Introduction
Currently the UK disenfranchises all convicted prisoners[1] however prisoners, held on remand, retain an entitlement to vote[2] it is important to assess whether or not the Government’s blanket ban on voting is proportionate. In order to fully assess this, two areas will be considered in depth: the Human Rights issues and the proportionality issues. Arguably, there are other areas that can be considered however, these appear to be less relevant and out with the scope of this article to consider these.
Human Rights
The European Convention on Human Rights (ECHR) stipulates that voting is a civil right and not a privilege,[3] which has been confirmed in the recent case of Hirst,[4] in which the Court have declared that the UK’s blanket ban was an unlawful breach of the Convention.[5] However, the Prime Minister (PM) has responded to this ruling by stating that it even contemplating allowing Prisoner Voting “makes him physically ill…”[6] which prime facie means that he will not even consider any change in the law, furthermore, MP’s appear to agree with these comments, having voted to uphold the blanket ban.[7] Arguably, as the Head of Government, David Cameron’s commentary is highly persuasive, and it seems that the prisoners’ entitlement to vote will not be granted without a fight. The Attorney General has subsequently claimed that it is matters, such as the prisoners right to vote that the margin of appreciation was designed for, which appears to be that the UK are aiming at reforming the European Judicial System, rather than fight against it, and while the Attorney General is addressing the European Court with these points,[8] it appears the ban will remain.
It could be argued that as the Government is strongly against the very idea that prisoners could have any entitlement to vote. They are currently maintaining the ban, in order that it could aid their appeal against Hirst. If that was the thinking behind this then it has failed in its agenda. The Grand Chamber has declined the appeal,[9] stating that the decision is, legally binding, on the UK. The Grand Chamber have issued an order, which stipulates that the UK, has a maximum of six months to either, comply with their decision or face consequences, which would result in, prisoners being entitled to claim compensation.[10] However, and arguably luckily for the Government, the UK has been granted a reprieve, in that, the Grand Chamber has accepted a referral for the Scoppola[11] case, as the cases have similar legal issues, and as of the 31 August the UK was granted a six month extension, which the Government has welcomed stating that the wider legal issues of Scoppola must be considered before handing a final judgment on the prisoner right to vote.[12]
It is clear that there is a breach of the prisoners Human Rights by maintaining this blanket ban. By ratifying the ECHR, and incorporating it into domestic law[13] means the Government is duty bound to follow this and as such are unable to choose which protocols or articles to follow, especially, as this type of rationale would result in decisions based upon public perception and the impact this could potentially have on the Government, after all, there is a reason that previous PM’s have skirted and delayed this issue.[14] That reason is, arguably, public opinion as it is clear that the public are very much against franchising prisoners.[15] Thus, they will actively be against any move by the Government take in order to give voting rights to prisoners, and evidently public opinion will always drive the Government.
Furthermore, it appears that denying the vote itself is a form of punishment and that as the prisoners have taken another’s rights then they should not be entitled to a say in the creation of future laws. However, the very act of incarceration is the surely sufficient punishment, as restricting a person’s freedom is the ultimate breach of liberty,[16] furthermore, a vote is not an influence on new laws nor will it impact their sentence, the only impact a prisoners vote could possibly have is an influence over which candidate gained a seat and this is something that all citizens of age[17] are legally entitled to.
Proportionality
There is no evidence that any Government has assessed whether or not a blanket ban is proportionate, it is clear that it is not. This was seen not only in Hirst[18]but a blanket ban has also been rendered unlawful in Frodyl[19]and Scoppola[20] this undoubtedly proves that the blanket ban is disproportionate.[21] As previously established the Government and public are against this idea worrying about, murderers, sex offenders, violent prisoners having the vote,[22] which also begs the question as to whether or not blanket enfranchisement may also be disproportionate.
There is no reason, however, for Government to swing from one extreme to the other. There are clear options available, as was seen in Germany and France, the process in these Jurisdictions is to allow the Judge to disenfranchise prisoners at the sentencing stage,[23] or in the alternative, four options have been proposed, all of these options mean that any right to vote, prisoners are entitled to, will be subject to certain conditions and type of crime.[24]
The fist option is that a person sentenced to one year or less will automatically retain their vote. Secondly, a person sentenced for less than two years will retain their vote. Thirdly, a person sentenced to less than four years will automatically retain their vote, the fourth option, that has been proposed, is that a prisoner, with a sentence of less than two years will automatically retain their vote. However, for terms imposed between two and four years will be for the Judge at the sentencing stage to decide.[25] This is similar to the methods seen on the continent and would arguably be a sufficient system to appease the Grand Chamber, as it is used, successfully, throughout Europe.
