DISENFRANCHISEMENT OF PRISONERS WITH PARTICULAR REFERENCE TO HIRST –V- THE UNITED KINGDOM (NO 2), ECHR APPLICATION 74025/01
SECTION 1 – INTRODUCTION
Good Morning. I appreciate the irony of participating in a conference on enhancing voter participation and addressing you on the topic of disenfranchisement. However, it is perhaps useful to look at categories of citizens prevented from voting in order to see if some members of those categories can be both entitled and encouraged to vote. I was advocate in the case of Hirst v U.K. and hope to give you a summary of that case and my thoughts on it.
SECTION 2 – THE CASE OF HIRST V U.K.
John Hirst was sent to prison for life for killing his landlady. He pleaded guilty to manslaughter on the ground of diminished responsibility in February 1980, and he was held to have diminished responsibility (in other words not able to form the full intent for murder) on the basis that he had a severe personality disorder.
He was given a minimum term, also known as a tariff, which expired in June 1994. That formed the punitive part of his sentence. He remained in prison afterwards because under the UK legislation someone who is serving a life sentence, even when their tariff has expired, remains in custody until they can satisfy the Parole Board that it is safe to release them. In other words he was being kept in custody, not as a punishment, but to protect the public.
John Hirst wanted to vote in general elections in the UK. He found that the Representation of the People Act 1983, Section 3, prohibits prisoners from voting in parliamentary (or local) elections. That section states at Section 3(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.”
It does not appear that any considerable thought was given to the position of prisoners or indeed to the fact that they were only prohibited from voting while detained in a penal institution at the time the Act was passed.
A little more thought was given to the situation in 2000, when the Representation of the People Act 2000 was considered. At that time England had in force the Human Rights Act 1998 (which allows for direct applicability of the European Convention on Human Rights in England) and consideration was given to whether the new Act (which allowed remand prisoners and unconvicted mental patients to vote but still prohibited convicted prisoners from voting while detained in prison).
A Statement of Compatibility was issued by the government confirming that in their view the 2000 Act was compatible with the Human Rights Act.
The clear view of the government at the time was that it should be part of a convicted prisoner’s punishment that he lose his rights, one of which is the right to vote.
Mr Hirst, having unsuccessfully applied to the English courts for relief, took his case to the European Court of Human Rights. The European Court has a 2-tier system; most cases which go to an oral hearing are heard by a Chamber; under limited circumstances the cases considered most important can be reheard by a Grand Chamber. This case was heard both by a Court Chamber and, the government appealing the decision of the Court Chamber, by the Grand Chamber. A total of 21 judges therefore considered the matter.
We relied largely on Article 3 of Protocol 1 of the Convention.
Article 3 reads as follows:-
“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.”
The question which the Court had to consider was in essence whether a “blanket ban” prohibiting all convicted people in custody and serving a sentence of criminal imprisonment (but not applying to those on remand – i.e. unconvicted prisoners – or those serving a sentence for contempt or those imprisoned for default for, for example, not paying a fine), which was imposed with (arguably) little consideration by the UK Parliament, was lawful under the Convention and its protocol.
The decision of the Court Chamber (seven judges) was unanimous and was handed down on the 30th March 2004. The court decided that there had been a violation of Article 3 of Protocol Number 1 to the European Convention.
The court considered a number of international materials including the following:
The International Covenant on Civil and Political Rights, Article 25 of which states that:-
“Every citizen shall have the right and the opportunity…and without unreasonable restrictions….to vote.”
Article 10 of that Covenant also provides for prisoners to be treated with humanity and with respect for their inherent dignity and for the penitentiary system to comprise, “Treatment of prisoners, the essential aim of which shall be their reform and social rehabilitation.”
Rule 64 of the European Prison Rules states clearly that, “Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, accept as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.”
The court also took into account a Canadian case, Sauvé –v- The Attorney General of Canada (No 2).
