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Jersey & Guernsey Law Review – February 2014
HUSTINGS IN HMP LA MOYE?
Steven Meiklejohn
This article discusses the current battle between the UK on the one
hand and the European Court of Human Rights (“the ECtHR”) and the
Council of Europe on the other, regarding the disenfranchisement of
UK prisoners. The focus then shifts to Jersey and explores the local
dimension. The issue has been highly contentious in the UK but this
article is not concerned with the political arguments for and against
allowing prisoners the right to vote, but instead with the legal position
and, in particular, the position as regards the European Convention on
Human Rights (“the ECHR”).
The statutory position in the UK and in Jersey
1 Section 3 of the Representation of the People Act 1983 (“ the UK
Act”) prevents a convicted prisoner from exercising his or her vote in
parliamentary elections or local government elections during the time
that he or she is detained in a prison or other penal institution.1 This
exclusion does not extend to those detained for default in complying
with sentence or in contempt of court, and prisoners on remand are
entitled to vote pending trial.
2 Article 4 of the Public Elections (Jersey) Law 2002 (“the Public
Elections Law”) is drafted in almost identical terms and
disenfranchises convicted prisoners (other than those detained for
default in complying with sentence or for contempt of court) in Jersey
from voting in a “public election”2 during the time of imprisonment.
1
By virtue of other statutes, prisoners are unable to vote in European
Parliament elections (see European Parliamentary Elections Act 2002, s 8) or,
if relevant, elections for their devolved parliament (see Scotland Act 1998,
s 11; Government of Wales Act 2006, s 12).
2
“Public election” is defined in art 1 of the Public Elections (Jersey) Law
2002 to mean an election of a Senator, Deputy or Connétable (this definition
also includes elections for Centeniers or Procureurs du Bien Public but such
elections would not fall within elections for the “legislature” for the purposes
of A3P1).
The position in the other Crown Dependencies
Guernsey
3 Jersey’s sister Bailiwick introduced full enfranchisement in 1996.3
Prisoners at Les Nicolles vote by post, or in person if the Lieutenant
Governor permits it. A prisoner in Guernsey votes in the district where
he or she is inscribed on the electoral roll, i.e. where he or she was
ordinarily resident prior to incarceration.
4 A delegation of the Sub-Committee on Public Elections visited
Guernsey in 2013.4
Isle of Man
5 There is also, in principle, full enfranchisement in the Isle of Man. 5 A
person has to be registered as an elector for a constituency before he
can vote and every person who is so registered is entitled to vote.
6 It is understood that prisoners in the Isle of Man may choose to
register either at their home address or at the address of the prison.
Prisoners cast their vote using the absent voter procedure. A prison
officer may be appointed as certifying officer for as many
constituencies as necessary to collect all the votes and deliver them to
the appropriate Returning Officer.
The position elsewhere in the Contracting States of the Council
of Europe
7 The UK and Jersey are in a minority within the Council of Europe in
having an almost complete ban on prisoner voting. Other members of
this minority include Bulgaria, Estonia, Georgia, Hungary and
Liechtenstein.
8 On the other hand, there are several Council of Europe states
where all prisoners may vote, such as Ireland, the Czech Republic and
Spain. Other larger European states, such as France, Italy and
Germany, along with the majority of nations which have ratified the
ECHR, allow prisoner voting but subject to certain limitations. The
limitations across these nations are not identical, thus creating a
mosaic of approaches within the Council of Europe which reflects the
margin of appreciation afforded to States under the 1st Protocol to the
3
Reform (Guernsey) Law 1948, ss 27 and 27A, introduced in 1996 by the
Reform (Amendment) (Guernsey) Law 1996.
4
P.100/2013.
5
The Isle of Man’s Representation of the People Act 1995, s 24.
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ECHR, art 3. Examples of the different approaches and limitations will
be apparent below.
Article 3 of the First Protocol to the ECHR (“A3P1”)
9 A3P1 provides 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.”
10 Although this provision appears to place a duty on government, it
has been held by the ECtHR that A3P1 self evidently provides citizens
with the right to vote in the elections which decide who is elected to the
legislature.6
Hirst v UK
11 In Hirst v UK, the ECtHR ruled, at both Chamber and Grand
Chamber level, that s 3 of the UK Act was incompatible with A3P1.7
12 The ECtHR accepted the UK’s argument that preventing crime,
punishing offenders and promoting civic responsibility were legitimate
aims justifying the limitation of a prisoner’s A3P1 rights. However, by
imposing a general, automatic and indiscriminate “blanket ban” on all
convicted prisoners,8 the UK had acted disproportionately and had
exceeded the margin of appreciation afforded for states in interfering
with a qualified right. Furthermore, the court noted that there had not
been any “substantive debate” by the House of Commons on the issue
in the light of contemporary developments such as the introduction of
the Human Rights Act 1998. The court did not specify any particular
system or provide guidance as to what restrictions would be
considered compatible with A3P1. Contracting states were said to
enjoy a wide margin of appreciation in this area and therefore it was
for the UK to bring forward proposals to amend the blanket ban and
achieve compliance with A3P1.
