Notes on the question of prisoners’ right to vote
In 2004, the Chamber of the European Court of Human Rights, recorded in Hirst v UK (No 2) (2004) 38 EHRR 40, ruled unanimously that there had been a violation of Hirst’s human right under Article 3 of the First Protocol. The UK lodged an appeal to the Grand Chamber and on 6 October 2005 it found in favour of Hirst by a majority of twelve to five. The Court found that the restriction of prisoners’ voting rights violated Protocol 1, Article 3 of the European Convention on Human Rights…
Worst criminals will not get vote in jail despite European court ruling (Alan Travis, home affairs editor, The Guardian, Friday 7 October 2005): http://www.guardian.co.uk/uk/2005/oct/07/constitution.ukcrime
Penal reformers, including the former Conservative home secretary Lord Hurd, celebrated the victory, saying it finally scrapped a 135-year-old legal relic from the 1870 Forfeiture Act, which introduced the Victorian punishment of “civic death.”
The Strasbourg judges ruled that voting was a right and not a privilege, and awarded Mr Hirst £8,000 in costs and expenses. But the lord chancellor, Lord Falconer, insisted that the European judges had not said all prisoners must now be given the right to vote. The judges had ruled that the government was wrong not to have considered fully the legal basis of the ban, and whether it applied regardless of the gravity of the offence.”We need to look and see whether there are any categories that should be given the right to vote. This is not a wholesale change.” …
The shadow attorney general, Dominic Grieve, said that giving prisoners the vote would be ludicrous. “If convicted rapists and murderers are given the vote, it will bring the law into disrepute and many people will see it as making a mockery of justice.” But Mark Oaten of the Liberal Democrats welcomed the decision.
The Prison Reform Trust and Unlock, the ex-prisoners’ organisation which formed the Barred From Voting campaign, said the ruling confirmed that people were sent to prison to lose their liberty, not their citizenship.
European Convention on Human Rights, PROTOCOL 1, ARTICLE 3:
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.
Extracts from judgment of the Grand Chamber of the European Court of Human Rights, 6 October 2005
21. Section 3 of the [UK] Representation of the People Act 1983 (“the 1983 Act”) 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.”
22. 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).
23. The disqualification does not apply to persons imprisoned for contempt of court … or to those imprisoned only for default in, for example, paying a fine …
24. … the Representation of the People Act 2000 (“the 2000 Act”), which allowed remand prisoners and unconvicted mental patients to vote …
2. the Court has further held that any restriction [on the right to vote] must pursue a legitimate aim and that the means employed must not be disproportionate.
…unlike the Chamber [the lower European Court, which had found unanimously against HMG], which left the question open, the majority accept that the restriction in question served legitimate aims…
…the Contracting States have a wide margin of appreciation in this sphere…
6. … some eighteen countries out of the forty-five Contracting States have no restrictions on prisoners’ right to vote … On the other hand, in some thirteen States prisoners are not able to vote either because of a ban in their legislation or de facto because appropriate arrangements have not been made. It is essential to note that in at least four of those States the disenfranchisement has its basis in a recently adopted Constitution (Russia, Armenia, Hungary and Georgia). In at least thirteen other countries more or less far-reaching restrictions on prisoners’ right to vote are prescribed in domestic legislation, and in four of those States the restrictions have a constitutional basis (Luxembourg, Austria, Turkey and Malta).
81. … Not only are exceptions made for persons committed to prison for contempt of court or for default in paying fines [and prisoners on remand], but unlike the position in some countries, the legal incapacity to vote is removed as soon as the person ceases to be detained. However, the fact remains that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote. Even according to the Government’s own figures, the number of such States does not exceed thirteen.
74. …The [UK] Government have submitted that the measure pursues the aim of preventing crime by sanctioning the conduct of convicted prisoners and also of enhancing civic responsibility and respect for the rule of law. The Court notes that, at the time of the passage of the latest legislation, the Government stated that the aim of the bar on convicted prisoners was to confer an additional punishment. This was also the position espoused by the Secretary of State in the domestic proceedings brought by the applicant. While the primary emphasis at the domestic level may have been the idea of punishment, it may nevertheless be considered as implied in the references to the forfeiting of rights that the measure is meant to act as an incentive for citizen-like conduct.