The Canada Elections Act 1985 Section 51(E) denied the right to vote to every person imprisoned in a correctional institution serving a sentence of two years or more. The Supreme Court of Canada held that this was unconstitutional as it infringed Articles 1 and 3 of the Canadian Charter of Rights and Freedoms:-
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or other legislative assembly and to be qualified for membership therein.”
The Canadian Court held by a narrow majority of five to four that the government had failed to identify the particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, in particular as the government had failed to establish a rational connection between the denial of the right to vote and its stated objectives.
Having considered the above, and the situation in other countries both parties to the European Convention and others, the conclusion of the court was as follows:-
1. It was prepared to look afresh at the issues arising from an automatic statutory bar on voting imposed on convicted prisoners.
2. It noted the varying position within contracting states, saying that there were 18 countries in which no restrictions were imposed on prisoners’ right to vote, 13 countries where prisoners are not able to vote due either to legal restrictions or practical restrictions (e.g. there was no facility in place to enable them to vote). Between those two extremes, in the other contracting states, loss of voting rights was either limited to specific offences or categories of offences or the court was left with a discretion. The court accepted that the lack of any clear “standard” meant that the margin of appreciation was an important factor – in other words significant latitude should be allowed to each contracting state.
However the Court also maintained that the right to vote for elective representatives was “the indispensable foundation of a democratic system”. The court then referred to the aim expressed by the UK government for its prohibition – the government was relying on two aims, one being to prevent crime and punish offenders and the other to enhance civil responsibility and respect for the rule of law. The Court pointed out that the loss of liberty does not automatically mean the loss of any other fundamental Convention rights and that the loss of the right to vote is not a part of the sentencing process (in that the judge has no say in it). They also referred to the Sauvé case where the majority of the Canadian Supreme Court found no evidence to support the claim that disenfranchisement deterred crime.
As to enhancing civil responsibility and respect for the rule of law the Court found no clear logical link between the loss of vote and the imposition of a prison sentence and indeed suggested that it is arguable that removing the vote runs counter to the rehabilitation of the offender and undermines the authority of the law. However the Court declined to say that the aims expressed by the UK government were not legitimate, taking account of the fact that there were a number of different philosophies and view points.
The Court did hold that depriving convicted prisoners of the right to vote automatically, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence, was a breach of Article 3 of Protocol 1. It pointed out that the effect of the imposition was arbitrary (depending on whether the prisoner happens to be in prison on election day – given that elections in the UK are at least every five years, it would be possible to serve a ten year sentence (since U.K. prisoners only serve half the sentence) and still not miss an election; alternatively it would be possible to serve one day and miss an election). The Court also considered that in the case of prisoners such as Mr Hirst, where they had served that part of their sentence relating to punishment and were only continuing to be detained on grounds of safety, it was hard to understand the argument that removal of the vote was part of a punitive sanction. The court did also not accept the argument of the government that such prisoners could be denied a vote while they remain detained because of their risk to the public. The Court concluded by saying that it could not accept that an absolute bar on voting by any serving prisoner in any circumstances fell within an acceptable margin of appreciation.
Following this unanimous decision the UK government asked for the Grand Chamber to hear the case. The Grand Chamber held by 12 votes to 5 that there had been a violation of Article 3 of Protocol 1 – so the overall “score” was 19 judges to 5 (bear in mind that the UK judge, Sir Nicholas Bratza, sat in both chambers and therefore had two votes).
The decision of the Grand Chamber was handed down on 6th October 2005 (adopted 29th August 2005).
The Grand Chamber accepted that, while there is a basic principle of universal suffrage, there is room for limitations and referred to criteria such as residence. The Court however did point out that any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. The Court considered its earlier case law and noted that this was the first time that they had to consider a general and automatic disenfranchisement of convicted prisoners. The court noted the recommendation of the Venice Commission (the European Commission for Democracy through law) at its planning session in 2002 that while provision may be made for depriving individuals of their right to vote it should only be under four conditions, all of which should apply:-
i. It must be provided for by law;
ii. The proportionality principle must be observed;
iii. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence;
iv. The withdrawal of political rights or finding a mental incapacity may only be imposed by express decision of a court of law.
