R (on the application of Chester) v Secretary of State for Justice

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Kerr,Lord Hope,LADY HALE,Lord Hughes,Lord Sumption,Lord Mance,Lord Clarke
Judgment Date16 Oct 2013
Neutral Citation[2013] UKSC 63

[2013] UKSC 63

THE SUPREME COURT

Michaelmas Term

On appeal from: [2010] EWCA Civ 1439; [2011] CSIH 67

before

Lady Hale, Deputy President

Lord Hope

Lord Mance

Lord Kerr

Lord Clarke

Lord Sumption

Lord Hughes

R (on the application of Chester)
(Appellant)
and
Secretary of State for Justice
(Respondent)
McGeoch (AP)
(Appellant)
and
The Lord President of the Council and another
(Respondents) (Scotland)

Appellant (Chester)

Hugh Southey QC

Richard Reynolds

(Instructed by Chivers)

Respondent

HM Attorney General

James Eadie QC

Jason Coppel QC

Tristan Jones

(Instructed by Treasury Solicitors)

Appellant (McGeoch)

Aidan O'Neill QC

Christopher Brown Tony Kelly

(Instructed by Taylor & Kelly)

Respondent

HM Attorney General

James Eadie QC

Ruth Crawford QC

Jason Coppel QC

(Instructed by Office of the Advocate General of Scotland)

Heard on 10 and 11 June 2013

Lord Mance (with whom Lord Hope, Lord Hughes and Lord Kerr agree)

Summary
1

Two appeals are before the Court by prisoners who were convicted of murder and sentenced to life imprisonment. In the case of the appellant Peter Chester, the tariff period fixed by the sentencing judge expired on 29 October 1997, but he has not yet satisfied the Parole Board that it is no longer necessary for the protection of the public that he should be confined. In the case of the appellant George McGeoch, the sentencing judge fixed a punishment part of 13 years which expired on 7 October 2011, but he has committed various intervening offences including violently escaping from lawful custody in 2008 for which he received a seven and a half year consecutive sentence. The result is that the earliest date on which McGeoch could be considered for parole is July 2015.

2

Both the appellants claim that their rights have been and are being infringed by reason of their disenfranchisement from voting. Chester's claim for judicial review was issued in December 2008 and relates to voting in United Kingdom and European Parliamentary elections. It relies on Article 3 of Protocol No 1 ("A3P1") as incorporated into domestic law by the Human Rights Act 1998 and directly on European Union law. Burton J and the Court of Appeal (Lord Neuberger MR, Laws and Carnwath LJJ), [2010] EWCA Civ 1439, [2011] 1 WLR 14346, dismissed Chester's claim. They held that it was not the court's role to sanction the government for continuing delay in implementing the European Court of Human Rights' decision in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 or to repeat the declaration of incompatibility issued by the Scottish Registration Appeal Court in Smith v Scott 2007 SC 345 or issue advice as to the form which compatible legislation might take. They held that European Union law raises no separate issue.

3

McGeoch's claim for judicial review was issued in February 2011 and related to voting in local municipal and Scottish Parliamentary elections. It relies solely on European Union law. The Extra Division dismissed the petition on the ground that European Union law only conferred a right to vote in municipal elections in a Member State on European Union citizens residing in a Member State of which they were not nationals. It also considered that Scottish Parliamentary elections were not for this purpose municipal elections. Before the Extra Division McGeoch was refused permission to amend to include a complaint relating to voting in European Parliamentary elections, but a corresponding amendment was permitted by the Supreme Court by order of 15 October 2012.

4

The following summarises my conclusions:

  • (A) Human Rights Act

    In respect of Chester's claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments (para 2), I would decline the Attorney General's invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 (" Hirst (No 2)") and Scoppola v Italy (No 3) (2012) 56 EHRR (paras 34–35) (" Scoppola"), but also decline to make any further declaration of incompatibility with the Convention rights (paras 39 – 42).

  • (B) European law

    • a. In respect of McGeoch's and Chester's claims under European law, which can at most relate to elections to the European Parliament and municipal authorities (paras 9, 45 and 46), I conclude that European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case-law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely (paras 46–47, 58, 59, 63–64 and 68).

    • b. Had European law conferred any right to vote on which McGeoch and Chester can rely:

      • i. the only relief that might have been considered would have been a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Community or Union law but that would not have appeared appropriate in the particular cases of Chester and McGeoch (para 72);

      • ii. the general ban on voting in European Parliamentary and municipal elections could not have been disapplied as a whole (para 73);

      • iii. it would not have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law (para 74);

      • iv. the Supreme Court could not itself devise a scheme or arrangements that would or might pass muster with European law; that would be for Parliament (para 74);

      • v. neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or EPEA section 8 (paras 82–83).

  • (C) European Court of Justice

    The resolution of these appeals does not necessitate a reference to the European Court of Justice. In so far as it raises issues of European law for determination, they are either not open to reasonable doubt or involve the application by this Court to the facts of established principles of European law (para 84).

  • (D) Both appeals fall therefore, in my opinion, to be dismissed (para 85).

Legislation
5

Entitlement to vote in parliamentary and local government elections in the United Kingdom is governed by the Representation of the People Act 1983 ("RPA"). Section 1, as substituted by section 1 of the Representation of the People Act 2000, provides that:

"(1) A person is entitled to vote as an elector at a parliamentary election in any constituency if on the date of the poll he-

(a) is registered in the register of parliamentary electors for that constituency;

(b) is not subject to any legal incapacity to vote (age apart);

(c) is either a Commonwealth citizen or a citizen of the Republic of Ireland; and

(d) is of voting age (that is, 18 years or over)…."

Section 2 provides in similar terms in relation to local government elections, but with the addition in (c) of the words "or a relevant citizen of the Union", to meet the requirements of what is now article 22(1) TFEU.

6

Section 3 of the Act, as amended by section 24 of and paragraph 1 of Schedule 4 to the Representation of the People Act 1985, disenfranchises serving prisoners, providing:

" Disfranchisement of offenders in prison etc

(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.

(2) For this purpose—

(a) 'convicted person' means any person found guilty of an offence (whether under the law of the United Kingdom or not), ….., but not including a person dealt with by committal or other summary process for contempt of court; …

(c) a person detained for default in complying with his sentence shall not be treated as detained in pursuance of the sentence…"

The effect of the last words of section 3(2)(a) and of section 3(2)(c) is to exclude persons imprisoned for contempt of court or default in paying a fine.

7

Entitlement to vote in European Parliamentary elections is provided domestically by the European Parliamentary Elections Act 2002 ("EPEA"). For present purposes section 8(2) and (3) are relevant, and they confer such entitlement on a person:

"(2) ….. 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, and—

(a) the address in respect of which he is registered in the relevant register of parliamentary electors is within the electoral region, or

(b) his registration in the relevant register of parliamentary electors results from an overseas elector's declaration which specifies an address within the electoral region."

The disenfranchisement enacted by RPA section 3 is thus extended to apply to European Parliamentary elections.

8

Under the Scotland Act 1998, section 11(1), the persons entitled to vote as electors at an election for membership of the Scottish Parliament in any constituency are those who on the day of the poll would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency. In effect, RPA section 3 is extended to Scottish Parliamentary elections.

9

A3P1 reads:

"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."

The European Parliament is for this purpose a legislature within the meaning of A3P1: see Matthews v United Kingdom (1999) 28 EHRR 361. So too is clearly the Scottish Parliament, under the devolution arrangements instituted by the Scotland Act, giving it wide-ranging legislative authority. Lord Hope described as such in AXA General Insurance Ltd v HM...

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