Petition Of D.b.for Judicial Review Of Decision By Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2007] CSOH 73 |
| Date | 04 April 2007 |
| Docket Number | P694/07 |
| Published date | 30 April 2007,27 April 2007 |
| Court | Court of Session |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 73 | |
| P694/07 | OPINION OF LORD MALCOLM in the petition of D.B. Petitioner: for Judicial Review of the decision taken by the Scottish Ministers on 27 February 2007 to revoke the petitioner's licence and to recall the petitioner to custody ________________ |
Petitioner: Carmichael, Barne; Balfour & Manson (for Taylor & Kelly, Coatbridge)
Scottish Ministers: Cullen Q.C.; R Henderson
Advocate General for Scotland: Moynihan, Q.C.; H Macdiarmid
4 April 2007
[1] This application for judicial review concerns a challenge to the lawfulness of a decision of the Scottish Ministers (the respondents) dated 27 February 2007 made under section 17(1)(a)(ii) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act") to revoke the petitioner's release on licence and recall him to prison. On 24 January 2003 the petitioner pled guilty to a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 ("the 1971 Act"), namely being concerned in the supply of cocaine. He was sentenced to six and a half years imprisonment. The petitioner had been sentenced to four years imprisonment for a similar offence in July 1997. Following a recommendation by the Parole Board for Scotland, the petitioner was released on licence on 19 May 2006 under section 1(3) of the 1993 Act. It was a condition of the licence that he "be of good behaviour and .... keep the peace." In February 2007 the petitioner appeared in Aberdeen Sheriff Court on a petition specifying two charges of contravention of section 4(3)(b) of the 1971 Act, involving cocaine and diamorphine with a high street value. The allegations related to the period when the petitioner was on licence. Exercising their powers under section 17 of the 1993 Act the respondents considered that the petitioner presented an unacceptable risk to the safety of the public and that it was expedient in the public interest that his licence should be revoked in order that he be returned to prison to complete the sentence imposed in 2003. As a result bail was not opposed in respect of the new charges. In terms of section 17(3) of the 1993 Act the respondents have referred the matter to the Parole Board for Scotland in order that the Board can consider whether or not to direct the respondents to re-release the petitioner on licence. If the Board issues such a direction the respondents must release the petitioner. However, the Board's main concern is public safety, and there must be considerable doubt as to the petitioner's prospects for re-release.
[2] In these circumstances the issue concerning the lawfulness of the revocation of the petitioner's licence arises in this way. Section 3(1) of the Representation of the People Act 1983, as amended, ("the 1983 Act") provides:
"A convicted person during the time he is detained in a penal institution in pursuance of his sentence.... is legally incapable of voting at any parliamentary or local government elections."
The petitioner is registered to vote, and if at liberty on 3 May 2007 he would be free to participate in the elections to the Scottish Parliament to be held on that day. Following on the decision in Hirst v UK (No. 2) (2005) 42 EHRR 41, the Registration Appeal Court in Smith v Scott 2007 SLT 137 declared that section 3(1) of the 1983 Act is incompatible with article 3 of the first protocol to the European Convention on Human Rights (the Convention), which provides:
"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."
In Hirst it was decided that article 3 of the first protocol guarantees individual rights, including the right to vote. Universal suffrage is the basic principle. Prisoners do not automatically forfeit their right to vote, and any restrictions applied to them in pursuit of a state's margin of appreciation must be proportionate and justified by a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. However section 3(1) of the 1983 Act imposes a blanket restriction which applies automatically to all prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances, and thus falls outside any acceptable margin of appreciation. In Smith the Registration Appeal Court decided that section 3(1) could not be "read down" in a manner which would remove the incompatibility identified by the Strasbourg court. While the UK Government is taking steps to introduce a Convention compliant alteration to the law, this process will take some time to complete. In the meantime the Registration Appeal Court observed that it is apparent "that the Scottish parliamentary elections in May 2007 will take place in a manner which is not Convention compliant." In these circumstances it was considered appropriate to declare the incompatibility between section 3(1) of the 1983 Act and article 3 of the first protocol to the Convention.