13 Successive UK governments have stalled on this issue. The
Labour government put the issue out to consultation in 2006 and
6
The ECtHR has confirmed this in cases such as Mathieu-Mohin & Clerfayt
v Belgium (1988), 10 EHRR 1 and Matthews v UK (1999), 28 EHRR 361.
7
Hirst v UK (2004), 38 EHRR 40 and Hirst v UK (No 2) (2006), 42 EHRR
41.
8
It is of course not strictly a blanket ban given the exceptions mentioned in
para 4.
2009,9 and the Coalition government received several warnings from
the Council of Europe and ECtHR to progress the issue, before
eventually introducing the Voting Eligibility (Prisoners) Bill (“the draft
UK Bill”)10 in November 2012. The Coalition had in fact announced
proposals to introduce voting for some prisoners in 201011 but this led
to a backbench motion being introduced which supported retaining the
status quo and the motion received overwhelming support (234 in
favour, 22 against) in February 2011.12 Of course, this was only a
backbench motion which was not binding on Parliament, and less than
half of all MPs took part in the vote (frontbench MPs on both sides did
not vote). However, it provides an indication of the feeling in the House
of Commons and this overwhelming majority in favour of maintaining
the current ban would most likely be replicated if the issue were to be
subjected to a vote by the full House.
14 The draft UK Bill will be discussed in further detail below but it is
necessary at this point to discuss two significant ECtHR decisions
subsequent to Hirst.
Frodl v Austria
15 In 2010, the ECtHR (Chamber) handed down judgment in Frodl v
Austria.13 By virtue of the relevant provisions of the Austrian electoral
legislation, a prisoner serving more than one year for an offence
committed with intent was disenfranchised. The ECtHR ruled that
linking disenfranchisement to a short length of sentence was not
compatible with A3P1. The court said that—
“Disenfranchisement could only be envisaged for a relatively
narrowly-defined group of offenders serving a lengthy term of
imprisonment; there had to be a discernible and sufficient link
between the offence committed and issues relating to elections
and democratic institutions . . .” 14
9
http://webarchive.nationalarchives.gov.uk/20111013033132/ http://www.
justice.gov.uk/consultations/consultation-080409.htm
10
http://www.justice.gov.uk/downloads/legislation/bills-acts/voting-eligibilit
y-prisoners/voting-eligibility-prisoners-command-paper.pdf
11
http://www.bbc.co.uk/news/uk-11671164; http://www.cabinetoffice.gov.
uk/news/government-approach-prisoner-voting-rights; http://www.public at
ions.parliament.uk/pa/cm201011/cmhansrd/cm101220/wmstext/101220m000
1.htm
12
http://www.theyworkforyou.com/debates/?id=2011-02-10b.493.1
13
Frodl v Austria (2011), 52 EHRR 5.
14
Para H4 of Held Note, ibid.
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16 The ECtHR was therefore of the opinion that the removal of the
right to vote should be limited to cases where the conviction relates to
an offence linked to elections and democracy (such as electoral fraud
or misuse of office) and where the prisoner is serving a “lengthy
sentence”. It is not clear what is considered to be a lengthy sentence
but obviously, one year or less did not qualify. Furthermore, the court
continued that disenfranchisement “should be imposed by the decision
of a judge following judicial proceedings”.15
17 The decision in Frodl therefore went significantly further than Hirst,
as the latter simply said that disenfranchising all prisoners
automatically without discrimination was disproportionate. However,
the ECtHR in Scoppola16 has somewhat retreated from Frodl,
particularly as regards the necessity for judicial intervention.
Scoppola v Italy
18 In Scoppola v Italy, the applicant was serving a 30-year sentence17
for, inter alia, murder. He had been sentenced in 2002 and given a
subsequent lifetime ban from public office, ancillary to which was the
permanent forfeiture of his right to vote. Under Italian law, persons
sentenced to five or more years, as in Scoppola’s case, or those
convicted of specific crimes such as the embezzlement of public
funds, obstructing the course of justice and abuse of public office, are
banned from public office for life, and are ipso facto disenfranchised
for life.
19 The Grand Chamber of the ECtHR was asked to consider the
decision of the Chamber below, the latter having upheld Scoppola’s
claim that his A3P1 rights had been violated.
