More dodgy legal advice from Carl Gardner

More dodgy legal advice from Carl Gardner

Prisoners’ votes: another dodgy ruling from the European Court

by Carl Gardner on January 18, 2011

The European Court of Human Rights has ruled today that an Italian prisoner’s rights were breached where he was sentenced to prison for life, and as a result lost the right to vote indefinitely. The ECtHR’s ruling in Scoppola v Italy (the judgment is only available in French for the moment, I’m afraid) will cause concern among ministers in London – and for good reason. The ruling is legally questionable. But if the judges in Strasbourg do maintain this line in future, their new “four year cut-off” policy may be indefensible in the courts, and they could have to make more concessions.

I last wrote about this issue before Christmas, when the government announced its proposed “four year rule”: prisoners serving less than four years will be entitled to vote, while those serving four years or more will not. That stance was clearly a calculated risk by ministers: following the key ruling in Hirst v UK in 2005, the judgment in Frodl v Austria went far further, strongly suggested the UK would have to give almost all prisoners the vote, and that any disenfranchisement could only relate to a very narrow category of prisoners and be imposed by the sentencing judge in an individual case. On that approach, no “bright line” policy based on four years, ten years or even life imprisonment would be permitted. So the government must have been mightily relieved when in its “pilot judgment” in Greens & MT v UK, the court appeared to step back from Frodl (paras. 113-114):

it was recently held in Frodl … that … any decision on disenfranchisement should be taken by a judge and there must be a link between the offence committed and issues relating to elections and democratic institutions… However… As the Court emphasised in Hirst, there are numerous ways of organising and running electoral systems… The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result … the role of the domestic policy-maker should be given special weight ……

the Court considers that a wide range of policy alternatives are available to the Government in the present context…. Emphasising the wide margin of appreciation in this area (see Hirst, § 61), the Court is of the view that it is for the Government, following appropriate consultation, to decide in the first instance how to achieve compliance with Article 3 of Protocol No. 1 when introducing legislative proposals.

That judgment re-opened the door to the kind of “bright lines” approach the government then decided to take, based on a four-year cut-off.

Scoppola, though, appears to take the Court’s thinking straight back to Frodl. In this case, Italian law deprives prisoners of the vote automatically if they are sentenced to three years imprisonment or more – a system closely resembling the UK government’s current policy. The Strasbourg judges have concluded that breaches the right to free elections not because three years is too low, but, just as in Frodl, because any such generalised cut-off is impermissible (para. 43; the translation is mine):

The Court finally recalls that in its recent case law in applying the criteria established in the case of Hirst v. United Kingdom (No. 2), it is essential that the decision on disenfranchisement be taken by a judge and be appropriately reasoned.

There’s no cause for immediate panic in Whitehall. As a matter of international law, the UK is entitled to stand on Hirst and Greens, and see if its new policy survives any challenge in the courts. But there is clearly a shocking inconsistency in the approaches of the judges in Strasbourg, the decision arrived at here unanimously being based on a clearly different, more formalistic and intrusive approach from that also taken unanimously in the more politically sensible Greens judgment.

No wonder senior MPs are concerned about this. Jack Straw and David Davis are being unrealistic if they think Hirst and Greens can be ignored or overruled, even by Parliament. But judges can take unreasonable stands too, and in Frodl and now Scoppola, some Strasbourg judges have gone far too far in laying down in precise detail what national policies must be.

Comment: It has to be said that it is a bit much coming from the man who used to provide legal advice to the Labour administration, to write this headline "Prisoners’ votes: another dodgy ruling from the European Court". Bearing in mind that Labour was responsible for the Dodgy Dossier over WMD, and dodgy consultation exercises for prisoners votes by Charles Falconer! The highest court in Europe is wrong and Carl Gardner is right? He's having a laugh!

