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Friday, February 04, 2011

Prisoners votes: Political and Constitutional Reform Committee

Prisoners votes: Political and Constitutional Reform Committee

Written evidence submitted by the AIRE Centre

The AIRE Centre is a Law Centre based in London but working throughout Europe. The Centre provides information and advice on the rights of individuals under, inter alia, the law of the European Union and the law of the European Convention on Human Rights and the interface between the two legal orders. The Centre also provides direct legal representation before the European Court of Human Rights as well as intervening as a third party on issues of European law which arise before the ECtHR, the CJEU and domestic UK courts. In the past fifteen years it has been involved in more than 100 cases before those courts, including several cases relating to the situation of prisoners as governed by the ECHR and EU law.

The Centre is a registered charity and is regularly called upon to provide expert legal assistance to individuals and general legal advice to governmental and intergovernmental bodies.

The AIRE centre was third party intervenor in the case of Hirst v UK (No. 2) (App No 74025/01) (6 October 2005) and represented the applicant in Frodl v Austria (App No 20201/04) (8 April 2010), both of which concerned prisoners’ voting rights. The Centre was also accepted by the European Court as a third party intervenor in the case of Sejdic and Finci v Bosnia and Herzegovina (App Nos 27996/06 and 34836/06) (22 December 2009) which concerned disqualification from the right to stand for public office.

It is well known that it is now over five years since the European Court of Human rights delivered its judgment in Hirst v UK.

The UK was not only one of the most prominent drafters of the ECHR but, in the exercise of its sovereign discretion, agreed to be legally bound by its provisions. Although the right at issue on the prisoners voting case - the right to free elections - was not a part of the original Convention adopted in 1950 it was soon added to the Convention by the unanimous consent of all the parties, including the UK, and became part of the Convention in March 1952, as Article 3 of Protocol 1.

It is trite law that under Article 46 (1) of the ECHR judgments of the ECHR are binding on the UK. This is because in signing and ratifying the Convention and its Protocols the UK voluntarily undertook to be bound by them. It was suggested in the adjournment debate of 11th January that the UK had not accepted to be bound by rulings of the Court in relation to the First Protocol. This is erroneous.

The disenfranchisement of prisoners

Constraints of space prevent a full analysis of this issue, but it is well known that, historically, convicted felons were subject to capital punishment and thus from the moment of their conviction were legally dead. They lost all civil rights, including the right to vote, and their property was forfeit. During the 19th Century their sentences were commuted either to transportation or to a sentence of imprisonment. The Forfeiture Act of 1870 modified the "civic death" imposed on those guilty of treason and other felonies in many ways, but retained the disqualification for standing for or holding public office and the disenfranchisement which attached to being a convicted felon.

A number of judgments of the ECtHR have now made it clear that a provision of national law which operates as a blanket ban to prisoners voting is incompatible with the underlying principles of the Convention. Infringements of rights must be necessary relevant and proportionate. The Court has found this in several cases – most notably and in the Hirst judgments, in Calmanovici v Romania (App No 42250/02) (1 July 2008), in Frodl v Austria (App No 20201/04) (8 April 2010) and just two weeks ago in Scoppola No 3 v Italy (App No 126/05) (18 January 2011).

The purpose of a sentence of imprisonment is multiple in nature:- prevention – the public is protected from criminal conduct whist the individual is deprived of his liberty; punitive – the deprivation of liberty is a punishment imposed for the crime committed; and rehabilitative – the prison regime is intended to assist the convicted offender to reform himself so as to reintegrate better into law abiding society on release.

It is difficult to see which of these aims is rationally connected to disenfranchisement. A prisoner loses his liberty. He does not lose other civil and civic rights which are not logically connected either to his crime or to the exigencies of the prison regime.

He continues to be liable to pay taxes on any income or property he may have (many prisoners are compliant tax payers); to be entitled to make a will; to inherit property; to buy and sell property; to instruct his lawyer in relation to those matters and if necessary to litigate them before the courts; to maintain contact with his family and to a more limited degree with other persons in the outside world; to divorce and (with the permission of the prison governor) to marry.

Not to be able to vote is thus an anomaly. But perhaps more importantly the public dignity of the United Kingdom requires that – as vocal proponents of the importance of a society that lives by the rule of law – we must take effective steps to comply with the judgment of a court to whose jurisdiction we voluntarily subscribed.

The terms of the Hirst judgment have already been well rehearsed. In Calmanovici v Romania (App No 42250/02) (1 July 2008) the Court then went on to find that the Convention was violated by a similar provision in Romanian law. The Romanian authorities responded by leaving the question of disenfranchisement to the discretion of the judicial authorities responsible for determining the criminal charge. The judgement in Frodl v Austria (App 20201/04) (8 April 2010) made it clear that for disenfranchisement as a penal sanction to be compliant with the Convention it must be both imposed by the sentencing judge, (not an automatic consequence of conviction) and it must have a logical nexus to the offence committed.