20 The ECtHR found that there was no violation and Italy had acted
within the wide margin of appreciation in limiting the right to vote. It
reiterated the rule in Hirst that a voting ban which affects a group
generally, automatically and indiscriminately, in the manner the UK Act
does, is not compatible with A3P1. However, in Italy, those sentenced
to less than three years in prison are still entitled to vote and those
sentenced between three and five years lose this right for five years.
Prisoners sentenced to more than five years lose their political rights,
15
Ibid.
Scoppola v Italy (No 3) (2013), 56 EHRR 19.
17
Reduced from a life sentence following Scoppola v Italy (No 2), Grand
Chamber No 10249/03.
16
including the right to vote, for life,18 although three years after the
discharge of his or her sentence a prisoner is entitled to apply for
rehabilitation “conditional on a consistent and genuine display of good
conduct and [he or she] extinguishes any outstanding ancillary
penalty”19 which could lead to a prisoner regaining his or her political
rights and therefore the right to vote. This system was, in the ECtHR’s
opinion, not an excessively rigid one.
21 Scoppola represented a slight retreat from Frodl, pointing out that
the requirement for judicial intervention (as required by Frodl) was a
broad interpretation of Hirst which made no explicit mention of the
intervention of a judge. The court in Scoppola summarised the position
on this as follows—
“While the intervention of a judge is in principle likely to
guarantee the proportionality of restrictions on prisoners’ voting
rights, such restrictions will not necessarily be automatic, general
and indiscriminate simply because they were not ordered by a
judge. Indeed, the circumstances in which the right to vote is
forfeited may be detailed in the law, making its application
conditional on such factors as the nature or the gravity of the
offence committed.”20
22 Scoppola also reiterated the wide margin of appreciation that a
State has in deciding what restrictions should apply including linking
the loss of the right to vote to the length of sentence. The ECtHR did
not however give any clarity on whether there is a particular length of
sentence which justifies an automatic ban. It is worth noting the
dissenting opinion in Scoppola21 which asserts that “any kind of
automatic disenfranchisement as a result of criminal conviction,
without any assessment of the individual case, should be avoided.”
Clearly, this is an issue which divides the judges in Strasbourg and it is
fair to say that there has been some “shocking inconsistency”22 in the
judgments. This makes it difficult to reach a conclusion on what
measures will be regarded as compatible with A3P1.
18
Note that the UK does not (nor does Jersey) impose any post-release voting
ban.
19
Ibid, para 190, 16.
20
Ibid, para 99, 16.
21
Annex 16 ibid.
22
Gardner: http://www.headoflegal.com/2011/01/18/prisoners-votes-anoth erawkward-ruling-from-the-european-court/
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23 Following several deadlines imposed on the UK by the Council of
Europe and the ECtHR in Green & MT,23 a final six month deadline for
the UK’s compliance was set in Scoppola. This deadline expired on 22
November 2012, the same day that the Secretary of State for Justice
presented the draft UK Bill.
The draft UK Bill
24 HM Government’s view on this issue has not changed
notwithstanding the transition in 2010 from a Labour Government to a
Conservative-led Coalition Government. The Prime Minister
emphasised his opposition in October 2012—
“I do not want prisoners to have the vote, and they should not get
the vote—I am very clear about that. If it helps to have another
vote in Parliament on another resolution to make it absolutely
clear and help put the legal position beyond doubt, I am happy to
do that. But no one should be in any doubt: prisoners are not
getting the vote under this Government.”24
25 The views of the Government are shared by the general public,
with a YouGov poll in November 2012 resulting in 63% of the
respondents replying that prisoners should not get the vote.25
29 The draft UK Bill was nonetheless presented on 22 November
201226 and contained three options—
(1)
a voting ban for prisoners sentenced to four years or more;
(2)
a voting ban for prisoners sentenced to six months or more; or
(3)
no change, i.e. a voting ban for all prisoners.
27 The Justice Secretary announced that the draft UK Bill would be
scrutinised and considered by a Joint Parliamentary Committee and
that once the Committee has published its findings, the Government
would “reflect.” The Committee, which first met in June 2013, was
required to report on the proposals by 31 October 2013 but at the time
of writing no such report has been released. In any event it will
probably not be until at least mid-2014 when the Government has had
23
Greens & MT v UK (2011), 53 EHRR 21.
HC Deb 24 October, vol 551, cols 922–923
25
http://yougov.co.uk/news/2012/11/25/public-says-no-prison-votes/
26
Draft UK Bill: http://www.justice.gov.uk/downloads/legislation/billsacts/voting-eligibility-prisoners/voting-eligibility-prisoners-command-paper.
pdf (Ministerial Statement and questions can be found at HC Deb 22
November, vol 553, cols 745–762).
