Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Prisoner Voting Gambits: Disappointment all round in Chester, McGeoch and Moohan

Document Cited authorities 10 Cited in Related
Vincent
Date01 May 2014
Published date01 May 2014
DOI10.3366/elr.2014.0215
Pages289-295
AuthorAndrew Tickell
<p>The conflict between the UK Government and the European Court of Human Rights (“ECtHR”) on prisoner votes rumbles on. At the start of 2014 official figures indicate that cases concerning the right of prisoners to vote make up 80% (just over 2,000) of the 2,500 cases currently pending before the UK in Strasbourg.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>European Court of Human Rights, <italic>European Court of Human Rights: UK Case-Load 2013</italic> (2014) 3.</p> </fn> After the UK Supreme Court's decision in <italic>R (Chester) v Secretary of State for Justice</italic> and <italic>McGeoch v The Lord President of the Council and Another (Scotland)</italic> <xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p><a href="https://vlex.co.uk/vid/r-v-u-k-818728725">[2013] UKSC 63</a> (henceforth “<italic>Chester and McGeoch</italic>”).</p> </fn> in autumn 2013, the fate of these cases is no clearer.</p> Prisoner votes: an abiding controversy

In 2005, in Hirst v United Kingdom (No 2),3

(2006) 42 EHRR 41.

the ECtHR found that the UK's blanket ban on prisoner voting in parliamentary elections4

Representation of the People Act 1983 s 3.

 violated Article 3 of Protocol 1 (“A3P1”) of the European Convention on Human Rights (“ECHR”), which provides that

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 people in the choice of the legislature.

 Since then UK ministers and their supporters have pursued a range of strategies to resist enforcing the Strasbourg decision. These efforts have been more and less nuanced in character. At the populist end of the spectrum a bad-tempered debate and vote in the House of Commons in 2011 to ignore the decision, attended by a sustained campaign by parts of the British media against Strasbourg's “war on British justice”, have moved questions about the ECtHR's legitimacy up the political agenda

The Attorney General's parallel, but more sophisticated, litigation strategy has been less widely publicised. Striving to chip away at the substance of Hirst, Dominic Grieve QC intervened in subsequent Strasbourg proceedings, urging the court to recognise a wider margin of appreciation permitting states to impose blanket bans on prisoners voting and opposing the idea (articulated in Frodl v Austria 5

(2011) 52 EHRR 5.

) that decisions depriving prisoners of the vote should be made judicially, on an case by case basis, to satisfy the requirements of A3P1.6

Scoppola v Italy (No 3) (2013) 56 EHRR 19 at paras 75–80.

 At best, this strategy has been a qualified success. While the Grand Chamber's decision in Scoppola v Italy (No 3) retreated from the Chamber's conclusion that “it is essential that the decision on disenfranchisement be taken by a judge and be appropriately reasoned”, the ECtHR nevertheless reaffirmed the essential logic of Hirst, holding:7

Scoppola at para 90.

when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with Article 3 of Protocol No. 1.

 <italic>CHESTER AND MCGEOCH</italic>: THE ATTORNEY GENERAL'S <italic>HORNCASTLE</italic> GAMBIT

Frustrated in Strasbourg, the Attorney General's latest gambit saw him return to the UK courts in the cases of Chester and McGeoch, decided together before the UK Supreme Court.8

[2013] UKSC 63

The petitioners are serving prisoners. Chester sought review on A3P1 and EU law grounds of his exclusion from the franchise in European and UK parliamentary elections. McGeoch's claims concerned Scottish parliamentary and local elections, relying exclusively on EU law. In the leading judgement, Lord Mance concluded that EU law did not confer a general right to vote to parallel A3P1 and declined to make further reference to the European Court of Justice

Under the ECHR ground, the Attorney General withdrew the concession of ECHR incompatibility given in the courts below. With reference to the Supreme Court's decision in R v Horncastle 9

[2009] UKSC 14.

and section 2(1)(a) of the Human Rights Act 1998, he sought to persuade the court to decline to follow Strasbourg jurisprudence on prisoner rights on the grounds that the ECtHR had misapplied A3P1 and had neglected a fundamental feature of UK law. As Lord Phillips observed in Horncastle:10

Para 11.

The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT