Hirst v UK

Rosalind English

Hirst v. the United Kingdom (No. 2) (application no. 74025/01).

Grand Chamber, 6 October 2005

ABSTRACT

Section 4 of the Representation of the People Act which prevents prisoners from voting is in breach of the electoral right under Article 3 Protocol 1 of the Convention

SUMMARY

The applicant, John Hirst, served a sentence of life imprisonment for manslaughter until 25 May 2004, when he was released from prison on licence. His tariff (the part of his sentence relating to retribution and deterrence) expired on 25 June 1994. However, he remained in detention, as the Parole Board considered that he continued to present a risk of serious harm to the public.

As a convicted prisoner, the applicant was barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections. According to the United Kingdom Government's figures, some 48,000 other prisoners are similarly affected.

He issued proceedings in the High Court, under section 4 of the Human Rights Act 1998, seeking a declaration that section 3 was incompatible with the European Convention on Human Rights. On 21 and 22 March 2001 his application was heard before the Divisional Court; but his claim and subsequent appeal were both rejected.

The applicant alleged that, as a convicted prisoner in detention, he was subject to a blanket ban on voting in elections. He relied on Article 3 of Protocol No. 1, Article 14, as well as Article 10 of the Convention.

Held:
 
Complaint upheld.

Article 3 of Protocol No. 1

The Court stressed that the rights guaranteed under Article 3 of Protocol No. 1 were crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law and also that the right to vote was a right and not a privilege.

Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 were not absolute. There was room for implied limitations and Contracting  States had to be given a margin of appreciation in that sphere to reflect the wealth of differences in historical development, cultural diversity and political thought within Europe.

However, any limitations on the right to vote had to be imposed in pursuit of a legitimate aim and be proportionate. Any such conditions had not to thwart the free expression of the people in the choice of the legislature - in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Exclusion of any groups or categories of the general population had therefore to be reconcilable with the underlying purposes of Article 3 of Protocol No. 1

Concerning prisoners in particular, the Court emphasized that there was no question that they forfeit their Convention rights merely because of their status as detainees following conviction. Nor was there any place under the Convention system, where tolerance and broadmindedness were the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.

The Court recalled that Article 3 of Protocol No.1 did not specify or limit the aims which a measure must pursue. The United Kingdom Government had submitted that the measure aimed to prevent crime, by sanctioning the conduct of convicted prisoners, and to enhance civic responsibility and respect for the rule of law. The Court accepted that section 3 might be regarded as pursuing those aims. However, such a severe measure of disenfranchisement was not to be undertaken lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.

The Government submitted that the ban was in fact restricted in its application as it affected only around 48,000 prisoners, those convicted of crimes serious enough to warrant a custodial sentence and not including those detained on remand, for contempt of court or default in payment of fines.

However, the Court considered that 48,000 prisoners was a significant figure and that it could not be claimed that the bar was negligible in its effects. It also included a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. Also, in sentencing, the criminal courts in England and Wales made no reference to disenfranchisement and it was not apparent that there was any direct link between the facts of any individual case and the removal of the right to vote.

As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, it could not be said that there had been any substantive debate by members of the legislature on the continued justification, in the light of modern day penal policy and of current human rights standards, for maintaining such a general restriction on the right of prisoners to vote.

Regarding the existence or not of any consensus among Contracting States, the Court noted that, although there was some disagreement about the state of the law in certain States, it was undisputed that the United Kingdom was not alone among Convention countries in depriving all convicted prisoners of the right to vote. It might also be said that the law in the United Kingdom was less far-reaching than in certain other States. Not only were exceptions made for those committed to prison for contempt of court or for default in paying fines, but unlike the position in some countries, the legal incapacity to vote was removed as soon as the person ceased to be detained. However the fact remained that it was a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote was imposed or in which there was no provision allowing prisoners to vote. Even on the Government's own figures, the number of such States did not exceed 13. Moreover, and even if no common European approach to the problem could be discerned, that could not of itself be determinative of the issue.

Therefore, while the Court reiterated that the margin of appreciation was wide, it was not all-embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remained a blunt instrument. It stripped of their Convention right to vote a significant category of people and it did so in a way which was indiscriminate. It applied automatically to convicted prisoners in prison, 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 had to 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. The Court therefore held, by 12 votes to five, that there has been a violation of Article 3 of Protocol No. 1.

Considering that the Contracting States had adopted a number of different ways of addressing the question of the right of convicted prisoners to vote, the Court left the United Kingdom legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1.

Article 10 and 14

Like the Chamber, the Grand Chamber found that no separate issue arose either under Article 10 or Article 14.