24
a chance to reflect before something comes back to the Commons for
a vote. Therefore, the issue has effectively been kicked into the long
grass and the Government has no doubt taken a lead from its
predecessor in delaying this issue for as long as possible in the hope it
can become someone else’s problem.
28 Considering the draft UK Bill, Option 1 is likely to be compatible
with A3P1 given that the ECtHR approved Italy’s three year threshold
in Scoppola. In the Explanatory Notes to the draft UK Bill, the MoJ
note that 38% of prisoners in England and Wales27 are serving less
than four year sentences so a significant number of prisoners would
likely be enfranchised by this option and only those serving lengthy
sentences of four years or more would continue to be banned.
29 Option 2, i.e. setting the threshold at six months, could be
compatible with A3P1 although it is difficult to conclude this given the
inconsistent approach of the ECtHR. Frodl is curiously omitted from
any mention in the Explanatory Notes attached to the draft UK Bill. Of
course, the UK had no direct involvement with the case and Scoppola
(a Grand Chamber judgment) retreated from Frodl slightly,
emphasising the wide margin of appreciation afforded to states.
However, the automatic disenfranchisement of prisoners serving
sentences such as six months or one year is likely to be at least on the
margins of compatibility. Scoppola endorsed the Italian system where
only those serious offences attracting a sentence of three years or
more (or offences which are specifically deserving of loss of political
rights) result in disenfranchisement, thus leaving “a large number of
convicted prisoners [who] are not deprived of the right to vote in
parliamentary elections.”28 Given that only 6% of prisoners in England
and Wales (as of June 2012) were serving sentences of six months or
less29 (and presuming that this percentage is not significantly altered if
Scotland and Northern Ireland are included), then simply extending the
franchise to this small group of prisoners might not adhere to the
approach favoured by the ECtHR and is probably incompatible. One
argument often advanced by proponents of prisoner voting is that a
person sentenced to a short period of imprisonment may be
disenfranchised for the life of a government if the period of
incarceration (and therefore disenfranchisement) happens to coincide
27
The draft UK Bill is currently designed only for England and Wales and
the Justice Secretary is to consult with his counterparts in Scotland and
Northern Ireland as any changes, being a reserved matter, would apply to the
UK in its entirety.
28
Scoppola v Italy (No 3) (2013), 56 EHRR 19, para 108.
29
Draft UK Bill, para 87.
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with a general election. Lord Sumption however highlights in Chester
and McGeogh that this is no more significant than the fact that a period
of incarceration may coincide with “a special anniversary, a long
anticipated holiday or the only period of fine weather all summer.”30
30 Option 3 would clearly not be compatible with A3P1 given the
ECtHR jurisprudence. In the draft UK Bill, the Justice Secretary
confirms that a statement of ECHR compatibility cannot be made for
this option.31 The Council of Europe’s Committee of Ministers, reacting
to the draft UK Bill, made it clear on 10 December 2012 that voting for
Option 3 and continuing with the current blanket ban would breach the
UK’s obligation under ECHR, art 46 to enforce the ECtHR’s
judgments. The Attorney General (England and Wales) recently
warned that refusing to comply with the ECHR’s rulings risks a “degree
of anarchy in the international order that [the UK is] trying to
promote.”32 In other words, the ECHR would become weakened by
such an unprecedented move, and this was also emphasised by the
Secretary General of the Council of Europe, Thorbjørn Jagland. Mr
Jagland emphasised to the Parliamentary Committee that the UK “has
always been seen as the leading nation on human rights” and “the best
pupil in the class.”33 Therefore, if the UK continues to disregard its
ECHR obligations, then this will undoubtedly undermine efforts to get
the “bad pupils” in the class to meet their obligations.
31 The Shadow Justice Secretary confirmed that Labour continues to
agree with HM Government on this issue34 and therefore it is virtually
certain that MPs, if and when they have the opportunity, will vote
overwhelmingly in favour of option 3.
32 The Justice Secretary has reiterated the view that parliamentary
sovereignty means “Parliament has, in clear case law, the right to say
to the [ECtHR]: ‘We do not agree with you’”.35 However, whilst there
have been difficulties and delays with some countries implementing
30
Chester v Secy of State for Justice and McGeogh v Lord President of the
Council [2013] UKSC 63, para 115.
31
See p 28 of the draft UK Bill. Note that as this is a draft bill, a
compatibility statement this is not strictly necessary but will be if and when
the Bill is final and introduced to the Commons for its First Reading, pursuant
to s 28 of the Human Rights Act 1998.
32
Evidence given to Parliamentary Committee, 6 November http://www.
parliament.uk/business/committees/committees-a-z/joint-select/draft-votingeligibility-prisoners-bill/written-evidence/
33
Ibid.