The fourth principle is perhaps the most interesting as it requires a judicial decision before political rights can be withdrawn. The court noted that:-
“An independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.”
The Grand Chamber did not find that the aims expressed by the government were untenable or incompatible with the right under Article 3 (the aims proposed by the government have been mentioned above – preventing crime and enhancing civic responsibility).
However, the Grand Chamber, in common with the Chamber of the Court, found that the Act was not proportional. The Grand Chamber took into account the fact that it was a blanket ban, that there was no evidence that the UK parliament had ever properly considered the matter and there was no evidence that the UK Divisional Court (which had heard an initial Judicial Review by Mr Hirst), had properly considered the matter either. The Grand Chamber concluded that the blanket ban fell outside any acceptable margin of appreciation. Unfortunately the Court declined to lay down any further guidelines saying that where different states have adopted a number of different ways of dealing with the issue, the Court could only consider whether the particular restriction in a particular case exceeded the margin of appreciation.
Judge Caflisch, who supported the conclusions of the majority, added the view that disenfranchisement was not in harmony with the objectives of preventing crime and punishing offenders; his view was that participation in the democratic process may serve as a first step towards reintegrating offenders into society. He also expressed his view as to the criteria which should apply to any disenfranchisement – the measures should be prescribed by law, a blanket law would not be appropriate but should be restricted to major crimes (as proposed by the Venice Commission), disenfranchisement should be decided by the Judge not the Executive and must remain confined to the punitive part of the sentence and not extended beyond it.
Dissenting opinions were filed by six judges, effectively holding that a blanket ban on prisoners voting falls within the margin of appreciation. The pointed to four countries who disenfranchised prisoners on the basis of their recently adopted constitutions (Russia, Armenia, Hungary and Georgia) and another four countries where there were restrictions on prisoners’ rights to vote based on their constitutions (Luxembourg, Austria, Turkey and Malta) – as the judges pointed out the decision of the Court will create legislative problems not only for states with a general ban as exists in the UK. They regretted that the case gave states little or no guidance as to what would in fact be compatible with the Convention.
SECTION 3
THE RESPONSE OF THE UNITED KINGDOM
The Committee of Ministers receives final judgements of the court and monitors the execution of those judgements. The Committee can take measures to help with the execution of the judgments such as adopting interim resolutions and setting their provisional calendar for the reforms to be undertaken or ultimately to insist that the respondent takes the measures needed to comply with the judgment. It is a requirement for members of the European Convention of Human Rights that they abide by the judgements of the court. The Committee can refer back to the Court a case where the Government has failed to comply with a judgment against them (Rule 11 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements). Ultimately it is possible to use sanctions provided for by the Statute of the Council of Europe.
Having said this, it is difficult to imagine circumstances under which a state would be “expelled” as a member state of the Convention.
With regards to Mr Hirst himself, he was released on licence between the decision of the Chamber and the Grand Chamber (and was in fact able to come to the hearing before the Grand Chamber).
