Should prisoners enjoy the right to vote? Professor Jacqueline Hodgson School of Law, University of Warwick, UK Systemic, Psychological and Judicial Issues in Imprisonment Trudeau Foundation; Les Entretiens Jacques Cartier Lyon, 26-27 November 2013

“No one should be in any doubt: prisoners are not getting the vote under this Government.” David Cameron, Prime Minister (Prime Minister’s Questions 24 October 2012)

The UK Background Until 1870, ‘Civic death’ where forfeited land, voting rights etc 1870 reform, only those sentenced to more than 12 months imprisonment lost the right to vote 1969 Representation of the People Act disenfranchised all prisoners Those on remand, in contempt & fine defaulters can vote

The ECtHR challenge Hirst v UK (2005) found that the UK ‘blanket ban’ on all prisoner voting was in breach of the ECHR: arbitrary & disproportionate Re-affirmed in Scoppola v Italy (no. 3) in which the UK was permitted to intervene Compensation claims Voting Eligibility (Prisoners) Draft Bill under pre-legislative scrutiny by Joint Committee (report 18 December 2013)

The ICCPR Art 25 of the International Covenant on Civil and Political Rights UK argues: the temporary disenfranchisement of convicted prisoners pursues a legitimate aim, is proportionate & so constitutes a ‘reasonable’ restriction under Art 25 ICCPR

Article 3 of Protocol No. 1 of the ECHR 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. ECtHR has interpreted this as guaranteeing all citizens a right to vote

Prisoner voting rights in other countries In 19 countries: all prisoners can vote In 7 countries: all prisoners barred from voting (including UK) In 16 countries: restrictions based on nature of crime, length of sentence Some of these restrictions extend beyond imprisonment

Hirst v UK : the UK perspective UK argued wide margin of appreciation re defining restrictions on right to vote Disqualification to prevent crime, punish offences, enhance civic responsibility, promote respect for the law Ban promotes legitimate aims Ban proportionate: only affects those convicted of crimes sufficiently serious to warrant immediate imprisonment

Hirst v UK: the ECtHR ruling Restrictions permitted, but, principle of proportionality requires a discernible & sufficient link between the sanction & the conduct & the circumstances of the individual disenfranchised. UK courts do not mention/address disenfranchisement No clear link between case facts or gravity, and disenfranchisement Automatic, indiscriminate ban outside margin of appreciation

Frodl v Austria Similar issues to Hirst but ECtHR set down principles for any prisoner disenfranchisement: for narrowly defined group serving lengthy term Need direct link between case facts and sanction of disenfranchisement Such a measure preferably imposed by judge following judicial proceedings

Scoppola v Italy (No. 3) ECtHR first said lifetime ban for those sentenced to life breached Protocol 1 as general measure, applied indiscriminately, with no consideration of nature/seriousness of offence Grand Chamber found no breach: pursued legitimate aim of enhancing civic responsibility, respect for the rule of law & ensuring the proper functioning & preservation of the democratic regime Adjusted ban to facts & gravity of case, and conduct of offender

UK gains some ground… Grand Chamber did not share Court’s interpretation of Hirst …the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. (para 102)

UK arguments: Breach of social contract Offending of the level of gravity that attracts a prison term, amounts to a breach of the social contract and so removes the entitlement to participate in the democratic process until that sentence has been served Policy pursues legitimate aims of respect for the rule of law, and in applying only to those whose offending is sufficiently serious to merit a prison term, it is proportionate cf Sauvé v Canada: the ban on voting for prisoners serving a sentence of two or more years’ imprisonment undermined rather than promoted, respect for the law & democracy as law’s legitimacy derives from the citizen’s right to vote

“…the removal of the right to vote…is not only a punitive measure…it goes to the essence of the offender’s relationship with democratic society. Its removal underlines to the prisoner the importance of that relationship, and his breach of it in committing a serious crime. The reinstatement of the right marks his re-entry into society is aimed at enhancing his sense of civil responsibility and respect for the rule of law” (Ministry of Justice 2009)

UK arguments: ECtHR has exceeded jurisdiction In Feb 2011, Parliament was resounding in its support for the current legal position: the motion was supported by 234 votes to 22 No constitutional legitimacy to act in this way, overturning Parliamentary law Living instrument approach allows expansionist tendencies Questioned competency of Court

Social responsibility Enfranchisement would develop social responsibility and prepare for life outside prison Disenfranchisement disproportionately affects already marginalised groups (see also Sauvé v Canada Effect is arbitrary – depends on whether there is an election during sentence term

Disenfranchisement not punishment Cannot justify as punitive measure as does not fulfill any objectives of punishment It will not assist in the rehabilitation of offenders (it is argued that it achieves the reverse, by isolating and excluding prisoners); nor their incapacitation; nor does it serve as a deterrent Court in Hirst noted that the punitive aims of disenfranchisement were not met in that case as the ban applied after the punitive part of the sentence had been served Many bad & dangerous people – and some of them are in prison

ECHR undermined May choose to ignore ECtHR but undermines UK’s moral authority and would weaken Convention system Set a poor example; would justify Russia, Turkey or Ukraine ignoring judgments EU obligations may ensure ECHR still applicable – at least when EU law in play Mistake to portray Strasbourg as separate from UK, rather than to continue to influenced ECtHR with UK decisions

Conclusion: current choices Voting Eligibility (Prisoners) Draft Bill options: No change; Ban on voting where sentenced to more than 6 months (would return vote to less than 10%); more than 4yrs (would return vote to 45% prisoners) Last 2 options would satisfy Court

A principles approach Why distinguish by sentence length? Why not nature of offence, or conduct of offender? Sentence criteria continues to ignore this Why disenfranchise prisoners at all? Breached norms of criminal law – serve prison sentence to atone; no need for additional civic punishment. Would not consider for breaches of other legal norms