34
HC Deb 22 November, vol 553, cols 746–748.
35
http://www.bbc.co.uk/news/uk-politics-20115675
and fully executing the decisions of the ECtHR, the only precedent of a
country “saying no” was Turkey, regarding compensation for seizure of
property by Turkish troops in Northern Cyprus, and this was only
temporary as Turkey eventually changed its mind and complied.36 The
UK Government’s approach therefore seems to be that it will address
the concern in Hirst that Parliament had not debated the issue and
“weighed the competing interests.” HM Government will then probably
take the result in favour of preserving the status quo back to the CoE
and ECtHR and make further representations. However, as Lord
Sumption pointed out in the Chester and McGeogh cases, “there is no
realistic prospect that further dialogue with Strasbourg will produce a
change of heart”.37
Chester and McGeogh
33 In October 2013, the UK Supreme Court handed down judgment in
appeals from two convicted murderers, Peter Chester and George
McGeogh, against refusals to enter them on their respective electoral
rolls. McGeogh was claiming that, pursuant to the EU Charter on
Fundamental Rights, he had a right to vote in local elections and
European Parliament Elections. Chester claimed a breach of both
A3P1 and EU law, regarding the blanket ban against him voting in UK
Parliamentary and European Parliamentary elections.
34 The Supreme Court unanimously dismissed the appeals on both
EU and A3P1 grounds. The court declined to make any further
declaration of ECHR incompatibility because, in Lord Mance’s words,
“there is in these circumstances no point in making any further
declaration of incompatibility”.38
35 Regarding the claims under EU Law, the Supreme Court held that
EU Law (which in any event would not apply to parliamentary
elections; only European Parliament or municipal/local elections) does
not incorporate any right to vote paralleling that recognised by the
ECHR, or any other individual right to vote which is engaged or upon
which if it were engaged the appellants would be able to rely. By
reaching this decision, and by determining that a referral to the Court
of Justice of the European Union was not necessary, the Supreme
Court has effectively closed off another potential route for
disenfranchised prisoners to sue the UK Government. 39
36
Loizidou v Turkey (1997), 23 EHRR 513 and (1998), 26 EHRR CD5.
Ibid, para 137, 30.
38
Ibid, para 39, 30.
39
Note also the recent ECtHR admissibility decisions in McLean & Cole v
UK, 2013 Application Nos. 12626/13 and 2522/12: applications dismissed
37
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Consequences of defying the ECtHR
36 Although parliament may vote for the complete ban to remain, this
will not as the Prime Minister suggests “put the legal position beyond
doubt”40 because there will undoubtedly be further consequences. It
could lead to what the Justice Secretary describes as “political
consequences” as well as financial ones.
37 As to political consequences, leaving the ECHR and Council of
Europe altogether would be the “nuclear approach.” To do so would
severely weaken efforts at securing human rights not only elsewhere
within the Council of Europe, but globally considering the UK’s historic
and contemporary position as a leading nation on the subject. It is
doubtful whether this result is a price worth paying for avoiding the
enfranchisement of a proportion of convicted prisoners. It is suggested
that the important issue is not really the voting rights of prisoners.
Instead, the interference from Strasbourg in decisions traditionally
within the competence of Parliament is the issue of “totemic
importance”41 which for many perhaps might justify the consequences
that might flow from continued defiance of the ECtHR.
38 The financial cost of defying the ECtHR is not entirely clear. The
Attorney General (England and Wales), in the House of Commons
debate of 11 February 201142 said that it was “very difficult” to
calculate how much compensation might have to be paid, but
estimated that a prisoner who makes a claim could be entitled to
compensation of between £1,000 and £1,500.
39 At the first meeting of the Committee reviewing the draft UK Bill,
Juliet Lyon (Prison Reform Trust) warned that the UK Government
would be hit with a flood of compensation claims if the UK continued to
maintain a complete ban and defy the ruling in Hirst. Indeed, there
were 2,281 cases before the ECtHR suspended pending the UK’s
because the appeal was filed out of time in respect of the parliamentary
elections which A3P1 applied to. Furthermore, A3P1 did not apply to local
elections or the Alternative Voting Referendum. No claim could be brought
regarding future parliamentary elections given that the UK has published
proposals to amend the blanket ban.
40
Ibid, 24.
41
Justice Secretary evidence to Parliamentary Committee, 20 November
http://www.parliament.uk/business/committees/committees-a-z/joint-select/
draft-voting-eligibility-prisoners-bill/written-evidence/
42
http://www.theyworkforyou.com/debates/?id=2011-02-10b.493.1
implementation or otherwise of Hirst,43 and the ECtHR recently
reactivated 2,354 applications before it.44
40 In Greens & MT v UK,45 damages were not awarded because the
just satisfaction for the victims would be the amendment of the UK Act.