"The ruling is legally questionable". What is questionable is that a lawyer in the UK has the cheek to question the judges ruling. Lawyers argue their cases under the adversarial procedure, and the judges decide which side is right and which side is wrong. Here we have a lawyer not involved in the case, and clearly "ignorance of the law is no excuse" siding with the losers. The ECtHR will maintain this line in future quite simply because the Court will have relied upon the leading legal authority, Hirst v UK (No2). The coalition's “four year cut-off” policy is indefensible, and they will have to make more concessions. For example, all convicted prisoners must get the vote.

I am puzzled by Carl's use of the term "calculated risk". Answers.com suggests this definition: "A chance taken after careful estimation of the probable outcome, as in Taking their dispute to arbitration was definitely a calculated risk. This term uses calculated in the sense of "planned with forethought," a usage from the mid-1800s. Its pairing with risk dates from World War II, when the chances for losing bombers were taken into account before a bombing mission was sent out. After the war the term was transferred to other undertakings where taking a chance to succeed had to be weighed against the costs of failure". The coalition gamble has not paid off. This is not surprising given that it is a matter for the Council of Europe and not the UK to interpret the ruling in my case. I recall Charles Falconer giving his erroneous interpretation of my case on The World at One, and he had not even read it to see what it did say! Carl is wrong to claim that Frodl went "far further" than Hirst No 2. Frodl merely reaffirmed what was decided in my case, and the Court stated that it had applied the Hirst test and exactly what this entails. The UK was not only found guilty in my case, but has also now been caught out trying to wriggle off the hook altogether and failing that to try and get away with minimal compliance. The cost of this failure means that the taxpayers will be saddled with a £135m bill in damages for convicted prisoners denied the vote. I disagree with Carl that the Court in any way stepped back from Hirst/Frodl in Greens and MT v UK. In fact, by judging that the UK was in violation of my case and giving the UK 6 months to fully comply or else this fast streamed the process saving me the bother of lodging Rule 11 'infringment proceedings' with the Committee of Ministers.

I don't accept that any "bright-lines" rule benefitted the UK at all because, like I said, the interpretation of my case wasn't a matter for the UK to determine being the losing party in the dispute. The margin of appreciation relates to, for example, whether the UK puts polling booths in the prisons or instead allows prisoners postal ballots. It certainly did not extend to the discretion of which prisoners can and cannot have the human right to vote! This would be akin to saying which prisoners are or are not human beings. Long gone are the days when the Lord of the Manor gave the poor the privilege of the crumbs from his table.

I beg to differ with Carl yet again, there is cause for panic in Whitehall as my campaign marches down it. Once more Carl gets it wrong, as a matter of international law the Council of Europe takes a stand on Hirst No2. Because Frodl was decided applying the Hirst test it also stands firm, and as the appeal application lodged by Austria was rejected by the Grand Chamber it supports Hirst No2. Greens cannot be relied upon as yet simply because it does not become final until both parties to the case decide not to appeal to the Grand Chamber within 3 months of it being decided in the Chamber. The policy would not survive a challenge in the courts, simply because Hirst v UK (No2) is binding on the courts as well as the Executive and Parliament. Carl is forgetting that it is the Council of Europe, Committee of Ministers, ECtHR and Parliamentary Assembly of the Council of Europe which have to be satisfied and not any court in the UK. Carl, no surprise, is wrong again in his view that the Court is being inconsistent in its decisions. This was argued by the UK at the Grand Chamber in my case, and firmly rejected by the Court which explained away the UK's illogical thinking by logically explaining the consistent approach taken in each case cited by the UK.

Carl is right to dimiss the antics of Jack Straw and David Davis. I will also agree that some judges can take unreasonable stands, for example, that taken by Kennedy LJ, in my case before the High Court in London. I think what Carl fails to appreciate in the reasonable stands taken in Frodl and Scoppola is that in Hirst No2 it clearly states that where it is identified that that has been a systemic failure, as with the non-compliance in my case, then the Court will step in and put the Member State's house in order to conform with the Convention. Basically, if the Member State does not like this interference it must lump it or it has the choice of leaving the Council of Europe and (since the Lisbon Treaty) EU. However, the UK will then be a rogue or pariah State and (since November 2010) also face sanctions from the UN under the Interlaken process.