009 too many inmates had been placed at Cookham Wood before it was ready following the facility's conversion.
At the time the report was released Prison Service said it did not "wholly accept that the prison was unsafe" but an action plan had immediately been put in place.
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
Ms E. WILMOTT,
Agent,
Mr R. SINGH, Q.C.,
Counsel,
Ms M. HODGSON,
Mr M. RAWLINGS,
Mr B. DAW,
Advisers;
(b) for the applicant
Ms F. KRAUSE,
Counsel,
Mr E. ABRAHAMSON,
Solicitor.
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)
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
Ms E. WILMOTT,
Agent,
Mr R. SINGH, Q.C.,
Counsel,
Ms M. HODGSON,
Mr M. RAWLINGS,
Mr B. DAW,
Advisers;
(b) for the applicant
Ms F. KRAUSE,
Counsel,
Mr E. ABRAHAMSON,
Solicitor.
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)
Friday, December 24, 2010
Eddie Gilfoyle: What a load of old bollocks from the Parole Board!
Eddie Gilfoyle: What a load of old bollocks from the Parole Board!
A spokesman for the parole board said he could not comment on individual cases but said a condition banning prisoners from talking to the media would be imposed to prevent further offending.
He said: "Any prisoner who is released is released if we reach a judgment that he is safe to release and that he is not going to go on to commit another offence. It is sometimes the case that one of the licence conditions is that the prisoner being released doesn't get involved with the media. If that is the case, the only reason for that condition would be to prevent further offending.
"For instance, it might be the case that if a high-profile prisoner talks to the media after he has been released, there would be issues concerning the feelings of the victims.
"There might be concerns about the reaction of the general public to someone who has been released from a life sentence."
Let's just say, for argument's sake, that Eddie Gilfoyle was rightly convicted of the murder of his wife. The Parole Board uses the Benson/Bradley test which goes to risk to life or limb as a measure for release or recall of a lifer. This means, for example, in the Cox case, it was unlawful for the Parole Board to order the recall of Mr Cox on the ground that he was found guilty of possession of cannabis and a dodgy tax disc. These minor criminal offences were not related to the index offence of murder, therefore he posed no risk to life or limb and his challenge by way of judicial review was successful and Mr Cox was re-released. By the same token, it is difficult to see in what way Mr Gilfoyle by speaking to the media endangers the public. So, it would appear that that is not the real reason for the imposition of this unlawful media gag.
Indeed, the Parole Board statement switches from the danger of reoffending to the status of Mr Gilfoyle being a high-profile prisoner. This brings with it the possibility of media attention. And, the possibility that relatives of his dead wife would see, hear and read media coverage hence the "there would be issues concerning the feelings of the victims". Do they have a right here which needs protecting? I very much doubt it. I recall when Channel 4 did a news special on the Prisoners Votes Case and interspersed throughout the news report was comments from my victim's daughter. I was told that this was done to create balance. However, the issue of prisoners votes was not about balancing the rights of victims against convicted prisoners human right to the vote. I thought that including my victim's daughter was unfair reporting. She came across as a angry, bitter and twisted woman. Nothing less than the death penalty or natural life would satisfy her blood lust. If anything, I should have been protected from her and not her from my media appearances. On the other hand, if a released lifer used the media to taunt the victims then an argument might be made for some kind of media restriction. However, I am not suggesting a blanket restriction such as has been imposed upon Mr Gilfoyle in this case.
Then the Parole Board switches track again and goes from seeking to protect the victim's relatives to "There might be concerns about the reaction of the general public to someone who has been released from a life sentence". In the Prisoners Votes Case the ECtHR stated that denying the human right to vote on the grounds that it might offend public opinion was not justified. By the same token, denying Mr Gilfoyle's human right to freedom of expression under Article 10 cannot be justified. I am glad that his legal representatives are appealing this outrageous abuse of power by the Parole Board and Ministry of Justice.
Update: Parole Board backs down on media gag after legal threat by lawyers.
A spokesman for the parole board said he could not comment on individual cases but said a condition banning prisoners from talking to the media would be imposed to prevent further offending.
He said: "Any prisoner who is released is released if we reach a judgment that he is safe to release and that he is not going to go on to commit another offence. It is sometimes the case that one of the licence conditions is that the prisoner being released doesn't get involved with the media. If that is the case, the only reason for that condition would be to prevent further offending.
"For instance, it might be the case that if a high-profile prisoner talks to the media after he has been released, there would be issues concerning the feelings of the victims.
"There might be concerns about the reaction of the general public to someone who has been released from a life sentence."
Let's just say, for argument's sake, that Eddie Gilfoyle was rightly convicted of the murder of his wife. The Parole Board uses the Benson/Bradley test which goes to risk to life or limb as a measure for release or recall of a lifer. This means, for example, in the Cox case, it was unlawful for the Parole Board to order the recall of Mr Cox on the ground that he was found guilty of possession of cannabis and a dodgy tax disc. These minor criminal offences were not related to the index offence of murder, therefore he posed no risk to life or limb and his challenge by way of judicial review was successful and Mr Cox was re-released. By the same token, it is difficult to see in what way Mr Gilfoyle by speaking to the media endangers the public. So, it would appear that that is not the real reason for the imposition of this unlawful media gag.
Indeed, the Parole Board statement switches from the danger of reoffending to the status of Mr Gilfoyle being a high-profile prisoner. This brings with it the possibility of media attention. And, the possibility that relatives of his dead wife would see, hear and read media coverage hence the "there would be issues concerning the feelings of the victims". Do they have a right here which needs protecting? I very much doubt it. I recall when Channel 4 did a news special on the Prisoners Votes Case and interspersed throughout the news report was comments from my victim's daughter. I was told that this was done to create balance. However, the issue of prisoners votes was not about balancing the rights of victims against convicted prisoners human right to the vote. I thought that including my victim's daughter was unfair reporting. She came across as a angry, bitter and twisted woman. Nothing less than the death penalty or natural life would satisfy her blood lust. If anything, I should have been protected from her and not her from my media appearances. On the other hand, if a released lifer used the media to taunt the victims then an argument might be made for some kind of media restriction. However, I am not suggesting a blanket restriction such as has been imposed upon Mr Gilfoyle in this case.
Then the Parole Board switches track again and goes from seeking to protect the victim's relatives to "There might be concerns about the reaction of the general public to someone who has been released from a life sentence". In the Prisoners Votes Case the ECtHR stated that denying the human right to vote on the grounds that it might offend public opinion was not justified. By the same token, denying Mr Gilfoyle's human right to freedom of expression under Article 10 cannot be justified. I am glad that his legal representatives are appealing this outrageous abuse of power by the Parole Board and Ministry of Justice.
Update: Parole Board backs down on media gag after legal threat by lawyers.
Thursday, December 23, 2010
Pat Robertson: Pot possession shouldn’t be a crime
Pat Robertson: Pot possession shouldn’t be a crime
By Liz Goodwin
Conservative Christian talk show host and one-time presidential candidate Pat Robertson said on his influential show "The 700 Club" this week that locking people up for possessing marijuana is "ruining young people."
In a segment about faith-based rehabilitation for prisoners, Robertson criticized the vote-getting "tough on crime" ethos of politicians, saying the prison system is not working and locking people up is not the answer. He then specifically singled out mandatory minimum sentences for possessing marijuana as a major source of the problem.
"We're locking up people that take a couple puffs of marijuana and next thing they know they've got 10 years," he said. "We've got to take a look at what we're considering crimes. I'm not exactly for the use of drugs, don't get me wrong. I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot -- that kind of thing -- it's costing us a fortune and it's ruining young people.
"Young people go in as youths, they come out as hardened criminals and it's not a good thing."
The United States has the highest incarceration rate in the world. This graph shows how the percentage of prisoners skyrocketed since the early 20th century.
A case we wrote about earlier this week in Montana, in which a prosecutor could not find enough people who think possessing marijuana should be a crime to seat a jury, shows that attitudes about the drug are evolving, and not just in blue states like California.
Some conservatives have advocated legalizing marijuana as a way to stanch the drug violence in Mexico. Robertson's segment promoted "Right on Crime," a group of conservatives who want to reduce the prison population with Christian outreach programs and reduced penalties for drug possession. Watch the segment below:
By Liz Goodwin
Conservative Christian talk show host and one-time presidential candidate Pat Robertson said on his influential show "The 700 Club" this week that locking people up for possessing marijuana is "ruining young people."
In a segment about faith-based rehabilitation for prisoners, Robertson criticized the vote-getting "tough on crime" ethos of politicians, saying the prison system is not working and locking people up is not the answer. He then specifically singled out mandatory minimum sentences for possessing marijuana as a major source of the problem.
"We're locking up people that take a couple puffs of marijuana and next thing they know they've got 10 years," he said. "We've got to take a look at what we're considering crimes. I'm not exactly for the use of drugs, don't get me wrong. I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot -- that kind of thing -- it's costing us a fortune and it's ruining young people.
"Young people go in as youths, they come out as hardened criminals and it's not a good thing."
The United States has the highest incarceration rate in the world. This graph shows how the percentage of prisoners skyrocketed since the early 20th century.
A case we wrote about earlier this week in Montana, in which a prosecutor could not find enough people who think possessing marijuana should be a crime to seat a jury, shows that attitudes about the drug are evolving, and not just in blue states like California.
Some conservatives have advocated legalizing marijuana as a way to stanch the drug violence in Mexico. Robertson's segment promoted "Right on Crime," a group of conservatives who want to reduce the prison population with Christian outreach programs and reduced penalties for drug possession. Watch the segment below:
To all my readers...
To all my readers...
This card is invisible to the naked eye...
A photo issued by the University of Glasgow shows a Christmas card so small that more than 8,000 of them could fit on a first-class stamp. The card, produced by the University of Glasgow, said to be the smallest in the world, is invisible to the naked eye. Picture: PA / University of Glasgow
This card is invisible to the naked eye...