Refusing to implement Hirst and not providing this just satisfaction will
therefore lead to what the BBC’s legal affairs correspondent describes
as “the tap that never stops running”.46 With 86,000 prisoners in the
UK, a substantial amount of public money in legal payments and fees
could be used on claims which would “go on in perpetuity”.47 It is worth
noting that the UK could avoid potential claims by all 86,000 prisoners
by enfranchising only a small proportion of that number. To put it
another way, the persons who have committed crimes as heinous as
John Hirst do not actually have to be given the vote but they and all
other prisoners may claim for compensation if the franchise is not
extended to a limited number of prisoners who have committed less
serious crimes.
41 Adam Wagner, a barrister and General Editor of the UK Human
Rights Blog, estimates that each prisoner could receive around £1,000
in damages.48 This “nice signing-on bonus for UK prisoners” as
Wagner describes it, could be awarded not only to prisoners for being
historically affected by the ban but for also being affected by the
ongoing breach. The Attorney General (England and Wales)
acknowledged to the Parliamentary Committee that the number of
cases was bound to increase after next year’s European elections and
the General Election in 2015. Theoretically, claims could arise every
time there is an election for which a prisoner is disenfranchised and
thus the claims would indeed carry on in perpetuity.
43
Draft UK Bill, p 5, para 20.
Firth & 2,353 Others v UK (47784/09).
45
Greens & MT v UK (2011), 53 EHRR 21 (para 115).
46
Coleman, http://www.bbc.co.uk/news/uk-politics-20431995?print=true
47
Coleman, ibid.
48
http://ukhumanrightsblog.com/2012/11/22/a-1000-prisoner-vote-signingon-bonus
44
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Options for Jersey
42 Jersey has been monitoring developments in the UK, and a States
Committee has announced that it is awaiting progress on the draft UK
Bill before making further recommendations.49
43 If Jersey does decide to enfranchise prisoners, whether following
the UK’s lead or not, there are several options which the Island may
choose to take.
Linking disenfranchisement to the length of sentence
44 In Scoppola, the ECtHR endorsed a system where
disenfranchisement was automatic upon a prisoner being sentenced to
a term exceeding three years—
“The measure is not applied, therefore, to all individuals
sentenced to a term of imprisonment but only to those sentenced
to a prison term of three years or more. Italian law also adjusts
the duration of the measure to the sentence imposed and thus, by
the same token, to the gravity of the offence: the
disenfranchisement is for five years for sentences of three to five
years and permanent for sentences of five years or more.”50
45 Crucially for the court in Scoppola, there was no general and
automatic blanket ban on all prisoners as there was in Hirst. As the
court noted, the result of the Italian system was that “a large number of
convicted prisoners are not deprived of the right to vote in
parliamentary elections”.51 By limiting the disenfranchisement to those
sentenced to lengthy periods and those who had committed crimes
which offended democracy, Italian law was not considered to be
disproportionate in the same manner that the UK Act is,
notwithstanding that the UK law imposes no post-release restrictions
whereas Italian prisoners with sentences exceeding five years are
banned from voting for life (subject to being able to apply for
rehabilitation).
49
Public Elections: Amendments to Legislation and Administration. Lodged
au Greffe by the Privileges and Procedures Committee on 18th September
2013 (P.110/2013), p 23. The Proposition in P.110/2013 that remand
prisoners exercise their vote by postal vote was subject to an amendment of
the Comité des Connétables to substitute pre-poll voting for the postal vote
and this was agreed by the Assembly on 6 November 2013.
50
Scoppola v Italy (No 3) (2013), 56 EHRR 19, para 106.
51
Ibid, para 108.
46 Although it cannot be concluded with any certainty, simply
extending the franchise to those sentenced to lengths of imprisonment
at the lower end of the scale (e.g. six months or one year) may not be
sufficient to achieve compliance with A3P1. The Chamber in Frodl
made it clear that this option is incompatible with the ECHR; the Grand
Chamber in Scoppola favoured a system where losing the right to vote
was linked to a serious crime—
“it is applied only in connection with certain offences against the
State or the judicial system, or with offences which the courts
consider to warrant a particularly harsh sentence . . .”52
47 Therefore, limiting the voting ban to those serving sentences of, for
example, three or more years, would, it seems, meet with the
expectation of the ECtHR. However, to enfranchise only those serving
less than one year would likely fall foul of Strasbourg.