This approach was re-affirmed only two weeks ago in the case of Scoppola v Italy (App 126/05) (18 January 2011). The Court noted that in Italy disenfranchisement was not an automatic penalty attached to any prison sentence but was imposed only for specific offences relating to the abuse of public funds or public office and also for other offences attracting a sentence of more than three years In that case the Court, relying on the judgment of the Grand Chamber in Hirst and its subsequent judgments in Frodl and Calmanovici, re-iterated that disenfranchisement must (1) be expressly specified by the sentencing judge as an additional penalty and (2) be logically connected to the offence committed.

The UK Government do not appear to have exercised the possibility of intervening (under Article 36 of the Convention) in any of the above cases with a view to influencing the approach to this issue to be taken by the Court (contrast e.g. the case of Saadi v Italy (App No 37201/06) (28 February 2008) and A v UK (App No 35373/97) (17 December 2002 – parliamentary immunities where the Austrian, Belgian , Dutch, French , Finnish, Irish, Italian and Norwegian Governments intervened)).

The case of MDU v Italy (App No 58540/00) (28 January 2003), also concerned a complaint that Art 1 Protocol 1 had been infringed by disqualification from standing for public office and disenfranchisement (for a period of two years) being attached to a penal sanction for serious tax offences. The applicant had been elected as a member of parliament. The Court found that the sanction, which was expressly imposed as, a separate part of the sentence by the judge and in the applicant’s specific circumstances both pursued and was proportionate a legitimate aim - the proper orderly functioning of a democratic state.

The suggestion was raised in the adjournment debate of 11th January that the UK Parliament should not be dictated to by any European institution, including a Court whose judgements the UK has voluntarily accepted as binding.

The following quote from the recent judgment in Greens and MT v UK (App Nos 60041/08 and 60054/08) (23 November 2010) makes it clear that – far from the Strasbourg court giving orders to the elected representatives of the people of the UK - the Court has gone to great lengths to make it clear that it leaves the means of complying with the Hirst judgment to the discretion of the UK legislature:

"113. The Court observes that it was recently held in Frodl, cited above, § 32, that, taking into account the particular circumstances, 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. On that basis, there was a violation of Article 3 of Protocol No. 1 in that case. However, the Court recalls that the Grand Chamber in Hirst declined to provide any detailed guidance as to the steps which the United Kingdom should take to render its regime compatible with Article 3 of Protocol No. 1, despite the Government’s contention in that case that such guidance was necessary (see Hirst, § 52). As the Court emphasised in Hirst, there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision (see § 61 of its judgment). 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, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII; and Sukhovetskyy v. Ukraine, no. 13716/02, §§ 68-69, ECHR 2006VI).

114. Like the Registration Appeal Court (see paragraph above) and Burton J in the High Court (see paragraphs and above), the Court considers that a wide range of policy alternatives are available to the Government in the present context. In this regard, the Court observes that the Government of the respondent State have carried out consultations regarding proposed legislative change and are currently actively working on draft proposals (see paragraphs - and above). 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. Such legislative proposals will be examined in due course by the Committee of Ministers in the context of its supervision of the execution of the Hirst judgment. Further, it may fall to the Court at some future point, in the exercise of its supervisory role and in the context of any new application under Article 34 of the Convention, to assess the compatibility of the new regime with the requirements of the Convention."

The judgment in Frodl, now reinforced by the judgment in Scoppola, is binding. It should be noted that the Court declined, when asked by the Austrian Government, to refer the Frodl case to the Grand Chamber thereby indicating that it had no doubts that the principles set out in the Chamber judgment in Frodl were fully consistent with the Grand Chamber judgment in Hirst. It nevertheless remains clear , as is emphasised in the Greens and MT judgment, that the UK is free to adopt whatever detailed remedial legislation if chooses as long as that legislation is compatible with the now consistent body of caselaw emerging from the Court.

The thrust of the consolidated jurisprudence seems to be that it is wholly unacceptable for there to be automatic disenfranchisement by operation of law. It would however appear to be acceptable for there to be a presumption of disenfranchisement of an individual convicted of electoral fraud or abuse of parliamentary expenses, and offences such as tax evasion, taking bribes, misuse of public funds or perverting the course of justice particularly when committed by a public official or elected representative (with or without a prison sentence being imposed). The presumption would nevertheless mean that such disenfranchisement would have to be specifically imposed by the sentencing judge.

The jurisprudence makes clear that there can be no automatic disenfranchisement of common criminals. It also suggests that there could be no presumption of disenfranchisement of those convicted as common criminals. If those convicted of common crimes are to be disenfranchised this would not only have to be a sanction specifically imposed by the sentencing judge over and above the sentence of imprisonment passed but also determined by the judge to have a logical nexus to the offence committed, or the conduct of the offender. (The ECHR case law on a state’s assessment of what constitutes a threat to national security might be applicable mutatis mutandis (see e.g. C.G. v Bulgaria App No 1365/07 (24 April 2008) in this context)

It is for Parliament to ensure that any scheme it now adopts is unlikely to result in further litigation before the ECtHR and more importantly unlikely to result in further findings that UK has violated the Convention.

31 January 2011

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