A photo issued by the University of Glasgow shows a Christmas card so small that more than 8,000 of them could fit on a first-class stamp. The card, produced by the University of Glasgow, said to be the smallest in the world, is invisible to the naked eye. Picture: PA / University of Glasgow
Pictures of the day: 23 December 2010
Pictures of the day: 23 December 2010
A young tern looks like an angel as it lifts its wings in a bid to get food from its parents. The cute sight was captured by Johann Schumacher on Long Island, New York, America.
Picture: Johann Schumacher/solentnews.co.uk
A young tern looks like an angel as it lifts its wings in a bid to get food from its parents. The cute sight was captured by Johann Schumacher on Long Island, New York, America.Picture: Johann Schumacher/solentnews.co.uk
UKIP MEPs Nigel Farage and Godfrey Bloom guilty of sex discrimination
UKIP MEPs Nigel Farage and Godfrey Bloom guilty of sex discrimination
Nikki Sinclaire wins UKIP sex discrimination case
A lesbian MEP has won a claim for sex discrimination against her former colleagues in UKIP.
Nikki Sinclaire wins UKIP sex discrimination case
A lesbian MEP has won a claim for sex discrimination against her former colleagues in UKIP.
Eddie Gilfoyle released from prison after 18 years but gagged by parole board
Eddie Gilfoyle released from prison after 18 years but gagged by parole board
Eddie Gilfoyle has been released from prison after almost two decades behind bars for the murder of his heavily pregnant wife on condition that he does not comment on the case.
Eddie Gilfoyle who was jailed for 25 years at Liverpool Crown Court in July 1993 after being found guilty of killing his wife Photo: PA
By Andrew Hough 7:00AM GMT 23 Dec 2010
The 59 year-old was released from Sudbury open jail, Derbyshire after being granted parole on his first application.
It is understood he was released following a parole hearing in the past few days, where officials stipulated he must not contact the media either himself or through a third party.
Gilfoyle was jailed for 25 years at Liverpool Crown Court in July 1993 after being found guilty of killing his Paula Gilfoyle, who was eight-and-a-half months pregnant.
The 32 year-old was found hanging in the garage next to the couple's home in Upton, Wirral, in June 1992.
Detectives believed Gilfoyle fooled his wife, 32, into writing a suicide note and somehow persuaded her to climb a ladder with a noose around her neck.
He was sentenced to life in prison in 1993 for her murder and had lost two appeals against his conviction.
After his release Gilfoyle released a simple statement which read: “I am not able to provide a response because the Parole Board has imposed a condition on my life licence that prohibits me contacting the media either directly or indirectly whether this is regarding my release or my appeal.
“This is a matter that I will be challenging through the courts but until that time I cannot comment.”
His lawyers plan to appeal the gagging order, The Times reported.
Last year new evidence was unearthed which cast doubt on his historic murder. Police notes from the time surfaced suggested that Gilfoyle was at work when his wife died.
The Times claimed it obtained notes of interviews with the officers called to the house on the day that she died.
They stated the doctor who declared Mrs Gilfoyle dead told police that she had died six hours earlier – when her hospital porter husband was at work.
The notes were not shown to the jury nor mentioned during Gilfoyle's trial in 1993.
Merseyside Police have also repeatedly denied that they existed.
At the trial, prosecutors insisted that Gilfoyle had tricked his wife into writing her suicide letter, then coaxed her into the garage where he hanged her.
Police became suspicious when Mrs Gilfoyle's family and friends described how happy she had been before her death.
But according to the newly-discovered notes, nothing at the scene suggested foul play or a struggle and her body had no marks or defensive injuries.
Nor did a doctor who examined her raise any suspicions.
Comment: This is a turn up for the books. Although there is no legal authority for the Parole Board not to direct the release of a prisoner who proclaims innocence, it is very, very unusual for the Parole Board in practice to actually direct release and even more unusual for this to occur on the first hearing.
I would question the lawful authority for the Parole Board to have put a life licence condition upon him which stipulates he must not contact the media either himself or through a third party. This clearly is in breach of his Article 10 of the Convention human right to freedom of expression. It is also in breach of one of my cases allowing prisoners to speak to the media by phone.
Law Report: Hirst v Secretary of State for the Home Department [2002] EWHC 602 (Admin)(22nd March, 2002)
Eddie Gilfoyle has been released from prison after almost two decades behind bars for the murder of his heavily pregnant wife on condition that he does not comment on the case.
Eddie Gilfoyle who was jailed for 25 years at Liverpool Crown Court in July 1993 after being found guilty of killing his wife Photo: PABy Andrew Hough 7:00AM GMT 23 Dec 2010
The 59 year-old was released from Sudbury open jail, Derbyshire after being granted parole on his first application.
It is understood he was released following a parole hearing in the past few days, where officials stipulated he must not contact the media either himself or through a third party.
Gilfoyle was jailed for 25 years at Liverpool Crown Court in July 1993 after being found guilty of killing his Paula Gilfoyle, who was eight-and-a-half months pregnant.
The 32 year-old was found hanging in the garage next to the couple's home in Upton, Wirral, in June 1992.
Detectives believed Gilfoyle fooled his wife, 32, into writing a suicide note and somehow persuaded her to climb a ladder with a noose around her neck.
He was sentenced to life in prison in 1993 for her murder and had lost two appeals against his conviction.
After his release Gilfoyle released a simple statement which read: “I am not able to provide a response because the Parole Board has imposed a condition on my life licence that prohibits me contacting the media either directly or indirectly whether this is regarding my release or my appeal.
“This is a matter that I will be challenging through the courts but until that time I cannot comment.”
His lawyers plan to appeal the gagging order, The Times reported.
Last year new evidence was unearthed which cast doubt on his historic murder. Police notes from the time surfaced suggested that Gilfoyle was at work when his wife died.
The Times claimed it obtained notes of interviews with the officers called to the house on the day that she died.
They stated the doctor who declared Mrs Gilfoyle dead told police that she had died six hours earlier – when her hospital porter husband was at work.
The notes were not shown to the jury nor mentioned during Gilfoyle's trial in 1993.
Merseyside Police have also repeatedly denied that they existed.
At the trial, prosecutors insisted that Gilfoyle had tricked his wife into writing her suicide letter, then coaxed her into the garage where he hanged her.
Police became suspicious when Mrs Gilfoyle's family and friends described how happy she had been before her death.
But according to the newly-discovered notes, nothing at the scene suggested foul play or a struggle and her body had no marks or defensive injuries.
Nor did a doctor who examined her raise any suspicions.
Comment: This is a turn up for the books. Although there is no legal authority for the Parole Board not to direct the release of a prisoner who proclaims innocence, it is very, very unusual for the Parole Board in practice to actually direct release and even more unusual for this to occur on the first hearing.
I would question the lawful authority for the Parole Board to have put a life licence condition upon him which stipulates he must not contact the media either himself or through a third party. This clearly is in breach of his Article 10 of the Convention human right to freedom of expression. It is also in breach of one of my cases allowing prisoners to speak to the media by phone.
Law Report: Hirst v Secretary of State for the Home Department [2002] EWHC 602 (Admin)(22nd March, 2002)
Wednesday, December 22, 2010
Testing, testing, testing
Testing, testing, testing
A big test for David Cameron will come over issues such as giving prisoners the vote.
And this is going to make him sick, he will have to apply the Hirst test.
It is referred to in Frodl v Austria.
Para 34 "Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions".
When I heard that Vince Cable said he could bring the government down, I thought to myself 'Yes, he can get in the queue!'.
A big test for David Cameron will come over issues such as giving prisoners the vote.
And this is going to make him sick, he will have to apply the Hirst test.
It is referred to in Frodl v Austria.
Para 34 "Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions".
When I heard that Vince Cable said he could bring the government down, I thought to myself 'Yes, he can get in the queue!'.
Tuesday, December 21, 2010
Prisoners deserve to be disenfranchised
Prisoners deserve to be disenfranchised
The North Yorkshire Police website is home to a sad collection of faces. Faces guilty of crimes including assault, theft, blackmail, tax evasion, drug dealing and even manslaughter. They are all serving prison sentences of up to four years and they will all be eligible to vote under new legislation to be introduced next year. The change comes following pressure from the European Court of Human Rights (ECHR) for the government to remove the blanket ban on prisoners’ eligibility to vote. The ECHR believes the ban to be an infringement of prisoners’ rights.
Prisoners cannot reasonably claim that their rights are being infringed upon when they have directly deprived another person of theirs. In 2001, John Hirst, who served 25 years for killing his landlady, challenged the removal of prisoners’ enfranchisement in court, but was dismissed. In 2005, Hirst then went on to appeal with success to the ECHR. He has been a relentless campaigner for the prisoner’s right to vote, and this week rejoiced at the announcement in a homemade video where he stated, “I’m now going to celebrate for the 75,000 prisoners who will be getting the vote – that includes murderers, rapists, paedophiles, all of them will be getting the vote because it’s their human right to have the vote.”
This all comes from a man who, after an unprovoked attack on his landlady with an axe, calmly went to make a cup of coffee, and drank it as she lay fatalling wounded in the next room. Criminals deprive others of their rights, and at the very least they should have their liberties restricted as part of their punishment. His landlady will never vote again, so why should Hirst?
Regardless of a prisoner’s crime or history, once in prison the fact of the matter is this: a prisoner’s living costs are paid for by the tax payer, whilst they do not contribute to society in any way. As a result, their temporary disenfranchisement seems only fair, preventing them from having a voice in the system that they have rejected.
We must consider the future. If the ECHR and the likes of John Hirst have succeeded in making the government back down this far on the grounds of human rights infringement, then where will it stop? Like it or not, prisoners serving sentences longer than four years are still entitled to their human rights, so it is not inconceivable to consider that in the future, those convicted of the worst crimes will be able to vote.
Criminals undergoing their punishment deserve to be disenfranchised as a result of their actions. Once a sentence has been served and an inmate re-enters society, they then have the opportunity to contribute again in a positive way. Only then should they be enfranchised, and allowed a voice equal to yours or mine.
Comment: Contrary to your headline, of course convicted prisoners do not deserve to be disenfranchised save for those convicted of electoral fraud or abuse of a public office (see Hirst v UK (No2) and Frodl v Austria).