48 The Public Elections
disenfranchises a prisoner—
(Jersey)
Law
2002,
art
4,
only
“during the time that he or she is detained in a prison or other
penal institution in pursuance of his or her sentence or unlawfully
at large when he or she would otherwise be so detained.”
Therefore, if prisoner voting was introduced in Jersey, a prisoner who
has part of his or her sentence remitted for good behaviour and is
released early might exercise his or her right to vote (if entitled under
the Law) in the same way as a released prisoner may do so now. In
other words, a person sentenced to a term of imprisonment of, for
example, five years is not disenfranchised for five years if he or she is
released on remission earlier than the expiry of five years.
Linking disenfranchisement to specific offences
49 Another option would be to remove the right to vote from those
who commit prescribed offences. This could be limited to certain
offences against the State e.g. treason, terrorism or threatening
national security, embezzlement of public funds, extortion or bribery of
a public official, voting fraud, perverting the course of justice, abuse of
public funds, or abuse of office. This approach was fully endorsed in
Frodl and Scoppola and would be compatible with A3P1.
50 An alternative approach to specifying particular offences could be
to use more widely framed language, such as offences which are
deemed to target the “integrity of the State” or the “constitutional
52
Ibid, para 106, 48.
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protected democratic order” (Germany), or offences which “affect the
foundations of the State” (Netherlands).
51 Furthermore, language could be used which catches wider
offences such as sexual offences or drug trafficking. For example, in
Iceland, no person is considered to possess full civil rights if he or she
has been convicted by a court of law for “an act that is considered
heinous by public opinion.” Such language could clearly be interpreted
widely.
52 Of course, the option of linking a voting ban with specific offences
could be combined with the above option of determining by reference
to length of sentence. Italy, for example, operates a hybrid system of
disenfranchising those sentenced to more than three years or those
who have committed certain offences against democracy. The Grand
Chamber in Scoppola endorsed this approach which focuses on
specific offences as justification for disenfranchisement as opposed to
stripping all convicted prisoners of the right to vote, without
discrimination (subject to the aforementioned limited exceptions, i.e.
default of sentence or contempt of court).
Leaving discretion to enfranchise/disenfranchise to the judiciary
53 Discretion could be given to the sentencing court whether to
disenfranchise someone, or on the other hand to re-enfranchise
someone (if the default position is disenfranchisement). The Chamber
in Frodl said that—
“such a measure should preferably be imposed not by operation
of a law but by the decision of a judge following judicial
proceedings.”53
54 As aforementioned the Grand Chamber retreated from this in
Scoppola saying that a judicial consideration was not mandatory but
that—
“the intervention of a judge is in principle likely to guarantee the
proportionality of restrictions on prisoners’ voting rights.” 54
55 France, another ECHR party, leaves the removal of the right to
vote completely at the discretion of the judge.
56 The discretion of a judge could be total discretion, i.e. whether or
not to disenfranchise. On the other hand, the discretion could be
limited so that certain offences or length of sentence (say for example
53
54
Frodl v Austria (2011), 52 EHRR 5.
Scoppola v Italy (No 3) (2013), 56 EHRR 19, para 99.
in excess of four years) automatically attract the loss of the vote,
whereas the judge would have discretion in all other cases.
Practical issues to consider
Prisoner’s constituency
57 If enfranchisement of prisoners was ever to be considered in
Jersey, there could be practical concerns over the possibility of
prisoners distorting an election if they voted en bloc in the Vingtaine de
Quennevais de la Moye and St Brelade No 2. The UK has expressed
similar concerns55 and added that prisoners are often imprisoned in
areas they do not have any previous connection with, and so it would
not be right for them to have a vote for that area. The draft UK Bill
confirms that if the UK were to allow any prisoners to vote, then such
prisoners would be permitted to register to vote in areas in which they
previously resided or where they have a local connection. This is
consistent with the provision for prisoners on remand under the UK
Act, s 7A.56 Indeed, the draft UK Bill provides for the UK Act, s 7A to
include prisoners as well as remand prisoners, should Parliament
choose option 1 or 2.
58 The approach of treating the area in which a prisoner was
ordinarily resident prior to incarceration as his or her electoral district is
consistent with the UK’s proposals and also the approach of both the
UK and Jersey as regards remand prisoners.
59 There are of course prisoners who have been detained “coming off
the boat/aeroplane” attempting to smuggle drugs into the Island and
may have had no area of “ordinary residence” in the Island prior to
incarceration.
60 It is not clear whether the ECtHR would allow discrimination in
such cases but the court has continually said that Contracting States
must be given a wide margin of appreciation in this sphere. Arguably,
there is justification for treating such prisoners differently as attempting
to smuggle narcotics into a small Island where the high street value is
significantly greater than the UK, could be treated as the sort of
serious offence that threatens the peace and prosperity of the Island
and is therefore sufficient to justify a voting ban. In any event, those
attempting to smuggle drugs into the Island might be sentenced to a
lengthy sentence which would not enable them to vote if a link to
length of sentence were adopted.
