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Tuesday, March 15, 2011

Prisoners votes: The Chewbacca Defence

Prisoners votes: The Chewbacca Defence

By Andrew Henley, from insidetime issue March 2011

How Cameron, the tabloids and a multitude of politicians are fighting the campaign against prisoner voting.

Fans of the TV programme South Park may recall a memorable episode in 1998 which parodied the lawyer Johnnie Cochran’s closing remarks in the OJ Simpson murder trial:

“Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defence rests.”

The ‘Chewbacca Defence’ has come to represent any legal or propaganda strategy that is won by nonsensical and illogical arguments that are designed to confuse the audience and drown out any legitimate opposing points of view. The idea being that if you can get the opposing side to shut up, you’ve won by default!

Given the recent government backtracking over the issue of prisoner voting, and the sadly unsurprising alliance between fellow hardliners David Davis and Jack Straw, it seemed appropriate to examine the political discourse over the issue. The comments that follow from David Cameron reveal his true thoughts on prisoners:

“It makes me physically ill even to contemplate having to give the vote to anyone who is in prison. Frankly, when people commit a crime and go to prison, they should lose their rights, including the right to vote.”

(Hansard, House of Commons, 3rd November 2010: Column 921)

This begs the question, which other rights does the Prime Minister think prisoners should lose as a result of incarceration and perhaps more importantly, why does he even think this in the first place? Unfortunately, Cameron has yet to explain this beyond saying that he has to do something about prisoner voting because Labour didn’t.

The loss of liberty of prisoners is often presented by opponents to prisoner voting as a way in which we already restrict the rights of prisoners. This is simply not true. The European Convention on Human Rights allows for “the lawful detention of a person after conviction by a competent court” in Article 5, so imprisonment is not in itself a breach of a person’s rights. Protocol 1, Article 3 on the other hand states that:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.

Nowhere in this second statement is an exception granted for prisoners – hence why John Hirst won his case, twice.

Politicians and journalists often use rhetoric such as that displayed by Cameron as they know that in the minds of the public, sympathy for victims of crime will always trump any feelings of compassion that might exist towards prisoners. Numerous stories about prisons in the Right-wing press often begin with an immediate association between the issue and the ‘murderers, rapists and paedophiles’ who they know will generate the most public fear:

‘Mr Blunt… also indicated an end to sentences which allow judges to lock up indefinitely thousands of the country's worst offenders - including rapists, paedophiles and murderers.’

(Now you pay for prison parties, Daily Mail, 23rd July 2010).

‘RAPISTS, paedophiles, a killer and drug-dealers may pocket £300,000 after prison sarnies gave them food poisoning.’

(Lags want £300k for dodgy egg roll, The Sun, 13th December 2010).

Another common tactic is to create a false choice between the rights of victims of crime to be offered the help and support they deserve and the rights of prisoners to be treated in a way that respects fundamental human rights. Issues of human rights are often presented as though any improvement in the situation of prisoners is somehow designed to reduce the rights of victims.

‘Human rights legislation is effectively weighted towards the criminal because as inmates they have access to legal aid while law-abiding people who are less well-off cannot afford to instruct a solicitor, she suggested. "In order to access the human rights system you have to pay a lawyer. If you're on the outside, being a good citizen and working, you can't afford a lawyer, if you're a prisoner on the inside you're entitled to a lawyer."

(Victims' commissioner, Sara Payne, calls for major law and order reform in first report, The Daily Telegraph, 20th September 2009)

This quotation immediately reveals an erroneous conclusion from the newspaper. Sara Payne is actually making a point about fairer public access to legal aid, but the Telegraph is using this to claim that “Human rights legislation is effectively weighted towards the criminal”, the implication being that the only way to achieve a fairer system is to remove human rights and legal aid from prisoners rather than simply making legal aid more widely available to victims.

Sara Payne herself was subject to considerable criticism from the Chair of the National Victims Association during her one-year tenure as ‘Victim’s Champion’ for her failure to engage with the organisation. In a letter to Payne dated February 11th 2009, David Hines wrote:

“On a number of occasions since your appointment, I have emailed you and written to you, to both your home and office addresses but have not received any acknowledgement.”

And after her non-appearance at the charities Annual Memorial Service he wrote on the 19th February 2009:

“Saturday was an ideal opportunity to demonstrate that there was in fact someone in Government interested in bereaved families and the truth is that many people trusted that their Victim’s Champion wouldn’t have dreamt of not being there. That may not be what you want to hear but honesty is always best.”

It may well be that the appointment of a Victim’s Champion and the subsequent introduction of Victim’s Commissioner Louise Casey is merely a fig-leaf for successive governments who aren’t really interested in engaging with those who have been affected by crime. However, that doesn’t stop politicians from exploiting concern for victims in order to duck the issue of criminal justice reform:

‘Shadow justice secretary Sadiq Khan said: "I am pleased that this government has undertaken this U-turn. "The Government should be standing up for the victims of crime but instead they are slashing police numbers and giving dangerous convicted prisoners the vote. I hope for all our sakes this is the first of many U-turns."’

(U-Turn claim on prisoner’s votes, Daily Express, 20th January 2011)

Again we see a false choice presented between prisoner voting and concern for victims. Yet from a cynical perspective, which politicians wouldn’t want to present themselves as the caring and concerned champion of the defenceless? Politicians and newspapers do this safe in the knowledge that nobody in authority will dare to challenge their view for fear of being branded unsympathetic towards victims, or worse, more interested in the rights of ‘criminals’.

Unfortunately we have seen this approach spill over into more overt prisoner-bashing with a particularly distasteful example being the 2010 General Election campaign of the Labour MP for Birmingham Hall Green, Roger Godsiff. This included the production of leaflets which, although eventually scrapped, included pictures of high-profile prisoners and the question: “Do you want convicted murderers, rapists and paedophiles to be given the vote? The Lib Dems do.”

Godsiff not only incurred the second highest expenses of all 647 MPs' for 2008/2009 with claims for £189,338 but also has a voting attendance in Parliament that has declined steadily during his time in the House of Commons (1997 -2001: 72.2%, 2001-2005: 62.4%, 2005-2010: 56.0%). However, the lesson here is that if you play to the public’s fear of crime – you still get elected. Godsiff won his campaign and the Liberal Democrat candidate ended in third place. His voting attendance in Parliament is currently well below average at 50.5% (, Accessed: 1st February 2011).

Is it yet to be adequately explained how allowing prisoners to vote in elections will in any way cause harm to either victims of crime or the general public. Politicians and large sections of the media continue to argue that prisoners should not vote, but are yet to explain adequately why they think this beyond saying that it would cause ‘outrage’. Yet just because someone might take offence or be outraged over an issue doesn’t automatically make them right. Unfortunately, most of the discourse around the issue presents prisoners as though they are a distinct group from the rest of society rather than a part of it.

The objectives of HM Prison Service are stated as “holding prisoners securely”, “reducing the risk of prisoners re-offending” and “providing safe and well-ordered establishments in which we treat prisoners humanely, decently and lawfully”. It is time for the politicians to explain properly how a blanket ban on voting achieves any of these.

Andrew Henley, Post-graduate student in social science with the Open University

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