75. Although rejecting the notion that imprisonment after conviction involves the forfeiture of rights beyond the right to liberty, and especially the assertion that voting is a privilege not a right … the Court accepts that section 3 may be regarded as pursuing the aims identified by the Government. It observes that, in its judgment, the Chamber expressed reservations as to the validity of these aims, citing the majority opinion of the Canadian Supreme Court* … However, whatever doubt there may be as to the efficacy of achieving these aims through a bar on voting, the Court finds no reason in the circumstances of this application to exclude these aims as untenable or incompatible per se with the right guaranteed under Article 3 of Protocol No. 1.
…ban only [sic] affected some 48,000 prisoners… [nb. 2005 figure; much greater number now, 2012.]
…successive [UK] governments had taken the view that convicted prisoners had lost there was no place under the convention…
82. … although the situation was somewhat improved by the 2000 Act which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.
69. In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or conditions contrary to Article 3 of the Convention … Any restrictions on these other rights must be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment ….
70. There is no question, therefore, that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.
71. … The severe measure of disenfranchisement must not, however, be resorted to lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. The Court notes in this regard the recommendation of the Venice Commission that the withdrawal of political rights should only be carried out by express judicial decision (see paragraph 32 above). As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.
74. … The Government have submitted that the measure pursues the aim of preventing crime by sanctioning the conduct of convicted prisoners and also of enhancing civic responsibility and respect for the rule of law. The Court notes that, at the time of the passage of the latest legislation, the Government stated that the aim of the bar on convicted prisoners was to confer an additional punishment. This was also the position espoused by the Secretary of State in the domestic proceedings brought by the applicant. While the primary emphasis at the domestic level may have been the idea of punishment, it may nevertheless be considered as implied in the references to the forfeiting of rights that the measure is meant to act as an incentive for citizen-like conduct.
75. Although rejecting the notion that imprisonment after conviction involves the forfeiture of rights beyond the right to liberty, and especially the assertion that voting is a privilege not a right (see paragraph 59 above), the Court accepts that section 3 may be regarded as pursuing the aims identified by the Government. It observes that, in its judgment, the Chamber expressed reservations as to the validity of these aims, citing the majority opinion of the Canadian Supreme Court*. However, whatever doubt there may be as to the efficacy of achieving these aims through a bar on voting, the Court finds no reason in the circumstances of this application to exclude these aims as untenable or incompatible per se with the right guaranteed under Article 3 of Protocol No. 1.
*36 [Canadian Supreme Court] With regard to the second objective of imposing appropriate punishment, it was considered that the Government had offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of State punishment. Nor could it be regarded as a legitimate form of punishment as it was arbitrary – it was not tailored to the acts and circumstances of the individual offender and bore little relation to the offender’s particular crime – and did not serve a valid criminal-law purpose, as neither the record nor common sense supported the claim that disenfranchisement deterred crime or rehabilitated criminals.
Compensation and costs: 98. … it increases the award for legal costs and expenses to a total of 23,000 euros (EUR), inclusive of VAT. For the applicant’s own out of pocket expenses, which are largely unitemised, it awards EUR 200. … [5(b) of findings:] … from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. As regards non-pecuniary damage, the Court notes that it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case.
Five of the 17 judges filed a dissenting judgement: JUDGES WILDHABER, COSTA, LORENZEN, KOVLER AND JEBENS. [The British judge voted with the majority.]
Additional dissenting opinion of Judge Costa: … It is perfectly conceivable, for example, that a person who has been convicted of electoral fraud, of exceeding the maximum permitted amount of electoral expenditure or even of corruption should be deprived for a time of his or her rights to vote and to stand for election. The reason for this is that there exists a logical and perhaps even a natural connection between the impugned act and the aim of the penalty (which, though ancillary, is important) that serves as punishment for such acts and as a deterrent to others. The same does not hold true, at least not in any obvious way, of a ban on voting and/or standing for election that is imposed for any offence that leads to a prison sentence. …
PS: Please also see related blog post at http://www.barder.com/3849.
London, 27 November 2012