[3] Unless the petitioner is released before then, the revocation of his licence will result in him being disenfranchised on 3 May 2007 by virtue of the operation of section 3(1) of the 1983 Act, a provision which has been declared to be incompatible with a Convention right. The petitioner contends that this is sufficient to render unlawful the respondents' exercise of their powers under section 17 of the 1993 Act. It is said that this flows from the terms of section 57(2) of the Scotland Act 1998 ("the Scotland Act") which, so far as relevant, provides:
"Any member of the Scottish Executive has no power.... to do any ... act, so far as the ... act is incompatible with any of the Convention rights...."
A first hearing took place on 3 and 4 April 2007. The petitioner and the respondents were represented by counsel, as was the Advocate General for Scotland, who has intervened in the proceedings. At the conclusion of the hearing I refused the petition on the ground that the revocation of the petitioner's licence was lawful. In this opinion I give my reasons for that decision.
[4] For the petitioner Miss Carmichael's submission was straightforward. The consequence of the revocation of the petitioner's licence is that he is once again subject to disenfranchisement on the basis of legislation which infringes his rights under article 3 of the first protocol. It follows that the revocation is incompatible with the Convention and thus, standing the terms of section 57(2) of the Scotland Act, it falls outside the powers of the respondents. The revocation is null, void and of no lawful effect. She sought declarator, reduction of the revocation, and liberation of the petitioner. There is an attractive simplicity and apparent logic to Miss Carmichael's submission, but, as explained below, I am satisfied that it is wrong. For the respondents Mr Cullen, Q.C. submitted that the revocation was a link in the chain of events leading to the petitioner's disenfranchisement, but it did not follow that it was an act incompatible with the Convention rights granted in article 3 of the first protocol. The act of revocation engaged only articles 5 and 8 of the Convention. Any connection between the revocation of the petitioner's licence and the infringement of article 3 of the first protocol is too tenuous. Relying on a recent decision in Northern Ireland, which I mention below, Mr Cullen submitted that the "real mischief" is the 1983 Act, which is an Act of the UK Parliament. Both he and Mr Moynihan, Q.C. for the Advocate General for Scotland emphasised that the franchise is a reserved matter in terms of schedule 5 to the Scotland Act. Mr Cullen stressed the unacceptable consequences of releasing the petitioner. He conceded that if the revocation is incompatible with a Convention Right, it would be unlawful and fall to be reduced. However, the public safety reasons for the revocation should be weighed in the balance when determining whether there is any incompatibility. At the very least the Parole Board procedures should be allowed to run their course. In judicial review the Court has a wide discretion as to remedy, and, on any view, open-ended liberation is an excessive request. Mr Moynihan suggested that the petition is unusual in involving the interaction of devolved and reserved powers. He described it as an ingenious attempt to circumvent section 4(6) of the Human Rights Act 1998 (HRA) which operates to preserve the sovereignty of the Westminster Parliament and maintains in force section 3(1) of the 1983 Act, notwithstanding the rulings in Hirst and Smith. There is no good reason why the petitioner should be excluded from the ban on voting which, pending the current procedures to amend it, continues to apply to the prison population. The petitioner's position would have the absurd result that the Scottish Ministers' hands would be tied whatever the dangers of leaving a convicted person at liberty on licence. Both Mr Cullen and Mr Moynihan observed, and Miss Carmichael agreed, that serious questions would arise as to the power of a court to impose a discretionary sentence of imprisonment. Counsel referred to various authorities, most of which are mentioned in the discussion below. Neither Mr Cullen nor Mr Moynihan moved their pleas to the competency. They both asked me to refuse the petitions on the basis that the revocation of the licence was lawful.
[5] The key question is whether the revocation was an act incompatible with article 3 of the first protocol. While there has been much discussion in the cases as to what is meant by "incompatible" in this context, I suspect that few, if any, relate to circumstances where there is such a disconnection between the nature of the act complained of and the content of the Convention right at issue. Section 17 of the 1993...
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