Whilst you are correct in observing the type of offender who will be allowed to vote under the government’s proposals, you are incorrect to claim that legislation for these proposals will be introduced next year. The necessary change to domestic law is as a result of pressure from the ECtHR (see Hirst v UK (No2) and Frodl v Austria), and the Committee of Ministers of the Council of Europe, and from the Interlaken process. I state necessary change because the government’s proposals do not refer to this, rather it is an attempt to not fully comply with both Hirst v UK (No2) and Frodl v Austria. These cases show that only by amending s.3 of ROPA 1983 to reflect that all convicted prisoners must be allowed to vote, will be evidence of the necessary change.
You are wrong to claim “Prisoners cannot reasonably claim that their rights are being infringed upon when they have directly deprived another person of theirs”. The HRA 1998 is not about balancing the human rights of prisoners with the rights of victims of crimes. The HRA states that those who have their rights infringed by a public authority are victims. Indeed, the ECtHR stated in my judgment that I was a victim. Under the Actio Popularis principle the Court protects vulnerable groups in society from abuse by the State and from victimisation by wider society. The mere fact that I won the case is evidence that prisoners can reasonably claim that their rights are being infringed. It is your argument which is unreasonable.
It was 30 March 2004 when the Chamber handed down its judgment, and the government lost its appeal to the Grand Chamber on 6 October 2005. The video was not posted this week but after the government’s announcement on 3 November.
Indeed, this all comes from me. Isn’t it a wonderful achievement?
Actually, the trial judge refers to accepting a certain amount of provocation in my case therefore your reference to unprovoked is not only legally but factually incorrect. Perhaps, the word you were looking for was “unjustified”? And, we were both in the same room at the time. Criminals do deprive others of their rights, and if sentenced by the court (the punishment), and given a custodial sentence, they do lose their liberty as part of the punishment. Once again your argument falters. It is true that the dead cannot vote, and I do vote because I am now outside serving my sentence in the community. But, other convicted prisoners should vote because the highest court in Europe has said this should be the case. Accept it.
Whilst it is true that the cost of keeping prisoners in prison is met by the taxpayers, however, many of them do contribute to society. The franchise is not based upon making monetary contributions. Therefore it is your argument which is not fair. It is precisely to give prisoners the voice in Parliament that I took the case to court. I do not agree with your claim that prisoners have rejected the system.
As you say: “Like it or not, prisoners serving sentences longer than four years are still entitled to their human rights, so it is not inconceivable to consider that in the future, those convicted of the worst crimes will be able to vote”. The government will have a headache when it returns after the Xmas holiday period.
“Criminals undergoing their punishment deserve to be disenfranchised as a result of their actions”. Prisoners are sent to prison as a punishment and not for punishment. It is the government in the dock for its actions (or inaction if you like). The ECtHR made it clear in my case that seriousness of crime or length of sentence is not a factor to be taken into account in relation to the franchise. So, the prisoners conduct is no yardstick in relation to the vote. It is a basic human right in a democracy.
Prisoners are not removed from society and remain part of it even in custody. Some prisoners do contribute in a positive way. Look at me, for example, I went from a law breaker to a law-maker. I am doing the public a service by reforming the law. Freedom of expression extends to prisoners. Society can learn from the prisoners voice, and it is equal to any other voice in society. The government had argued that prisoners had lost the moral authority to vote, but this was rejected by the Court. Lord Carey, the former Archbishop of Canterbury, when the expenses scandal broke, stated that Parliament had lost the moral authority to govern. When I won the case, I also claimed the moral high ground.
Because the government has not handed over the White Flag of Surrender, it means that the £135m (which the taxpayers will have to pay for denying prisoners the vote in last year’s European election and May’s general election) could be doubled if those in Scotland, Wales and Northern Ireland, and English in the AV referendum, don’t get the vote by May 2011.
It remains to say, a Merry Christmas and a Happy New Year.
The North Yorkshire Police website is home to a sad collection of faces. Faces guilty of crimes including assault, theft, blackmail, tax evasion, drug dealing and even manslaughter. They are all serving prison sentences of up to four years and they will all be eligible to vote under new legislation to be introduced next year. The change comes following pressure from the European Court of Human Rights (ECHR) for the government to remove the blanket ban on prisoners’ eligibility to vote. The ECHR believes the ban to be an infringement of prisoners’ rights.
Prisoners cannot reasonably claim that their rights are being infringed upon when they have directly deprived another person of theirs. In 2001, John Hirst, who served 25 years for killing his landlady, challenged the removal of prisoners’ enfranchisement in court, but was dismissed. In 2005, Hirst then went on to appeal with success to the ECHR. He has been a relentless campaigner for the prisoner’s right to vote, and this week rejoiced at the announcement in a homemade video where he stated, “I’m now going to celebrate for the 75,000 prisoners who will be getting the vote – that includes murderers, rapists, paedophiles, all of them will be getting the vote because it’s their human right to have the vote.”
This all comes from a man who, after an unprovoked attack on his landlady with an axe, calmly went to make a cup of coffee, and drank it as she lay fatalling wounded in the next room. Criminals deprive others of their rights, and at the very least they should have their liberties restricted as part of their punishment. His landlady will never vote again, so why should Hirst?
Regardless of a prisoner’s crime or history, once in prison the fact of the matter is this: a prisoner’s living costs are paid for by the tax payer, whilst they do not contribute to society in any way. As a result, their temporary disenfranchisement seems only fair, preventing them from having a voice in the system that they have rejected.
We must consider the future. If the ECHR and the likes of John Hirst have succeeded in making the government back down this far on the grounds of human rights infringement, then where will it stop? Like it or not, prisoners serving sentences longer than four years are still entitled to their human rights, so it is not inconceivable to consider that in the future, those convicted of the worst crimes will be able to vote.
Criminals undergoing their punishment deserve to be disenfranchised as a result of their actions. Once a sentence has been served and an inmate re-enters society, they then have the opportunity to contribute again in a positive way. Only then should they be enfranchised, and allowed a voice equal to yours or mine.
Comment: Contrary to your headline, of course convicted prisoners do not deserve to be disenfranchised save for those convicted of electoral fraud or abuse of a public office (see Hirst v UK (No2) and Frodl v Austria).
Whilst you are correct in observing the type of offender who will be allowed to vote under the government’s proposals, you are incorrect to claim that legislation for these proposals will be introduced next year. The necessary change to domestic law is as a result of pressure from the ECtHR (see Hirst v UK (No2) and Frodl v Austria), and the Committee of Ministers of the Council of Europe, and from the Interlaken process. I state necessary change because the government’s proposals do not refer to this, rather it is an attempt to not fully comply with both Hirst v UK (No2) and Frodl v Austria. These cases show that only by amending s.3 of ROPA 1983 to reflect that all convicted prisoners must be allowed to vote, will be evidence of the necessary change.
You are wrong to claim “Prisoners cannot reasonably claim that their rights are being infringed upon when they have directly deprived another person of theirs”. The HRA 1998 is not about balancing the human rights of prisoners with the rights of victims of crimes. The HRA states that those who have their rights infringed by a public authority are victims. Indeed, the ECtHR stated in my judgment that I was a victim. Under the Actio Popularis principle the Court protects vulnerable groups in society from abuse by the State and from victimisation by wider society. The mere fact that I won the case is evidence that prisoners can reasonably claim that their rights are being infringed. It is your argument which is unreasonable.
It was 30 March 2004 when the Chamber handed down its judgment, and the government lost its appeal to the Grand Chamber on 6 October 2005. The video was not posted this week but after the government’s announcement on 3 November.
Indeed, this all comes from me. Isn’t it a wonderful achievement?
Actually, the trial judge refers to accepting a certain amount of provocation in my case therefore your reference to unprovoked is not only legally but factually incorrect. Perhaps, the word you were looking for was “unjustified”? And, we were both in the same room at the time. Criminals do deprive others of their rights, and if sentenced by the court (the punishment), and given a custodial sentence, they do lose their liberty as part of the punishment. Once again your argument falters. It is true that the dead cannot vote, and I do vote because I am now outside serving my sentence in the community. But, other convicted prisoners should vote because the highest court in Europe has said this should be the case. Accept it.
Whilst it is true that the cost of keeping prisoners in prison is met by the taxpayers, however, many of them do contribute to society. The franchise is not based upon making monetary contributions. Therefore it is your argument which is not fair. It is precisely to give prisoners the voice in Parliament that I took the case to court. I do not agree with your claim that prisoners have rejected the system.
As you say: “Like it or not, prisoners serving sentences longer than four years are still entitled to their human rights, so it is not inconceivable to consider that in the future, those convicted of the worst crimes will be able to vote”. The government will have a headache when it returns after the Xmas holiday period.
“Criminals undergoing their punishment deserve to be disenfranchised as a result of their actions”. Prisoners are sent to prison as a punishment and not for punishment. It is the government in the dock for its actions (or inaction if you like). The ECtHR made it clear in my case that seriousness of crime or length of sentence is not a factor to be taken into account in relation to the franchise. So, the prisoners conduct is no yardstick in relation to the vote. It is a basic human right in a democracy.
Prisoners are not removed from society and remain part of it even in custody. Some prisoners do contribute in a positive way. Look at me, for example, I went from a law breaker to a law-maker. I am doing the public a service by reforming the law. Freedom of expression extends to prisoners. Society can learn from the prisoners voice, and it is equal to any other voice in society. The government had argued that prisoners had lost the moral authority to vote, but this was rejected by the Court. Lord Carey, the former Archbishop of Canterbury, when the expenses scandal broke, stated that Parliament had lost the moral authority to govern. When I won the case, I also claimed the moral high ground.
Because the government has not handed over the White Flag of Surrender, it means that the £135m (which the taxpayers will have to pay for denying prisoners the vote in last year’s European election and May’s general election) could be doubled if those in Scotland, Wales and Northern Ireland, and English in the AV referendum, don’t get the vote by May 2011.
It remains to say, a Merry Christmas and a Happy New Year.