55
Second stage consultation, 8 April 2009, p 31 (6 ibid).
As inserted by the Representation of the People Act 2000.
56
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How the prisoner votes
61 How a prisoner would actually vote is another important practical
issue, and if all or any prisoners were to be granted the vote, the postal
vote or the pre-poll vote would be potential options (subject to
amending the Public Elections Law). The States of Jersey recently
agreed to amend the Public Elections Law by allowing prisoners on
remand to vote by pre-poll and this might be the most practical option
for any convicted prisoners who are eventually given the vote.
62 Alternatively, an expanded version of the ill, disabled or illiterate
vote under the Public Elections Law, art 35 might be more appropriate
i.e. for the Autorisé or Adjoint to visit La Moye to gather votes, and this
is similar to the approach in the Isle of Man.
Transferred prisoners
63 If prisoner voting were to be introduced, a policy decision would
need to be made as regards Jersey prisoners who, although having
become able to vote, have been transferred to the United Kingdom
under the Crime (Sentences) Act 1997 to serve their sentence, and
those prisoners who are transferred to serve their sentence elsewhere
pursuant to international arrangements in accordance with the
Repatriation of Prisoners (Jersey) Law 2012.
64 If the policy intention were to enfranchise certain prisoners
convicted in Jersey irrespective of where they were incarcerated, then
an exception would need to be made to the Public Elections Law, art 5,
which requires a person to be “ordinarily resident” in his or her
electoral district in order to be entitled to be on the electoral register.57
65 As for prisoners transferred into Jersey from another jurisdiction,
there would appear to be no reason why such persons should not be
able, subject to any administrative limitations (e.g. under Prison
(Jersey) Rules 2007), to vote in that other jurisdiction if the law of that
jurisdiction permitted them to do so.
66 As for voting in a Jersey election, the assumption must be that a
prisoner transferred into Jersey would be unable to satisfy the Public
Elections Law, art 5, because he or she would have been ordinarily
resident elsewhere prior to incarceration. However, some prisoners
could conceivably have been ordinarily resident for the purposes of the
Public Elections Law before their imprisonment, and only temporarily
absent from Jersey e.g. on holiday when incarcerated; and in these
circumstances a prisoner could theoretically still be on the electoral
register under art 5.
57
Under Article 2 of the Public Elections Law, a person is entitled to vote in
a public election if he or she is entered on the electoral register.
Conclusion
67 The UK took seven years and three Prime Ministers before actually
introducing draft legislation to comply with Hirst, and the process of
putting it to consultation means that a definitive answer will not be
forthcoming from the UK until at least mid-2014. Even then, the House
of Commons is likely to vote in favour of retaining the blanket ban and
the battle between the UK and the ECtHR will continue. The ECtHR
has recently made another controversial ruling on a separate issue
and declared that whole life sentences without the option of review or
release are incompatible with the ECHR, art 3.58 There is no doubt,
and with the help of a media never slow to criticise Strasbourg, that the
question of prisoner voting will be subsumed in the larger debate over
the role of the Strasbourg judges and their interpretation of the living
instrument that is the ECHR to limits that were arguably never within
the contemplation of the framers of the ECHR. The Justice Secretary
has conceded that the right of prisoners to vote is not a fundamental
political question, and that it even has reasonable arguments in its
favour, but that the debate is really more concerned with the issue of
who governs Britain and the desire of the UK Prime Minister to “clip
the wings” of the ECtHR.59 A resolution of the issue in the UK may not
therefore be expected in the near future.
68 Jersey is faced with a dilemma: does it take a hard-line approach
like the UK and accept the political and financial consequences which
may result, or does it follow the lead of the other Crown Dependencies
and introduce, to whatever extent, prisoner enfranchisement?
69 When fractious debates take place over engaging more Islanders
in political life and increasing voter turnout, campaigning for the
prisoner vote and holding hustings at HMP La Moye are probably not
what people have in mind.
Steven Meiklejohn is an Assistant Legal Adviser (Civil Division) in the
Law Officers’ Department, Jersey. He is currently studying for the
Jersey Advocates exams through the Institute of Law. This article does
not necessarily express the views of the Law Officers’ Department
58
Vinter v UK, Grand Chamber, 9 July 2013 (Applications 66069/09,
130/10,3896/10).
59
http://www.telegraph.co.uk/news/politics/10515983/David-Cameron-I-willclip-European-courts-wings-over-prisoner-voting.html