With regards to general measures, at the time of the judgment there were, the government said, about 48,000 convicted and detained prisoners in England and Wales affected by the legislation. The government’s own figure, given in its latest consultation paper, is that about 63,600 prisoners are affected as at February 2009. The next general election in England (the first since the judgment of the Grand Chamber) must be held by June 2010 at the latest. Latest figures indicate that there are currently, as at 20th November, 85,663 prisoners in England and Wales. After deducting remand prisoners and those too young to vote there are potentially 82000 unlawfully deprived of the vote in England and Wales alone. Some of these are overseas nationals so the true figure is probably 65,000 – 70,000
In April 2006 the UK authorities presented an action plan for the execution of the case. They committed to undertaking a consultation to determine the measures required to implement the judgement. A revised action plan was then produced with a revised timetable by which draft legislation was to be introduced by May 2008. That plan envisaged a two stage consultation. The first stage consultation paper was published on the 1st December 2006. The government expressed its opposition to allowing all prisoners to vote and discussed various ways of restricting the vote. The first stage of consultation ended on 7th March 2007. The second stage consultation paper was not published for over a year and a half – 8th April 2009. It refers to the responses of the first stage consultation and consults on proposals to enfranchise prisoners sentenced to four years or less. That consultation closed on the 29th September 2009. Following that consultation the UK authorities said they would consider the next steps to implement the judgement through legislation.
Interestingly, the response to the first consultation was that 47% favoured full enfranchisement of prisoners and only 4 out of 88 respondents favoured a system of enfranchisement based on sentence length.
The United Kingdom Parliament’s Joint Committee of Human Rights in its annual report in 2008 criticised the delay in implementing the case. The Committee said that any further delay may result in the next election taking place in a way that fails to comply with the Convention.
In fact the Secretary of State for Justice in January 2009 stated that Members of Parliament were not willing to accept the judgement of the European Court (this was referred to in the report of the Joint Committee). The government has, despite suggesting that it would have a proper debate, ruled out from the start a full enfranchisement. Indeed it left in as an option retaining the blanket ban even though this has been ruled unlawful. The government did however accept that retaining the total ban was outside the margin of appreciation and was not “an actual proposal”. Submissions have been made to the Committee of Ministers, after the second stage consultation, from Mr Hirst himself, the writer on his behalf, the Howard League for Penal Reform, UNLOCK, Penal Reform International, the National Council of Civil Liberties and the Prison Reform Trust. All those submissions state that the United Kingdom has not yet taken any concrete steps to implement the judgement and all stress the concern of imminent similar violations if legislation is not passed before the 2010 general elections. Indeed the Secretary of State for Justice, Jack Straw, has been reported as stating that no legislation will be passed before the next general election. The Deputies of the Council of Ministers in their meeting in June 2009 expressed concern about the significant delay and recognised the pressing need to take concrete steps to implement the judgement, noted that the second stage of the consultation was to close in September 2009 and stressed the need to take the procedural steps following consultation without delay, decided to resume consideration of the case at the latest at their December 2009 meeting.
On the 8th October 2009 they received information concerning general measures – since then the Queen’s Speech (which is a speech made by the Queen on behalf of the UK government saying what legislation the Government hopes to pass in the forthcoming parliament – in this case the last before the next election) makes no mention whatsoever of prisoners’ voting rights.
The Government’s latest thinking is set out in the Consultation Document CP 6/09, the second consultation document on Voting Rights of Convicted Prisoners Detained within the United Kingdom. Their view is that no prisoner sentenced to 4 years or more should be allowed to vote; they set out various options for other prisoners including disenfranchising those sentenced to 1,2 or more than 2 years. They also said that they do not intend to allow life sentence prisoners whose tariff has expired to vote – so Mr Hirst, if still in prison, would still not be able to vote.
THE IMPLICATIONS FOR OTHER COUNTRIES
This has been referred to above. There are a number of countries, members of the Council of Europe and signatories to the European Convention on Human Rights, whose arrangements may fall foul of the ruling in the case of Hirst. Some of those countries may have to re-examine their primary legislation; other countries may need to re-examine constitutional legislation.
While it is not perhaps common for a state party to the European Convention to examine its own statutory provisions if it has not been party to a particular case, it is something that good governance requires should follow.
It also presents States with an opportunity to re-examine their attitude towards both voters on the one hand and prisoners on the other and perhaps an opportunity to re-examine the framework for enfranchising its citizens.