The problem with this is the graffiti artist suffering from dyslexia
The problem with this is the graffiti artist suffering from dyslexia
Pictures of the day: 21 December 2010
Pictures of the day: 21 December 2010
This is the dramatic moment a barn owl swooped down and snatched a field mouse searching for food in the snow. Wildlife photographer Mark Hancox waited for five hours in -10C temperatures in a field near Oswestry, Shropshire, to capture the shot on Saturday. He said: "I knew this field was a place where barn owls often hunted in winter so set up camp at the edge of the land facing a steep bank. The bank was covered in snow so I didn't get much time to see the owls before they swooped down. I was wearing six or seven layers on and it was absolutely bitterly cold, but I was determined to get the shot." Picture: Mark Hancox / SWNS.COM
This is the dramatic moment a barn owl swooped down and snatched a field mouse searching for food in the snow. Wildlife photographer Mark Hancox waited for five hours in -10C temperatures in a field near Oswestry, Shropshire, to capture the shot on Saturday. He said: "I knew this field was a place where barn owls often hunted in winter so set up camp at the edge of the land facing a steep bank. The bank was covered in snow so I didn't get much time to see the owls before they swooped down. I was wearing six or seven layers on and it was absolutely bitterly cold, but I was determined to get the shot." Picture: Mark Hancox / SWNS.COM
Written Ministerial Statements
Written Ministerial Statements
Cabinet Office
Voting Entitlement
The Parliamentary Secretary, Cabinet Office (Mr Mark Harper): A bar on sentenced, serving prisoners voting was first put in place in 1870. Successive Governments have maintained the position that, when an individual breaks their contract with society by committing an offence that leads to imprisonment, they should lose the right to vote while they are incarcerated.
Five years ago, in a case known as Hirst (No.2), the Grand Chamber of the European Court of Human Rights ruled that the existing statutory bar on convicted prisoners voting was contrary to article 3, protocol 1 of the European Convention on Human Rights-the right to free and fair elections.
The Court ruled that barring convicted prisoners in detention pursued a legitimate aim, but that a blanket ban was not proportionate. In its judgment, the Court acknowledged that the right to vote under the first protocol was not absolute, and that contracting states to the European Convention had to be given a margin of appreciation-a broad discretion-to decide what limitations on that right would be proportionate.
That judgment was handed down in October 2005. The last Government stated clearly and repeatedly that they would implement the judgment, published a timetable for legislation, and issued two consultation papers about how to do so. But they did nothing. The result is that the United Kingdom stands in breach of international law obligations-obligations that we expect others to uphold-and prisoners are bringing compensation claims as a direct result of the last Government's inaction.
In November 2010, the European Court of Human Rights handed down a further judgment against the UK, Greens and MT. In that judgment, the Court set a deadline for the introduction of legislation of August 2011. There are in the region of 2,500 claims before the European Court of Human Rights which have been suspended pending implementation. We have been given a window to act and it is right that we do so. If we do not, we only increase the risk of damages.
It is plain that there are strong views across Parliament and in the country on the question of whether convicted prisoners should be entitled to vote. However, this is not
20 Dec 2010 : Column 151WS
a choice: it is a legal obligation. So the Government are announcing today that we will act to implement the judgment of the European Court of Human Rights. In deciding how to proceed, we have been guided by three principles. First, that we should implement the Hirst judgment in a way that meets our legal obligations, but does not go further than that. Secondly, that the most serious offenders will not be given the right to vote. Thirdly, that we should seek to prevent the taxpayer having to face future claims for compensation.
The Government will therefore bring forward legislation providing that the blanket ban in the existing law will be replaced. Offenders sentenced to a custodial sentence of four years or more will lose the right to vote in all circumstances, which reflects the Government's clear view that more serious offenders should not retain the right to vote. Offenders sentenced to a custodial sentence of less than four years will retain the right to vote, but legislation will provide that the sentencing judge will be able to remove that right if they consider that appropriate. Four years has in the past been regarded as the distinction between short and long-term prisoners, and the Government consider that permitting prisoners sentenced to less than four years' imprisonment to vote is sufficient to comply with the judgment.
The right to vote will be restricted to UK Westminster Parliamentary and European Parliament elections only, and not in other elections or referendums. That is the minimum currently required by the law (a case considering whether article 3, protocol 1 applies to elections to the Northern Ireland Assembly is currently before the European Court of Human Rights: the Government's position is that they do not). Prisoners will vote by post or proxy, and will be entitled to register to vote not at the prison, but at their former address or the area where they have a local connection.
We believe that these proposals can meet the objectives that we have set out of implementing the judgment in a way that is proportionate; ensuring the most serious offenders will not be given the right to vote; and seeking to prevent future claims for compensation. We will bring forward legislation next year for Parliament to debate.
While the franchise is reserved to Westminster, the implementation of this policy will clearly have implications for Scotland and Northern Ireland, where the administration of justice is devolved. The Government will work closely with colleagues in the Scottish and Northern Ireland Administrations before legislation is introduced on the practical implications of the approach.
Governments have an absolute duty to uphold the rule of law. And at this of all times we must avoid risking taxpayers' money in ways that the public would rightly condemn. In the light of this, and of the legacy left by the last Government, the only responsible course is to implement the judgment, and to do so in a way which ensures the most serious offenders continue to lose the right to vote.
Comment: Is Mark Harper attempting to mislead Parliament and the public with this statement which jumps straight from my judgment to Greens and MT judgment (which is not yet final) and ignores the Frodl v Austria judgment (which is final) which is binding on the UK and states all convicted prisoners must get the vote?
Cabinet Office
Voting Entitlement
The Parliamentary Secretary, Cabinet Office (Mr Mark Harper): A bar on sentenced, serving prisoners voting was first put in place in 1870. Successive Governments have maintained the position that, when an individual breaks their contract with society by committing an offence that leads to imprisonment, they should lose the right to vote while they are incarcerated.
Five years ago, in a case known as Hirst (No.2), the Grand Chamber of the European Court of Human Rights ruled that the existing statutory bar on convicted prisoners voting was contrary to article 3, protocol 1 of the European Convention on Human Rights-the right to free and fair elections.
The Court ruled that barring convicted prisoners in detention pursued a legitimate aim, but that a blanket ban was not proportionate. In its judgment, the Court acknowledged that the right to vote under the first protocol was not absolute, and that contracting states to the European Convention had to be given a margin of appreciation-a broad discretion-to decide what limitations on that right would be proportionate.
That judgment was handed down in October 2005. The last Government stated clearly and repeatedly that they would implement the judgment, published a timetable for legislation, and issued two consultation papers about how to do so. But they did nothing. The result is that the United Kingdom stands in breach of international law obligations-obligations that we expect others to uphold-and prisoners are bringing compensation claims as a direct result of the last Government's inaction.
In November 2010, the European Court of Human Rights handed down a further judgment against the UK, Greens and MT. In that judgment, the Court set a deadline for the introduction of legislation of August 2011. There are in the region of 2,500 claims before the European Court of Human Rights which have been suspended pending implementation. We have been given a window to act and it is right that we do so. If we do not, we only increase the risk of damages.
It is plain that there are strong views across Parliament and in the country on the question of whether convicted prisoners should be entitled to vote. However, this is not
20 Dec 2010 : Column 151WS
a choice: it is a legal obligation. So the Government are announcing today that we will act to implement the judgment of the European Court of Human Rights. In deciding how to proceed, we have been guided by three principles. First, that we should implement the Hirst judgment in a way that meets our legal obligations, but does not go further than that. Secondly, that the most serious offenders will not be given the right to vote. Thirdly, that we should seek to prevent the taxpayer having to face future claims for compensation.
The Government will therefore bring forward legislation providing that the blanket ban in the existing law will be replaced. Offenders sentenced to a custodial sentence of four years or more will lose the right to vote in all circumstances, which reflects the Government's clear view that more serious offenders should not retain the right to vote. Offenders sentenced to a custodial sentence of less than four years will retain the right to vote, but legislation will provide that the sentencing judge will be able to remove that right if they consider that appropriate. Four years has in the past been regarded as the distinction between short and long-term prisoners, and the Government consider that permitting prisoners sentenced to less than four years' imprisonment to vote is sufficient to comply with the judgment.
The right to vote will be restricted to UK Westminster Parliamentary and European Parliament elections only, and not in other elections or referendums. That is the minimum currently required by the law (a case considering whether article 3, protocol 1 applies to elections to the Northern Ireland Assembly is currently before the European Court of Human Rights: the Government's position is that they do not). Prisoners will vote by post or proxy, and will be entitled to register to vote not at the prison, but at their former address or the area where they have a local connection.
We believe that these proposals can meet the objectives that we have set out of implementing the judgment in a way that is proportionate; ensuring the most serious offenders will not be given the right to vote; and seeking to prevent future claims for compensation. We will bring forward legislation next year for Parliament to debate.
While the franchise is reserved to Westminster, the implementation of this policy will clearly have implications for Scotland and Northern Ireland, where the administration of justice is devolved. The Government will work closely with colleagues in the Scottish and Northern Ireland Administrations before legislation is introduced on the practical implications of the approach.
Governments have an absolute duty to uphold the rule of law. And at this of all times we must avoid risking taxpayers' money in ways that the public would rightly condemn. In the light of this, and of the legacy left by the last Government, the only responsible course is to implement the judgment, and to do so in a way which ensures the most serious offenders continue to lose the right to vote.
Comment: Is Mark Harper attempting to mislead Parliament and the public with this statement which jumps straight from my judgment to Greens and MT judgment (which is not yet final) and ignores the Frodl v Austria judgment (which is final) which is binding on the UK and states all convicted prisoners must get the vote?
Government approach to prisoner voting rights
Government approach to prisoner voting rights
17 December 2010
The Government has confirmed proposals for prisoner voting rights which will prevent the most serious offenders from voting.
The move follows a court ruling which the Government is obliged to implement.
Under the proposals, all offenders sentenced to four years or more will automatically be barred from registering to vote. Prisoners sentenced to less than four years will retain the right to vote, unless the sentencing judge removes it.
Constitutional Reform Minister Mark Harper said:
"The Government has brought these proposals forward as a result of a court ruling which it is obliged to implement. This is not a choice, it is a legal obligation. We are ensuring the most serious offenders will continue to be barred from voting.