Dis-proportionality is further evidenced by the very fact that under the current rule all prisoners are treated as if all crimes are identical. This is simply not the case, hence why there is a variety of sentencing tariffs[26], some having minimum penalties imposed whereas many allow for Judicial discretion, dependent upon the circumstances of the case.[27] A blanket ban, therefore, cannot be proportionate, as it is arguably imposing a further punishment upon the convicted with no regard as to the nature of their crime.
When a defendant is found guilty and sentenced to imprisonment the reasoning behind this is not simply to punish a person, part of the prison regime is to rehabilitate the person which allows them, upon release, to rejoin the larger society as a productive and law abiding citizen.[28] Arguably, while prisons have many schemes to enable this such as education, anger management, and many more[29] it is evident that by allowing a person who has committed a relatively minor crime, then this would aid that process by giving them a feeling of being part of the wider society, as their vote would influence Government but furthermore give them a sense of civic pride.[30] If a person has pride in his community then arguably they will not want to damage it further by reoffending.
The public at large do not want prisoners to attain the vote as they have infringed the rights of others so they lose these rights.[31] For the Government to even consider the argument “a prisoner has taken the rights of another”, in order to justify, any blanket ban that removing rights, is largely unsound, after all, how long will it be until public opinion demands further infringement of rights and uses this argument in other ways such as the removal of education, after all why should a prisoner gain access to free education when other law abiding citizens, including potential victims, need to pay? Public opinion should not be the driving force behind, Government’s, especially when the majority of public opinion is generated, from the, newspapers that have attention grabbing headlines, that meet the aim of selling more newspapers, due to the emotive nature of these headlines and while arguably the purpose of the Media is to generate sales of newspapers it does not help create a balanced discussion, nor give accurate information. The fact remains that not all crimes or prisoners are the same, and a majority of crimes are not the violent crimes[32] the newspapers often claim.
Furthermore, it is evidently disproportionate, as the blanket ban is not actually achieving anything, there is no additional protection for deterrent to committing crime and furthermore, it isn’t aiding the rehabilitation of prisoners.[33] The only thing the ban serves is to prove that this is an unjust additional punishment applied to every prisoner regardless of crime.
Perhaps by enfranchising prisoners, giving them a say in society will make them feel a part of society as a whole and make them more inclined to be productive members of society as a whole. Furthermore, it would not be a difficult for the UK to even trial this concept. Arguably, there would be no great difficulty to implement this, other than finding extra ballot boxes and polling staff, which could easily be combated by giving prisoners a postal vote as seen in Ireland.[34] The greatest difficulty would be to in deciding the constituency would fall under, would it be the prison’s constituency? Or would it be the case that the vote is effectively returned to the prisoner’s original constituency? That really is for the Government to decide upon, however, when the country currently process millions of votes, it seems that deciding what should be done with additional 90,000, would create a significant impact.
Conclusion
Overall, therefore, a blanket restriction is disproportionate. If society is to trust and rely upon the judicial system, then it is essential, that this remains a fair and transparent system that upholds the rule of Law.
To put it simply, prison is not solely about punishment it is also about rehabilitation; so that prisoners can become productive members of society, as why should the prisoners take any interest in a society that is not interested in them? If they can see clearly that their MP’s are interested in Penal issues then this can only be of a benefit as who else can really know what prison is like than the prisoners?
Not only is a blanket ban disproportionate but it is unlawful, the decision of the European Court Human Rights may not be very popular, but it is binding. The only way that the UK can continue to disenfranchise prisoners is to withdraw from the ECHR, and this could potentially have far reaching consequences, which are outside the scope of this essay to discuss.
In spite of any perceived difficulties, the fact remains that not only should the Government lift this blanket ban, they legally must if they wish to avoid repercussions from the ECHR.
[1] Representation of the People Act 1983 s.3 (1) (2)
[2] Representation of the People Act 2000
[3] European Convention on Human Rights Protocol 1
[4] Hirst v UK (No 2)]] (2004) 38 EHRR 40 [2007] ECR II-3601
[5] European Convention on Human Rights Protocol 1
[6] Hansard HC Deb 3 November 2010 Col.921, comments from David Cameron
[7] David Roland ‘MPs take stand against jail votes: Cameron is urged to defy Strasburg ruling’, Times, (February 11, 2011), 3
[11] Case C-126/05 Scoppola v Italy (No 3) [2010] ECR 00
[13] Human Rights Act 1998
[15] ‘Only 8% back voting right for prisoners’, Times, (3 February 2011)
[16] European Convention on Human Rights Protocol 2 art 5
[17] Representation of the People Act 2000 s.1 (d)
[18] Hirst v UK (No 2)]] (2004) 38 EHRR 40 [2007] ECR II-3601
[19] Case C-462/06 Frodl v Austria [2008] ECR I-3965
[20] Case C-126/05 Scoppola v Italy (No 3) [2010] ECR 00
[21] Obiter from these cases
[32] HC Deb 21 December 2010 c1166W
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