Electing the Electorate: The Problem of Prisoner Disenfranchisement
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00591.x |
| Published date | 01 May 2006 |
| Date | 01 May 2006 |
CASES
Electing the Electorate:The Problem of Prisoner
Disenfranchisement
Susan Easton
The issue of prisoner disenfranchisement is examined in the light of the recent decision of the
European Court of Human Rights in Hirst vUK. It is argued that the arguments in favour of
denying prisoners the right to vote lack plausibility. Prisoner disenfranchisement cannot be
coherently defended on the justi¢cations of punishment or on the grounds of risk. On the con-
trary, matters of principle and policy considerations favour the re-enfranchisement of convicted
prisoners.
INTRODUCTION
The recentdecision in Hirst vUK
1
is the culmination of a long-standing debateon
whether convicted prisoners should have the right to vote. It has raised a number
of issues which have generated sharply diverging views: for example, the aims of
punishment; who should formulate penal policy; and questions regarding the
nature of the social contract. Hirst also raises the question of whetherthe prisoner
should lose rights beyond those necessary for security when incarcerated.These
issues extend beyond the immediate issue of voting rights, and touch on those
public concerns about the role and extent of punishment which have been
increasingly important in£uences on penal policy in the UK. Indeed in the case
of Hirst, theUK’s defence of the prohibition on prisoner voting rested in part on
the claim that allowing prisoners to vote would cause o¡ence to the public.
The disquali¢cation of prisoners is well-established in English law and the
notion that it is morally right and pol itically e⁄cacious to disenfranchise con-
victed prisoners is considerably older, being found in the law of Ancient Greece
and Rome.
2
Disenfranchisement can be seen as the last vestige of the notion of
‘civil death’ in relation to prisoners. In the past,this extended well beyond the loss
of voting rights, and included t he loss of property rights, family rights and free -
dom of movement. Forexample, in feudalEngland, felonswere forced tosurren-
der their property rights to the Crown as part of their punishment. Such
forfeiture of assets as an additional penalty for crime or treason was not abolished
until the 1870 Forfeiture Act, but that Act retained the disquali¢cation fromvot-
School of Social Sciences and Law, Brunel University, Uxbridge,UK
1Hirst vtheUnited Kingdom(No.2), Application No.74025/01, hereafter cited as HirstvUK (6 October
2005).
2 See, for example, I.Drapkin Crime and Punishmentin the AncientWorld(Lexington, Mass., Lexington
Books,1989), andT. Sellin Slaveryand the Penal System(New York:Els evier,1976).
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(2006) 69(3)MLR 443^461
ing, which has been the subject of challenges in the UK and other jurisdictions
over a century later.
While the Forfeiture Act removed these fundamental disquali¢cations, there
has been a tendency in recent years for the number of civil disquali¢cations to
increase, to extend, for example, to employment bans and driving bans for con-
victed felons.This expansion was criticised by von Hirsch and Wasik
3
in 1997, as
ill-conceived and hard to justify, as civil disquali¢cations are potentially more
damaging in their impact than formal penal sanctions. But since then, in fact,
the number has increased further with a raft of measures designed to deal with
sex o¡enders, including sex tourists.
4
Hirst vUK concerned the validity of the prohibition on voting for convicted
prisoners found in section 3 of the Representation of the People Act1983
5
,which
provides that ‘(1) A convicted prisoner during the time that he is detained in a
penal institution in pursuance of his sentence . . . is legally incapable of voting at
any parliamentary or local election.’ Some categories of prisoners, including those
in prison forcontempt of court(s 3(2)(a)) and for non-payment of ¢nes (s 3(2)(c)),
retain theright to vote. In addition, defendants remandedin custody mayexercise
their r ight to vote while incarcerated.
6
Aside from these narrowly drawn excep-
tions, all prisoners are prevented from exercising their rightto vote while serving
their sentences.
During his period of incarceration, Hirst was prevented from exercising his
democratic right to vote because of the UK’s ban on convicted prisone rs voting
in elections.This, he argued, constituted a violation of Article 3 of Protocol No. 1
of the EuropeanConvention on HumanRights. Hirst was sentenced to aterm of
discretionary life imprisonment, having pleaded guilty to manslaughter on the
ground of diminished responsibility. At no point during his period of incarcera-
tion was he permitted to vote.
Hirst’s claim was rejected by the Divisional Court
7
and he was refused the right
to appeal. But Hirst successfully challenged the prohibition in the European
Court of Human Rights.
8
At the ¢rst hearing of the Chamber, in December
2003
9
, the Court found that the blanket ban was disproportionate, applying to a
large group of people regardless of the gravity of the o¡ences. The Chamber
accepted that there was a wide margin of appreciation for states to determine
3 A. von Hirsch and M.Wasik’,‘Civil disquali¢cations attending conviction:a suggested conceptual
framework’ 56(3) CambridgeLaw Journal (1997)pp 599^626.
4 For example, new civil preventative orders, namely, Sexual O¡ences Prevention Orders, Foreign
Travel Orders and Risk of Sexual Harm Orders, respectively, sections104,114 and123 of the Sexual
O¡ences Act 2003.
5 As amended by the Representationof the People Act1985and the Representation of the PeopleAct
2000.
6 Section 5 of the Representation of the People Act 2000, which came into force on16th February
2001,made it easier for remand prisoners to register to vote, by allowing them to use either their
place of detention or the address where theyhad previously lived as the address for registration.S 5
inserts a new s 7A into the Representation of the People Act 1973.
7 4th April, 2001.
8 Hirst al so claimedthat the ban breached Articles 10and 14,but as the Grand Chamber decided the
matter under Article 3 of Protocol No.1, it did not consider that a separate issue arose under
Articles 10,14.
9 Publishedin March 2004.
The Problem of Prisoner Disenfranchisement
444 rThe Modern LawReview Limited 2006
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