“If the Government failed to implement this judgement, we would not only be in breach of our international obligations but could be risking taxpayers’ money in paying out compensation claims".
The right to vote will be restricted to Westminster Parliamentary elections and European Parliament elections only. If a prisoner is allowed to keep their right to vote, they would do so either by post or proxy. Prisoners will not be registered at the prison, but at their former address or an area where they have a local connection.
A bar on serving prisoners voting was put in place in 1870. In 2005, the European Court of Human Rights ruled in the case of John Hirst that the existing ban on prisoners being able to vote was contrary to Article 3, Protocol 1 of the European Convention on Human Rights – the right to free and fair elections.
An announcement will be made to Parliament on Monday 20 December. Legislation will be brought forward next year for Parliament to debate.
Comment: "The Government has confirmed proposals for prisoner voting rights which will prevent the most serious offenders from voting". This does not make sense because in one sentence it talks about prisoners voting rights being granted and prisoners voting rights being removed. In other words, it is a nonsense statement. The government's proposals are contrary to the claim "The move follows a court ruling which the Government is obliged to implement". In Hirst v UK (No2) the ruling requires that all convicted prisoners must have the human right to vote, and given that the government concedes it is obliged to implement it why has the government then come up with proposals to largely ignore the ruling? "Under the proposals, all offenders sentenced to four years or more will automatically be barred from registering to vote. Prisoners sentenced to less than four years will retain the right to vote, unless the sentencing judge removes it". In Hirst v UK (No2), the Court ruled that neither seriousness of crime nor length of sentence could be a factor for the removal of so basic a human right as the right to the franchise. Therefore, it beggars belief that the government has even come forward with such proposals. The proposals fail to meet the twin aims of being legitimate and proportionate. In effect, a blanket ban will remain in force for all those prisoners serving 4 years or over regardless of the nature of their crimes. This in my view is still too indiscriminate. The Court ruled that only in the very limited circumstance for example someone convicted of electoral fraud or abuse of a public office could the vote be removed. And only then if the right was removed by a judge. Therefore, it leaves no scope for the right to be removed by the Executive or Parliament, which the government's proposals are advocating. In my view, these proposals are nothing short of a contempt of court. The UK is challenging the Council of Europe's power. If the UK is allowed to get away with this unchallenged by the Council of Europe, then according to the Interlaken Conference the ECtHR, Committee of Ministers and Council of Europe is finished.
Mark Harper is being untruthful when he states: "The Government has brought these proposals forward as a result of a court ruling". These proposals are not as a result of my court ruling. Whilst my case does require changes to be made to the law, these proposals are an attempt to limit my ruling and have been advanced to appease the Tory hard right. It is the Committee of Ministers which has to be satisfied and not the 1922 Committee. The obligation on the UK is to ensure that all citizens in the UK get their human rights under the Convention and not "We are ensuring the most serious offenders will continue to be barred from voting".
"If the Government failed to implement this judgement, we would not only be in breach of our international obligations but could be risking taxpayers’ money in paying out compensation claims". What is missing from this is the word "fully" as in fully complying with the judgment. Any half measure such as these proposals obviously will be seen by the Committee of Ministers as a failure to implement my judgment. Therefore, the UK remains in breach of its international obligations.
Mark Harper is also being untruthful about risking taxpayers money. Already, as a result of ignoring my judgment for 5 years, the taxpayers are facing a £135m bill to compensate prisoners who were denied their human right to vote in last year's European election and May's general election. And, if this is all not sorted out in time for May 2011 elections in Scotland, Wales and Northern Ireland and the AV referendum in England then the bill for the taxpayers could be as high as £270m - £300m.
"The right to vote will be restricted to Westminster Parliamentary elections and European Parliament elections only". This also does not go far enough because it fails to take into account local elections.
Clearly, the government's proposals are contrary to Article 3 of the First Protocol.
"Legislation will be brought forward next year for Parliament to debate". One of my arguments to the Court, which was accepted, was that Parliament had not debated the issue of whether convicted prisoners should have the right to vote. Therefore, what is there to debate now? The time has passed for any debate. The UK is in the absurd situation of if it debates the issue and decides to vote against the government proposals, then the UK is still in violation of the Convention. The main issue is not "let's debate it and reject it", but fully complying with the Court judgment which is already in place.
17 December 2010
The Government has confirmed proposals for prisoner voting rights which will prevent the most serious offenders from voting.
The move follows a court ruling which the Government is obliged to implement.
Under the proposals, all offenders sentenced to four years or more will automatically be barred from registering to vote. Prisoners sentenced to less than four years will retain the right to vote, unless the sentencing judge removes it.
Constitutional Reform Minister Mark Harper said:
"The Government has brought these proposals forward as a result of a court ruling which it is obliged to implement. This is not a choice, it is a legal obligation. We are ensuring the most serious offenders will continue to be barred from voting.
“If the Government failed to implement this judgement, we would not only be in breach of our international obligations but could be risking taxpayers’ money in paying out compensation claims".
The right to vote will be restricted to Westminster Parliamentary elections and European Parliament elections only. If a prisoner is allowed to keep their right to vote, they would do so either by post or proxy. Prisoners will not be registered at the prison, but at their former address or an area where they have a local connection.
A bar on serving prisoners voting was put in place in 1870. In 2005, the European Court of Human Rights ruled in the case of John Hirst that the existing ban on prisoners being able to vote was contrary to Article 3, Protocol 1 of the European Convention on Human Rights – the right to free and fair elections.
An announcement will be made to Parliament on Monday 20 December. Legislation will be brought forward next year for Parliament to debate.
Comment: "The Government has confirmed proposals for prisoner voting rights which will prevent the most serious offenders from voting". This does not make sense because in one sentence it talks about prisoners voting rights being granted and prisoners voting rights being removed. In other words, it is a nonsense statement. The government's proposals are contrary to the claim "The move follows a court ruling which the Government is obliged to implement". In Hirst v UK (No2) the ruling requires that all convicted prisoners must have the human right to vote, and given that the government concedes it is obliged to implement it why has the government then come up with proposals to largely ignore the ruling? "Under the proposals, all offenders sentenced to four years or more will automatically be barred from registering to vote. Prisoners sentenced to less than four years will retain the right to vote, unless the sentencing judge removes it". In Hirst v UK (No2), the Court ruled that neither seriousness of crime nor length of sentence could be a factor for the removal of so basic a human right as the right to the franchise. Therefore, it beggars belief that the government has even come forward with such proposals. The proposals fail to meet the twin aims of being legitimate and proportionate. In effect, a blanket ban will remain in force for all those prisoners serving 4 years or over regardless of the nature of their crimes. This in my view is still too indiscriminate. The Court ruled that only in the very limited circumstance for example someone convicted of electoral fraud or abuse of a public office could the vote be removed. And only then if the right was removed by a judge. Therefore, it leaves no scope for the right to be removed by the Executive or Parliament, which the government's proposals are advocating. In my view, these proposals are nothing short of a contempt of court. The UK is challenging the Council of Europe's power. If the UK is allowed to get away with this unchallenged by the Council of Europe, then according to the Interlaken Conference the ECtHR, Committee of Ministers and Council of Europe is finished.
Mark Harper is being untruthful when he states: "The Government has brought these proposals forward as a result of a court ruling". These proposals are not as a result of my court ruling. Whilst my case does require changes to be made to the law, these proposals are an attempt to limit my ruling and have been advanced to appease the Tory hard right. It is the Committee of Ministers which has to be satisfied and not the 1922 Committee. The obligation on the UK is to ensure that all citizens in the UK get their human rights under the Convention and not "We are ensuring the most serious offenders will continue to be barred from voting".
"If the Government failed to implement this judgement, we would not only be in breach of our international obligations but could be risking taxpayers’ money in paying out compensation claims". What is missing from this is the word "fully" as in fully complying with the judgment. Any half measure such as these proposals obviously will be seen by the Committee of Ministers as a failure to implement my judgment. Therefore, the UK remains in breach of its international obligations.
Mark Harper is also being untruthful about risking taxpayers money. Already, as a result of ignoring my judgment for 5 years, the taxpayers are facing a £135m bill to compensate prisoners who were denied their human right to vote in last year's European election and May's general election. And, if this is all not sorted out in time for May 2011 elections in Scotland, Wales and Northern Ireland and the AV referendum in England then the bill for the taxpayers could be as high as £270m - £300m.
"The right to vote will be restricted to Westminster Parliamentary elections and European Parliament elections only". This also does not go far enough because it fails to take into account local elections.
Clearly, the government's proposals are contrary to Article 3 of the First Protocol.
"Legislation will be brought forward next year for Parliament to debate". One of my arguments to the Court, which was accepted, was that Parliament had not debated the issue of whether convicted prisoners should have the right to vote. Therefore, what is there to debate now? The time has passed for any debate. The UK is in the absurd situation of if it debates the issue and decides to vote against the government proposals, then the UK is still in violation of the Convention. The main issue is not "let's debate it and reject it", but fully complying with the Court judgment which is already in place.
Monday, December 20, 2010
Jonathan Isaby rearguing the position the government lost in the ECtHR
Jonathan Isaby rearguing the position the government lost in the ECtHR
What a prize plonker!
Hat-Tip to PlayPolitical.com
What a prize plonker!
Hat-Tip to PlayPolitical.com
Unlucky 13 for the government?
Unlucky 13 for the government?
House of Commons Order of Business Monday 20 December 2010
Written Ministerial Statements to be made today
13 Deputy Prime Minister: Voting entitlement.
House of Commons Order of Business Monday 20 December 2010
Written Ministerial Statements to be made today
13 Deputy Prime Minister: Voting entitlement.
Tory hokey kokey
Tory hokey kokey
David Laws could return to frontline politics in shake-up of Kenneth Clarke's justice team
By James Chapman, Political Editor
Last updated at 12:57 AM on 20th December 2010
David Laws is being lined up for a return to government in a clearout of Kenneth Clarke’s Justice Ministry.
Government sources expect Mr Clarke, whose attempts to liberalise the criminal justice system have triggered controversy, to lose almost his entire ministerial team in a New Year reshuffle.