The government of Hong Kong in February 2009 (following a judicial review of the voting arrangements for prisoners – Hung v Secretary of State for Justice and Electoral Affairs Commission) issued a consultation document inviting views on removing the existing disqualification of prisoners from applying to register as electors – it suggested three options – one to remove it entirely, one to disqualify prisoners form voting if they are serving a sentence of ten years or more and one to disqualify prisoners from voting if they are serving a sentence of ten years or more but enabling them to resume the right to vote in the last few years of their imprisonment.
Following a period of consultation (lasting six weeks), the Hong Kong government decided to remove the existing disqualification of prisoners from being registered as electors and from voting.
SECTION 4 - DISENFRANCHISEMENT ISSUES NOT COVERED BY HIRST V U.K.
In the U.K., since the Representation of the People Act 2000, remand prisoners (who were prior to that qualified to vote but who in practice would have found it impossible to do so) were given a practical entitlement to vote; those hospitalised under Mental Health legislation following committal of a Criminal offence (even without a criminal conviction) remain disenfranchised. By contrast, the Act made arrangements to allow civil detainees under the Mental Health legislation to vote by giving their hospital address as the registered address for voting. A mental health condition is not itself considered a legal incapacity to vote. The current guidance to electoral commissioners states that only the following lack legal capacity to vote:
-certain members of the House of Lords
-detained convicted persons
-those found guilty of certain corrupt or illegal practices (pertaining to elections)
-offenders detained in a mental hospital.
The guidance specifically states that neither a lack of mental capacity nor a mental health condition leads to a legal incapacity to vote
Compare the situation of non-resident British citizens; they lose their right to vote in UK elections 15 years after their last registration as an elector, despite the fact that they may have strong links with the country and may be affected by, for instance, social security legislation, reciprocal arrangements, and taxation and may still be a British passport holder. This was raised in Hilbe v Lichtenstein in 1999 Mr Hilbe was a Lichtenstein national living in Switzerland. In order to vote in Lichtenstein he was required to have his ordinary abode there one month before the relevant election. The Court upheld the restriction as valid commenting that the reasons for it were:
- A non-resident is less concerned with the day to day problems of his country and has less knowledge of them;
- It is impracticable for parliamentary candidate to present different electoral issues to citizens abroad;
- Non-residents have no influence on the selection of candidates or the formulation of their electoral programmes;
- The close connection between the right to vote and being affected by the outcome;
- The legitimate concern the legislature may have to limit the influence of citizens living abroad on issues mainly affecting its residents.
We are 10 years on from that judgment yet how things have changed– we are able via the internet to be intimately involved in and influence the daily affairs of people on the other side of the world; indeed there may be some among us who followed the last U.S. Election more closely than we did our own! The time may have come to re-examine the position of British Nationals who have chosen to relocate to countries in the EU of which they are not citizens
SECTION 5 - CONCLUSION
Opinions vary over the correct approach to the voting rights of prisoners.
There is undoubtedly an argument that allowing prisoners to vote increases their stake in society and increases the chances of reintegrating a prisoner, on release, into society.
It is inevitable that most people currently serving sentences of imprisonment, whether in the UK or elsewhere, are likely to be released and it is in the interests of society that, when those prisoners are released, the chances of their being law abiding and responsible members of society are maximised.
However, it is equally arguable that there is no point giving prisoners the right to vote without also taking steps to ensure that they understand the nature of the responsibility that comes with that right. There is no reason why, for instance, civics classes can not be presented to prisoners in which their responsibilities as citizens could be discussed.
It also cannot be denied that there is a valid school of thought which argues that it is legitimate, as part of a punitive exercise, to disenfranchise a prisoner. This was considered most recently in Hong Kong. It does seem that there is a trend embracing many countries of increasing the access of prisoners to voting rights.
The question which faces the UK, and no doubt other countries, is firstly the extent to which prisoners should be enfranchised and secondly how this enfranchisement can be used to maximise the reintegration of prisoners into society.
Elkan Abrahamson
