R (Chester) v Secretary of State for Justice and Wakefield Metropolitan District Council [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 28 October 2009 |
| Date | 28 October 2009 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/83/2009
Burton J
H Southey (instructed by Chivers) for C; J Eadie QC and J Coppel (instructed by the Treasury Solicitor) for the Secretary of State; P Coppel QC (instructed by Wakefield MDC) for Wakefield MDC.
Whether s8 European Parliamentary Elections Act 2002 could be read so as to allow serving prisoners to vote to comply with Art 3 of Protocol 1 ECHR; whether a declaration of incompatibility should be granted in relation to s8 or s3 Representation of the People Act 1983; whether any statutory amendment had to enfranchise post-tariff lifer prisoners.
C was a post-tariff mandatory lifer whose release had been declined by the Parole Board on the basis of the ongoing risk he posed. He sought to be enrolled on the electoral register to vote in the elections for the European Parliament. Under Art 190 of the Treaty establishing the European Community, universal suffrage is required; s8 European Parliamentary Elections Act 2002 indicates that the right to vote in European elections is that applicable to domestic elections. As s3 Representation of the People Act 1983 provides that serving prisoners cannot vote in domestic elections, the electoral registration officer declined C's application.
In October 2005, this blanket ban under the 1983 Act had been found by the ECtHR to breach Art 3 of Protocol 1 to the ECHR: Hirst (No 2)PLR[2006] 1 Prison Law Reports 220, (2006) 42 EHRR 41, which involved a post-tariff lifer; subsequently, a Scottish court had granted a declaration of incompatibility in relation to s3 of the 1983 Act. A consultation paper on proposals relating to prisoner voting was issued in December 2006 in response to Hirst; a further consultation paper was published in April 2009, which summarised the responses to the first paper and sought further views. It remained the government's intention to amend s3 of the 1983 Act, though the proposals being considered did not include enfranchising those serving 4 years' imprisonment or more (including life sentence prisoners, whether before or after tariff expiry).
In judicial review proceedings, C sought (i) a declaration of incompatibility in relation to s3 of the 1983 Act; (ii) a declaration that s8 of the 2002 Act could be read so as to allow all prisoners (or post-tariff life sentence prisoners) to vote in European elections, whether by use of s3 Human Rights Act 1998 or as a matter of compliance with European Union law, or (iii) a declaration of incompatibility in relation to s8; (iv) a declaration that any replacement for s3 of the 1983 Act would be incompatible with the ECHR unless it enfranchised post-tariff lifers.
1. The Claimant was sentenced to life imprisonment on 1 March 1978 for the rape and murder of his niece in 1977. The minimum term (tariff) has now expired, and he would be eligible for release but for a finding or findings by the Parole Board that he is too dangerous to release into the community. So he remains in custody as what is called a "post-tariff lifer". He is detained at HMP Wakefield, and in April 2005 he was informed by the Electoral Services Officer at Wakefield Metropolitan District Council (now the Second Defendant) that he could not be registered to vote for any UK elections, because, by virtue of s3 of the Representation of the People Act 1983 (as amended) ("the 1983 Act"), all prisoners who are in custody (save those who are on remand, and certain others not material for this purpose) are disenfranchised from voting in any UK election. Although he wished to challenge such position by judicial review at that stage, he was unable to obtain funding. He now does apply for judicial review, by application issued in December 2008, by reference to an asserted entitlement to vote in what were then the forthcoming European elections (although they have now taken place in June 2009), for which he has obtained permission from the single judge, in the light of developments since 2005, by reference to the decision of the European Court of Human Rights (Grand Chamber) in Hirst v UK (No 2) of 6 October 2005 [2006] 1 Prison Law Reports 220, (2006) 42 EHRR 41, which I shall describe.
2. The relevant statutory provisions, which provide for the disenfranchisement of which the Claimant complains, are, first, s3 of the 1983 Act, which governs the Parliamentary and Local Government franchise:
"(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence [or unlawfully at large when he would otherwise be so detained] is legally incapable of voting at any parliamentary or local government election."
3. Secondly, in relation to European elections, the citizens entitled to vote are defined in s8 of the European Parliamentary Elections Act 2002 ("the 2002 Act"):
"(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).
(2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region,"
4. Then there are provisions in relation to his address and his registration.
5. The 2002 Act was enacted pursuant to the UK's obligations under Art 190(1) of the Treaty establishing the European Community, which provides: "The representatives in the European Parliament of the Peoples of the States brought together in the Community shall be elected by direct universal suffrage" and the European Act concerning the election of the representatives to the European Parliament by direct universal suffrage, originally annexed to Council Decision 76/787 and now, as amended, incorporated into Council Decision 2002/772 ("the 1976 Act").
6. Recital 1 of this Decision provides that the amendment of the 1976 Act is to
"enable members to be elected by direct universal suffrage in accordance with principles common to all Member States while leaving Member States free to apply their national provisions in respect of aspects not governed by this decision."
Article 7 introduced a replacement Art 7 to the 1976 Act, which reads:
"Subject to the provisions of this Act, the electoral procedures shall be governed in each Member State by its national provisions. These national provisions, which may, if appropriate, take account of the specific situation in the Member State, shall not affect the essential proportional nature of the voting system."
7. The position is that, with certain exemptions, such as peers of the realm who are specifically enfranchised for European elections by the 2002 Act, the franchise is thus the same in European elections as it is for UK elections, as s8 expressly provides.
8. In Hirst, the Grand Chamber decided, upon the application of Mr Hirst, who was, like the Claimant, also a pre-tariff lifer, that the blanket ban on convicted prisoners in custody from voting in elections imposed by s3 of the 1983 Act was a breach of Art 3 of Protocol 1 of the European Convention of Human Rights ("ECHR"). The Grand Chamber however concluded that
"the rights bestowed by Art 3 of Protocol 1 are not absolute. There is room for implied limitations and Contracting States must be given a margin of appreciation in this sphere." (para 60 of the judgment)
The Court continued:
"61. There has been much discussion of the width of this margin in the present case. The Court would reaffirm that the margin in this area is wide."
9. As to the position of prisoners the Court's judgment included the following passages:
"70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.
71. The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned
82. Therefore, while the Court reiterates that the margin of appreciation is wide, it is 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, s3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, 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 must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art 3 of Protocol No 1.
83. Turning to the Government's comments concerning the lack of guidance from the Chamber as to what, if any, restrictions on the right of convicted prisoners to vote would be compatible with the Convention, the Court notes that its function is in principle to rule on the compatibility with the Convention of the existing measures. It is primarily for the state concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Art 46 of the Convention
84. In a case...
To continue reading
Request your trial
-
R (Chester) v The Governor for HM Prison Wakefield
...benefit of Legal Aid. The substantive application was heard by Burton J on 22 October 2009 and judgment was given on 28 October 2009: [2010] 2 Prison LR 1. Again, the relevance of those proceedings for present purposes is that he and those representing him (not, on this occasion, Ms Krause ......