Mr Clarke has come under attack from the Tory Right over his determination to cut prison numbers and his failure to fend off a ruling from Europe that Britain must give prisoners the vote.
Suggestions that the Justice Secretary will be sacked are understood to be wide of the mark.
Lib Dem MP David Laws, left, could make a return to frontline politics while Conservative Kenneth Clarke's team looks set to be made smaller
But David Cameron is increasingly irritated by the performance of Mr Clarke’s department and is considering installing at least one Tory law-and-order hardliner and a Right-wing Liberal Democrat.
Out would go Tories Crispin Blunt and Jonathan Djanogly, and Lib Dem Lord McNally.
Government sources say the shake-up could offer the opportunity of a recall to the political front line for Mr Laws, a right-of-centre Lib Dem.
He was forced to resign as Chief Secretary to the Treasury over revelations about his expenses claims, but there was widespread sympathy for him at Westminster.
However, his return will depend on the outcome of a Parliamentary sleaze inquiry into his claims.
Comment: "Mr Clarke has come under attack from the Tory Right over...his failure to fend off a ruling from Europe that Britain must give prisoners the vote".
Er? How exactly is he to fend off the final say in a legal battle? Labour tried this for 5 years and failed miserably. The Tory right not only have their heads up their arses, they want to put their grubby fingers back in the till of expenses without receipt or justification or any transparency.
David Laws could return to frontline politics in shake-up of Kenneth Clarke's justice team
By James Chapman, Political Editor
Last updated at 12:57 AM on 20th December 2010
David Laws is being lined up for a return to government in a clearout of Kenneth Clarke’s Justice Ministry.
Government sources expect Mr Clarke, whose attempts to liberalise the criminal justice system have triggered controversy, to lose almost his entire ministerial team in a New Year reshuffle.
Mr Clarke has come under attack from the Tory Right over his determination to cut prison numbers and his failure to fend off a ruling from Europe that Britain must give prisoners the vote.
Suggestions that the Justice Secretary will be sacked are understood to be wide of the mark.
Lib Dem MP David Laws, left, could make a return to frontline politics while Conservative Kenneth Clarke's team looks set to be made smallerBut David Cameron is increasingly irritated by the performance of Mr Clarke’s department and is considering installing at least one Tory law-and-order hardliner and a Right-wing Liberal Democrat.
Out would go Tories Crispin Blunt and Jonathan Djanogly, and Lib Dem Lord McNally.
Government sources say the shake-up could offer the opportunity of a recall to the political front line for Mr Laws, a right-of-centre Lib Dem.
He was forced to resign as Chief Secretary to the Treasury over revelations about his expenses claims, but there was widespread sympathy for him at Westminster.
However, his return will depend on the outcome of a Parliamentary sleaze inquiry into his claims.
Comment: "Mr Clarke has come under attack from the Tory Right over...his failure to fend off a ruling from Europe that Britain must give prisoners the vote".
Er? How exactly is he to fend off the final say in a legal battle? Labour tried this for 5 years and failed miserably. The Tory right not only have their heads up their arses, they want to put their grubby fingers back in the till of expenses without receipt or justification or any transparency.
Sunday, December 19, 2010
UK Human Rights Blog's view and comment from JHL
UK Human Rights Blog's view and comment from JHL
Court of appeal rejects prisoner vote plea, government announces plans
December 17, 2010 by Adam Wagner
Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
It is a somewhat curious, and poorly understood, aspect of human rights law that decisions of the European Court of Human Rights are binding on governments but only “persuasive” in the courts. Whereas, confusingly, decisions of the highest UK courts are not binding on our own government. The government almost always pays attention to UK judgments, particularly in judicial review challenges to public authorities, but constitutionally speaking it does not have to. This is in contrast to the situation in the United States where the Supreme Court has a mandate to change the law if it breaches the constitution.
A trip to the dentist
So it was only a matter of time before the UK government had to respond to the five-year-old judgment in Hirst No. 2 (see my previous post), in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting breached Protocol 1, Article 3 of the European Convention on Human Rights, the duty to provide free and fair elections.
But the decision to allow prisoners to vote was always going to be controversial, and particularly so given that it the “eurocrats” forcing the UK to do so. So like a trip to the dentist, the previous government in particular put off the decision despite carrying out multiple consultations.
Given the unusually long delay, it was inevitable that a prisoner voting case would be brought back to the courts. The Strasbourg human rights court is supposed to be a court of final remedy, so if that remedy is won but not implemented, there is nowhere else to go but back downwards.
Which brings us to Mr Chester, a convicted child rapist and murderer who is serving a life term in prison. He asked the administrative court initially, following Hirst No. 2 and the more recent case of Frodl v Austria (see our post), if there was anything else it could do to implement the principles made very clear in those judgments. The admin court rejected his claim, and it then came before Lord Justice Laws in the court of appeal (England and Wales’ second highest appeal court).
The proper role of the court
Given that the government had examined the matter but not done anything as yet, the case raised a “substantial question“, the judge began, “as to the proper role of this court“.
Mr Chester asked for two things. His primary case was that, following Hirst No. 2, which had made clear that the blanket ban on prisoner voting breached the European Convention, and Frodl, which requires that the question of who votes should be decided by a judge, the court should give effect to the rule. Alternatively, the court should make a declaration of incompatibility, as Scottish court did in 2007.
The courts do have reasonably broad powers to “read” the law so as to comply with the European Convention. This can even involve adding words to primary legislation, as the Supreme Court did very recently in a case involving unmarried fathers’ rights to appear at hearings involving their children in Scotland. But it can only do so if the new wording reflects, rather than runs contrary to, the spirit of the original law.
The court considered the now well-known principles arising from Hirst No. 2, emphasising that although the court ruled that the UK’s blanket ban was unlawful, it also said that states have a fairly wide margin of appreciation as to what prisoners should be allowed to vote. On Frodl, Lord Justice Laws found the decision confusing, in that it is not clear whether it is essential (para 34), or merely preferable (para 28) that the decision to disenfranchise a prisoner should be taken by a judge. The court also referred to the even more recent decision in Greens, in which the European Court reiterated that the UK needed to alter the law soon or potentially face compensation claims amounting to millions of pounds.
The court rejected Mr Chester’s arguments. Lord Justice Laws was not prepared to go beyond what he considered the ordinary relationship of the courts to the government. Although he accepted that Chester’s case was in part “driven by the long delay – still at present continuing – in promoting legislation to give effect to the decision in Hirst“, he concluded that the court simply “no role to sanction government for such failures.” He explained
Under the HRA the Minister has no obligation to act on a declaration of incompatibility. If he does not, the complainant’s remedy is to take proceedings in Strasbourg where he will be able to deploy the domestic court’s judgment to the effect that his Convention rights have been violated. And failure by a Member State of the Council of Europe to give effect to a decision of the European Court of Human Rights sounds at the political level; it is as such not amenable to sanctions in the national courts.
Mr Chester requested that the court at least provide an advisory opinion as to what would be needed for the government to appropriately implement the decisions of the European Court. Lord Justice Laws declined, in this case at least, although he did, interestingly, leave the question open for different cases in the future. It would have been
a step too far for our predecessors in the common law no more than a generation or so ago. An advisory opinion as to what legislation, as yet undrafted, might properly contain or omit would have been quite beyond the pale. As it happens I can see a possible utility in such a jurisdiction in very carefully controlled circumstances, as our constitutional law evolves a strategic partnership between the branches of government. But not – emphatically not – in this case.
He concluded that the legislation which the government eventually passes “is likely to be acutely controversial.” Moreover, the “controversy will not be about the law, but about the wisdom or unwisdom of social policy” arising rom “deep philosophical differences of view between reasonable people upon the question of prisoners’ suffrage.”
A constitutional lesson
This decision was unsurprising. Given that the government has already said it will change the law to allow some prisoners to vote, the court of appeal was hardly likely to use this opportunity to pick a constitutional fight. And Lord Justice Laws is right to say that it is for the courts to interpret and not make the law. But the prisoner voting issue highlights the full extent of human rights protections in the UK and their limitations when decisions must result in politically unpopular decisions.
The Human Rights Act, combined with the ever-increasing number of judicial reviews of public authorities, has given the courts an expanded role in – as Lord Justice Laws described it – the “strategic partnership” between branches of government. The courts are also becoming more confident in asserting their constitutional role, as seen in the Phil Woolas and parliamentary expenses cases.
This trend may eventually result in a genuine confrontation between the courts and the government. That may have come in this case if the government had continued its refusal to allow prisoners to vote. The court of appeal may have been more sympathetic to the argument that human rights law is toothless if the government can simply ignore decisions, leading to a more robust protection of rights. That time may come, perhaps if the government seeks to limit or exclude secret evidence from court proceedings. And that would be a very interesting test of our “unwritten” constitution”. But as the judge said, not in this case.
Comment: It would appear from Hirst v UK (No2) and the failure to fully comply with the judgment, that as a nation the UK neither has no honour nor shame.
The case also exposes weaknesses in domestic law, and in the Council of Europe enforcement mechanisms of the Court’s judgments.
Laws LJ, can be fairly criticised for his judgment in Chester. (I am also somewhat puzzled why Chivers and Hugh Southey QC took the case). It may be that the Supreme Court will be asked to settle the issue.
Laws LJ, appears to have employed the same reasoning as Kennedy LJ, in my High Court application, which the ECtHR criticised in Hirst No2. I refer to the point about philosophy. Whilst it is an interesting study, it has no place in law. Kennedy LJ, was asked to perform a simple task, that is, to declare s.3 of ROPA 1983 incompatible with Art 3 of the 1st Protocol of the Convention. He abdicated responsibility (which is amusing given the Tory pledge to introduce a British Bill of Rights and Responsibilities!). He did say if s.3 can withstand the challenge from Art 3 of the 1st Protocol, then that’s the end of it. As we now know, it couldn’t therefore s.3 has to fall. Both the Electoral Commission and Venice Commission have stated that, in the light of Hirst No2, s.3 must be amended. Therefore, the UK has no legitimate excuse for failing to change domestic law to fully comply with my judgment. Had Kennedy LJ, done the job he was entrusted to do in the first place then the UK might not be in the mess that it still is in today.
In my view, Adam Wagner is incorrect to say that ECtHR decisions are binding on the government but only persuasive in the courts. Hirst v UK(No2) is the Individual v the State. This means that within the UK the Executive, the Judiciary and Parliament (the 3 arms of the State) have been taken to the ECtHR and because they lost then it follows therefore that all 3 are bound by the decision. I rely upon the Interlaken process being the highest authority. As this post dates previous domestic decisions then they cannot be relied upon as being any longer authorititive. Either Parliament has to legislate for this or the Supreme Court must rule on the position. The problem still appears to be that what happens over there is foreign, and the UK retains its supremacy. As the UK is presently 1/47th of the Council of Europe, in my view, such claims of supremacy are ahistorical. The only way that the UK can keep its sovereignity or supremacy is to leave Europe altogether. Otherwise, it has to accept and be bound by the decisions reached by the United States of Europe.
In my view, Adam Wagner is also wrong to claim that Hirst No2 states that the government has a wide margin of appreciation as to which prisoners should be allowed to vote. The margin of appreciation only extends to how to fully comply with the ruling, for example, whether to allow postal votes or install polling booths in prisons, and not to limit the scope of the judgment itself. If Adam’s view was correct it would mean that some prisoners are less eligible for human rights than others.
Perhaps, Laws LJ, should have popped out of the court and looked up at the words “Protect the poor and punish the wrongdoer” if he really wanted to know what the role of the court is. It is to dispense justice. It cannot be claimed that he did that in Chester. Once more a judge acted as a goalkeeper for the Secretary of State. Judicial review, in my view, is not an effective remedy. Why should a citizen in a so-called liberal democracy have to seek permission to legally challenge a public authority? Perhaps, O’Reilly v Mackman should be revisited? In my reading of Chester, Laws LJ, states he does not understand the judgments in Hirst No2 and Frodl, and Carnwath LJ, and Lord Neuberger MR, both agreed with him. This begs the question why, given their ignorance of the law, they were deciding the case? Have we no more competent judges out there?
What is generally being missed with my case are the constitutional issues, and I agree with Adam that it would appear that a constitutional clash between the courts and the Executive and Parliament may be inevitable. The Interlaken process requires the State to remedy human rights breaches. Because we do not have a true separation of powers none of the 3 arms of State provide the necessary checks and balances required in a modern democracy. Human Rights, Democracy and the Rule of Law are under threat with our present system. It means we are heading for a showdown with Europe. As Europe has ruled that the principle of subsidiarity must apply, it expects the UK to sort it out or Europe will do it for the UK on the grounds that there exists a systemic failure. Given that the EU has acceded to the Convention under the Lisbon Treaty, I suspect that the next move will be direct application or direct effect. Possibly via the Court of Justice of the European Union.
Court of appeal rejects prisoner vote plea, government announces plans
December 17, 2010 by Adam Wagner
Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
It is a somewhat curious, and poorly understood, aspect of human rights law that decisions of the European Court of Human Rights are binding on governments but only “persuasive” in the courts. Whereas, confusingly, decisions of the highest UK courts are not binding on our own government. The government almost always pays attention to UK judgments, particularly in judicial review challenges to public authorities, but constitutionally speaking it does not have to. This is in contrast to the situation in the United States where the Supreme Court has a mandate to change the law if it breaches the constitution.
A trip to the dentist
So it was only a matter of time before the UK government had to respond to the five-year-old judgment in Hirst No. 2 (see my previous post), in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting breached Protocol 1, Article 3 of the European Convention on Human Rights, the duty to provide free and fair elections.
But the decision to allow prisoners to vote was always going to be controversial, and particularly so given that it the “eurocrats” forcing the UK to do so. So like a trip to the dentist, the previous government in particular put off the decision despite carrying out multiple consultations.
Given the unusually long delay, it was inevitable that a prisoner voting case would be brought back to the courts. The Strasbourg human rights court is supposed to be a court of final remedy, so if that remedy is won but not implemented, there is nowhere else to go but back downwards.
Which brings us to Mr Chester, a convicted child rapist and murderer who is serving a life term in prison. He asked the administrative court initially, following Hirst No. 2 and the more recent case of Frodl v Austria (see our post), if there was anything else it could do to implement the principles made very clear in those judgments. The admin court rejected his claim, and it then came before Lord Justice Laws in the court of appeal (England and Wales’ second highest appeal court).
The proper role of the court
Given that the government had examined the matter but not done anything as yet, the case raised a “substantial question“, the judge began, “as to the proper role of this court“.
Mr Chester asked for two things. His primary case was that, following Hirst No. 2, which had made clear that the blanket ban on prisoner voting breached the European Convention, and Frodl, which requires that the question of who votes should be decided by a judge, the court should give effect to the rule. Alternatively, the court should make a declaration of incompatibility, as Scottish court did in 2007.
The courts do have reasonably broad powers to “read” the law so as to comply with the European Convention. This can even involve adding words to primary legislation, as the Supreme Court did very recently in a case involving unmarried fathers’ rights to appear at hearings involving their children in Scotland. But it can only do so if the new wording reflects, rather than runs contrary to, the spirit of the original law.
The court considered the now well-known principles arising from Hirst No. 2, emphasising that although the court ruled that the UK’s blanket ban was unlawful, it also said that states have a fairly wide margin of appreciation as to what prisoners should be allowed to vote. On Frodl, Lord Justice Laws found the decision confusing, in that it is not clear whether it is essential (para 34), or merely preferable (para 28) that the decision to disenfranchise a prisoner should be taken by a judge. The court also referred to the even more recent decision in Greens, in which the European Court reiterated that the UK needed to alter the law soon or potentially face compensation claims amounting to millions of pounds.
The court rejected Mr Chester’s arguments. Lord Justice Laws was not prepared to go beyond what he considered the ordinary relationship of the courts to the government. Although he accepted that Chester’s case was in part “driven by the long delay – still at present continuing – in promoting legislation to give effect to the decision in Hirst“, he concluded that the court simply “no role to sanction government for such failures.” He explained
Under the HRA the Minister has no obligation to act on a declaration of incompatibility. If he does not, the complainant’s remedy is to take proceedings in Strasbourg where he will be able to deploy the domestic court’s judgment to the effect that his Convention rights have been violated. And failure by a Member State of the Council of Europe to give effect to a decision of the European Court of Human Rights sounds at the political level; it is as such not amenable to sanctions in the national courts.
Mr Chester requested that the court at least provide an advisory opinion as to what would be needed for the government to appropriately implement the decisions of the European Court. Lord Justice Laws declined, in this case at least, although he did, interestingly, leave the question open for different cases in the future. It would have been
a step too far for our predecessors in the common law no more than a generation or so ago. An advisory opinion as to what legislation, as yet undrafted, might properly contain or omit would have been quite beyond the pale. As it happens I can see a possible utility in such a jurisdiction in very carefully controlled circumstances, as our constitutional law evolves a strategic partnership between the branches of government. But not – emphatically not – in this case.
He concluded that the legislation which the government eventually passes “is likely to be acutely controversial.” Moreover, the “controversy will not be about the law, but about the wisdom or unwisdom of social policy” arising rom “deep philosophical differences of view between reasonable people upon the question of prisoners’ suffrage.”
A constitutional lesson
This decision was unsurprising. Given that the government has already said it will change the law to allow some prisoners to vote, the court of appeal was hardly likely to use this opportunity to pick a constitutional fight. And Lord Justice Laws is right to say that it is for the courts to interpret and not make the law. But the prisoner voting issue highlights the full extent of human rights protections in the UK and their limitations when decisions must result in politically unpopular decisions.
The Human Rights Act, combined with the ever-increasing number of judicial reviews of public authorities, has given the courts an expanded role in – as Lord Justice Laws described it – the “strategic partnership” between branches of government. The courts are also becoming more confident in asserting their constitutional role, as seen in the Phil Woolas and parliamentary expenses cases.
This trend may eventually result in a genuine confrontation between the courts and the government. That may have come in this case if the government had continued its refusal to allow prisoners to vote. The court of appeal may have been more sympathetic to the argument that human rights law is toothless if the government can simply ignore decisions, leading to a more robust protection of rights. That time may come, perhaps if the government seeks to limit or exclude secret evidence from court proceedings. And that would be a very interesting test of our “unwritten” constitution”. But as the judge said, not in this case.
Comment: It would appear from Hirst v UK (No2) and the failure to fully comply with the judgment, that as a nation the UK neither has no honour nor shame.
The case also exposes weaknesses in domestic law, and in the Council of Europe enforcement mechanisms of the Court’s judgments.
Laws LJ, can be fairly criticised for his judgment in Chester. (I am also somewhat puzzled why Chivers and Hugh Southey QC took the case). It may be that the Supreme Court will be asked to settle the issue.
Laws LJ, appears to have employed the same reasoning as Kennedy LJ, in my High Court application, which the ECtHR criticised in Hirst No2. I refer to the point about philosophy. Whilst it is an interesting study, it has no place in law. Kennedy LJ, was asked to perform a simple task, that is, to declare s.3 of ROPA 1983 incompatible with Art 3 of the 1st Protocol of the Convention. He abdicated responsibility (which is amusing given the Tory pledge to introduce a British Bill of Rights and Responsibilities!). He did say if s.3 can withstand the challenge from Art 3 of the 1st Protocol, then that’s the end of it. As we now know, it couldn’t therefore s.3 has to fall. Both the Electoral Commission and Venice Commission have stated that, in the light of Hirst No2, s.3 must be amended. Therefore, the UK has no legitimate excuse for failing to change domestic law to fully comply with my judgment. Had Kennedy LJ, done the job he was entrusted to do in the first place then the UK might not be in the mess that it still is in today.