COMMENT (October 2005)

In the domestic proceedings running up to this application, Hirst was one of the claimants in R (Pearson and Martinez) v Secretary of State for the Home Department [2001] HRLR where he and the other claimants argued that Section 3 of the Representation of the People Act 1983  prevented them, as prison inmates, from voting, was a breach of Article 3 Protocol 1. The Administrative Court held that this denial was legitimate and proportionate as being part of the forfeiture of their general freedoms undergone as part of their punishment. Now the Strasbourg Court has decided that the blanket denial of voting rights is disproportionate.

This ruling exposes the democratic deficit in human rights adjudication by unrepresentative judges, particularly when the ruling is reached at an international level.

Considerable importance was attached to electoral rights cases from non-Council of Europe countries, to indicate that the disenfranchisement of prisoners was the exception rather than rule in most civilised societies in the world. One of the cases to which the the Grand Chamber referred was the South African case of  August and another v. Electoral Commission and others (CCT8/99: 1999 (3) SA 1), where the Constitutional Court of South Africa considered the application of prisoners for a declaration and orders that the Electoral Commission take measures enabling them and other prisoners to register and vote while in prison. It noted that under the South African Constitution the right of every adult citizen to vote in elections for legislative bodies was set out in unqualified terms, and found no problem in ruling that this right to vote by its very nature imposed positive obligations upon the legislature to facilitate voting by prisoners.

 The question of whether legislation barring prisoners would be justified under the Constitution was not raised in the proceedings and it emphasised that the judgment was not to be read as preventing Parliament from disenfranchising certain categories of prisoners. In the absence of such legislation, however, prisoners had the constitutional right to vote and therefore reasonable arrangements had to be made accordingly.

But the relevance of this case is questionable. The South African Court was not dealing with a legislative restriction on prisoners' voting rights; in the absence of a ban by the parliament, naturally the response of the courts was to impose a positive obligation on the authorities to facilitate the voting rights of prisoners. The situation is quite different in the United Kingdom. Here the policy that prevents prisoners from participating in elections has been adhered to over many years with the explicit approval of Parliament, most recently in the Representation of the People Act 2000, which was accompanied by a statement of compatibility under the Human Rights Act.

Since the very focus of this judgment is on one of the main constituent elements of democracy, electoral rights, it is par excellence a matter for parliament to decide, and the courts to monitor. It is hard to see why the Court sees itself as superior in competence to the legislature by thus replacing the view of a democratic country with its own view as to what is in the best interests of democracy.

The Grand Chamber laid considerable stress on the apparent lack of evidence that Parliament had ever sought to debate this issue thorougly, by  weighing the competing interests or assessing the proportionality of a blanket ban on the right of a convicted prisoner to vote. But this suggests that every time the Court considers a piece of legislation which has been preceded not by contentious debate but by a long tradition of consistency, it will assume that the measure has no proper moral or intellectual backing and continues to remain in force by dint of historical passivity. This is not the case; if it were, then legislation backed up by such basic assumptions such as the necessity for custodial sentences for serious crimes could be impugned on the same basis. As they pointed out rather archly in their dissenting opinion, Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens did not think that it was " for the Court to prescribe the way in which national legislatures carry out their legislative functions. It must be assumed that section 3 of the Representation of the People Act 2000 reflects political, social and cultural values in the United Kingdom."

In his concurring judgment, Judge Calfisch referred to the UK government's contention that "disenfranchisement in the present case was in harmony with the objectives of preventing crime and punishing offenders, thereby enhancing civic responsibility". He himself doubted that "very much", believing, on the contrary, that participation in the democratic process may serve as a first step toward re-socialisation. But the rehabilitation of convicted criminals is, with respect, a matter of deep political controversy, and it is not for the Court to take sides on it and rule accordingly.

The Court's finding that the measure was flawed for arbitrariness is not unassailable. It accepted that these restrictions did not impair the very essence of the right to vote. In the absence of arbitrariness, then, there should be sufficient margin of appreciation for legislatures to decide for themselves what should be the appropriate restrictions on voting rights. But the Court found that Section 3 of the Representation of the People Act was arbitrary; that, in other words, prisoners enjoy all other fundamental rights apart of course from the right to liberty, so there is no reason why they should be denied the right to vote. But this is not an accurate reflection of reality; the "other rights", such as the right to free speech, the right to respect for home and family life, the right to associate freely, the right to peaceful enjoyment of possessions, are all massively limited if not downright curtailed during a period of detention. Article 5 and Article 3 Protocol 1 are emphatically not the only provisions of the Convention that is shut outside the prison door at the commencement of a sentence of imprisonment.

Rosalind English, 1 Crown Office Row

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