In my view, Adam Wagner is incorrect to say that ECtHR decisions are binding on the government but only persuasive in the courts. Hirst v UK(No2) is the Individual v the State. This means that within the UK the Executive, the Judiciary and Parliament (the 3 arms of the State) have been taken to the ECtHR and because they lost then it follows therefore that all 3 are bound by the decision. I rely upon the Interlaken process being the highest authority. As this post dates previous domestic decisions then they cannot be relied upon as being any longer authorititive. Either Parliament has to legislate for this or the Supreme Court must rule on the position. The problem still appears to be that what happens over there is foreign, and the UK retains its supremacy. As the UK is presently 1/47th of the Council of Europe, in my view, such claims of supremacy are ahistorical. The only way that the UK can keep its sovereignity or supremacy is to leave Europe altogether. Otherwise, it has to accept and be bound by the decisions reached by the United States of Europe.
In my view, Adam Wagner is also wrong to claim that Hirst No2 states that the government has a wide margin of appreciation as to which prisoners should be allowed to vote. The margin of appreciation only extends to how to fully comply with the ruling, for example, whether to allow postal votes or install polling booths in prisons, and not to limit the scope of the judgment itself. If Adam’s view was correct it would mean that some prisoners are less eligible for human rights than others.
Perhaps, Laws LJ, should have popped out of the court and looked up at the words “Protect the poor and punish the wrongdoer” if he really wanted to know what the role of the court is. It is to dispense justice. It cannot be claimed that he did that in Chester. Once more a judge acted as a goalkeeper for the Secretary of State. Judicial review, in my view, is not an effective remedy. Why should a citizen in a so-called liberal democracy have to seek permission to legally challenge a public authority? Perhaps, O’Reilly v Mackman should be revisited? In my reading of Chester, Laws LJ, states he does not understand the judgments in Hirst No2 and Frodl, and Carnwath LJ, and Lord Neuberger MR, both agreed with him. This begs the question why, given their ignorance of the law, they were deciding the case? Have we no more competent judges out there?
What is generally being missed with my case are the constitutional issues, and I agree with Adam that it would appear that a constitutional clash between the courts and the Executive and Parliament may be inevitable. The Interlaken process requires the State to remedy human rights breaches. Because we do not have a true separation of powers none of the 3 arms of State provide the necessary checks and balances required in a modern democracy. Human Rights, Democracy and the Rule of Law are under threat with our present system. It means we are heading for a showdown with Europe. As Europe has ruled that the principle of subsidiarity must apply, it expects the UK to sort it out or Europe will do it for the UK on the grounds that there exists a systemic failure. Given that the EU has acceded to the Convention under the Lisbon Treaty, I suspect that the next move will be direct application or direct effect. Possibly via the Court of Justice of the European Union.
Saturday, December 18, 2010
Dear David get your act together or else!
Dear David get your act together or else!
"Backbenchers are also furious over the shelving of a Tory plan to replace the Human Rights Act with a Bill of Rights, and over Coalition plans to give prisoners serving sentences of four years or less the vote - following a ruling by the European Court of Human Rights.
A Commons vote on the prisoner enfranchisement issue before Easter will see a "significant" number of Tory rebels, this newspaper understands".
The ruling of the European Court of Human Rights in Hirst v UK (No2) did not refer to any only those serving 4 years and under getting the vote. Rather, the Court ruled that all convicted prisoners must get the vote.
As for a Commons vote before Easter, this all needs to be sorted out in February in time for the 2011 elections in Scotland, Wales and Northern Ireland and the referendum on 11 May 2011.
David Cameron needs to bear it in mind that it is not these so-called victim groups and the backbenchers he needs to worry about but the real victims denied their human rights to vote by the State.
"Backbenchers are also furious over the shelving of a Tory plan to replace the Human Rights Act with a Bill of Rights, and over Coalition plans to give prisoners serving sentences of four years or less the vote - following a ruling by the European Court of Human Rights.
A Commons vote on the prisoner enfranchisement issue before Easter will see a "significant" number of Tory rebels, this newspaper understands".
The ruling of the European Court of Human Rights in Hirst v UK (No2) did not refer to any only those serving 4 years and under getting the vote. Rather, the Court ruled that all convicted prisoners must get the vote.
As for a Commons vote before Easter, this all needs to be sorted out in February in time for the 2011 elections in Scotland, Wales and Northern Ireland and the referendum on 11 May 2011.
David Cameron needs to bear it in mind that it is not these so-called victim groups and the backbenchers he needs to worry about but the real victims denied their human rights to vote by the State.
More than 150 inmates escape from Mexican prison
More than 150 inmates escape from Mexican prison
At least 159 inmates escaped from a prison in the northeastern Mexican border city of Nuevo Laredo on Friday in one of the country's biggest jail breaks in recent years, prison officials said.
A bullet-scarred house in Nuevo Laredo Photo: DAVID HOWELLS
9:10PM GMT 17 Dec 2010
"There were 159 inmates who apparently left through the main entrance," an official with the city's penitentiary system said. It was one of the biggest prison escapes in recent years, surpassing the 85 inmates who broke out of a prison in the northern border city of Reynosa in September.
Between January and September, an estimated 200 prisoners have escaped from prisons in Tamaulipas, where Nuevo Laredo is located, according to the state public security officials.
The area is the scene of a bloody struggle between two rival drug gangs, the Gulf Cartel and Los Zetas, according to officials.
The border area has been the scene of rising lawlessness as drug cartels battle it out among themselves for lucrative smuggling routes into the United States, and with Mexican police and military.
After news of the break, extra police and troops were brought in to reinforce security at the prison.
Officials said this week the number of deaths in Mexico's vicious four-year drug gang war has soared past 30,000, with 12,456 fatalities this year alone.
President Felipe Calderón launched a massive military crackdown on the cartels in December 2006, and since then there has been an escalating cycle of violence.
At least 159 inmates escaped from a prison in the northeastern Mexican border city of Nuevo Laredo on Friday in one of the country's biggest jail breaks in recent years, prison officials said.
A bullet-scarred house in Nuevo Laredo Photo: DAVID HOWELLS9:10PM GMT 17 Dec 2010
"There were 159 inmates who apparently left through the main entrance," an official with the city's penitentiary system said. It was one of the biggest prison escapes in recent years, surpassing the 85 inmates who broke out of a prison in the northern border city of Reynosa in September.
Between January and September, an estimated 200 prisoners have escaped from prisons in Tamaulipas, where Nuevo Laredo is located, according to the state public security officials.
The area is the scene of a bloody struggle between two rival drug gangs, the Gulf Cartel and Los Zetas, according to officials.
The border area has been the scene of rising lawlessness as drug cartels battle it out among themselves for lucrative smuggling routes into the United States, and with Mexican police and military.
After news of the break, extra police and troops were brought in to reinforce security at the prison.
Officials said this week the number of deaths in Mexico's vicious four-year drug gang war has soared past 30,000, with 12,456 fatalities this year alone.
President Felipe Calderón launched a massive military crackdown on the cartels in December 2006, and since then there has been an escalating cycle of violence.
Liverpool lawyer behind campaign to give prisoners votes says latest plans ‘not enough’
Liverpool lawyer behind campaign to give prisoners votes says latest plans ‘not enough’
Dec 18 2010 by Ben Schofield, Liverpool Echo
A LIVERPOOL lawyer today said a move to give prisoners serving less than four years inside the right to vote does not go far enough.
Elkan Ambrahamson has campaigned for six years to get the law changed in favour of inmates.
But he said legislation planned by the Government for next year may not comply with European Union laws and could lead to more law suits.
Under plans outlined yesterday criminals serving sentences of four years or more will not be allowed to vote and sentencing judges will be given the power to remove voting rights for those serving shorter sentences.
The UK has to change its voting laws after the European Court of Human Rights said its Representation of the People Act, which bars prisoners from voting, was unlawful.
A case was taken to the Strasbourg court in 2004 by Mr Abrahamson on behalf of manslaughter convict John Hirst.
European judges said the UK was wrong to deny Mr Hirst the right to vote and demanded the law change.
Frustrated by the lack of progress on passing new legislation, Mr Abrahamson, who works for Church Street-based Jackson & Canter, started encouraging prisoners to sue the Government for not allowing them to vote in the May general election.
Responding to the plans Mr Abrahamson said today: “It’s a step in the right direction, but this needs to be looked at a bit. I would have liked to have seen a system which allows a decision to be made on the facts of a particular case, for judges to make a decision when they sentence people.
“This probably isn’t enough to comply with the European cases.
“It could lead to more litigation.”
David Cameron’s spokesman said: “We are responding to court judgements.
“We have to comply with those judgements and we don’t want to get into a situation where we are compensating prisoners because we have not complied.
“It is not something the Prime Minister would do if he were given a free choice on this.”
Dec 18 2010 by Ben Schofield, Liverpool Echo
A LIVERPOOL lawyer today said a move to give prisoners serving less than four years inside the right to vote does not go far enough.
Elkan Ambrahamson has campaigned for six years to get the law changed in favour of inmates.
But he said legislation planned by the Government for next year may not comply with European Union laws and could lead to more law suits.
Under plans outlined yesterday criminals serving sentences of four years or more will not be allowed to vote and sentencing judges will be given the power to remove voting rights for those serving shorter sentences.
The UK has to change its voting laws after the European Court of Human Rights said its Representation of the People Act, which bars prisoners from voting, was unlawful.
A case was taken to the Strasbourg court in 2004 by Mr Abrahamson on behalf of manslaughter convict John Hirst.
European judges said the UK was wrong to deny Mr Hirst the right to vote and demanded the law change.
Frustrated by the lack of progress on passing new legislation, Mr Abrahamson, who works for Church Street-based Jackson & Canter, started encouraging prisoners to sue the Government for not allowing them to vote in the May general election.
Responding to the plans Mr Abrahamson said today: “It’s a step in the right direction, but this needs to be looked at a bit. I would have liked to have seen a system which allows a decision to be made on the facts of a particular case, for judges to make a decision when they sentence people.
“This probably isn’t enough to comply with the European cases.
“It could lead to more litigation.”
David Cameron’s spokesman said: “We are responding to court judgements.
“We have to comply with those judgements and we don’t want to get into a situation where we are compensating prisoners because we have not complied.
“It is not something the Prime Minister would do if he were given a free choice on this.”