XY v Scottish Ministers, Lord Advocate and Secretary of State for Scotland

CourtCourt of Session (Inner House)
Judgment Date27 April 2007
Neutral Citation

: [2007] CSIH 45

Court and Reference: Court of Session, Inner House, P694/07


: Lord President, Lord Nimmo Smith, Lord Eassie

Scottish Ministers, Lord Advocate and Secretary of State for Scotland

: O'Neill QC, Barne (instructed by Balfour & Manson and Taylor & Kelly) for XY; Cullen QC and Mure (instructed by the Solicitor for the Scottish Ministers) for the Scottish Ministers; the Advocate General, Moynihan QC (instructed by the Solicitor to the Advocate General for Scotland) for the Secretary of State.


: Whether it was lawful to recall a prisoner to prison when the effect was that they lost their right to vote in a pending election


: XY was a serving prisoner released on licence in May 2006. He was charged with further offences (which he denied), and his licence was revoked by the Scottish Ministers for breach of the condition that he be of good behaviour. He argued that the recall was ultra vires by virtue of s. 57(2) Scotland Act 1998, which prohibits members of the Scottish Executive breaching various rights in the ECHR, including the right to vote (Art 3 of Protocol 1). He noted that recall prevented him voting in the May 2007 elections to the Scottish Parliament sinces. 3 Representation of the People Act 1983 (as amended) prohibited serving prisoners from voting, which had been declared to be incompatible with the ECHR. He suggested that preventing his recall to prison was the only way to give him an effective remedy for the breach of his right to vote. The Lord Ordinary refused the petition for judicial review and XY appealed.


Lord President:

The circumstances

[1] The reclaimer was in July 1997 convicted of being concerned in the supplying of Class A drugs, contrary to s. 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to imprisonment for 4 years. Following a recommendation by the Parole Board for Scotland he was released from custody on licence in June 1999. In January 2003 he pled guilty to a further contravention of s. 4(3)(b) of the 1971 Act, namely, being concerned in the supplying of cocaine, another Class A drug. For this offence he was sentenced in February 2003 to 6 years' imprisonment. As a long-term prisoner he was eligible for consideration by the Parole Board for Scotland for release on licence at the halfway point of his sentence. Following a recommendation by the Board, to which the Scottish Ministers were obliged to give effect, the reclaimer was released on licence with effect from a date in May 2006, under s. 1(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The licence contained several conditions with which the reclaimer was required to comply. One such condition required that he "be of good behaviour and shall keep the peace". In February 2007 the reclaimer appeared at a sheriff court on a petition which specified 2 charges against him, namely, further contraventions of s. 4(3)(b) of the 1971 Act, involving cocaine and diamorphine. The dates of the alleged contraventions included the period between May 2006 and February 2007 when the petitioner was on licence in the community. It had been estimated by the Scottish Crime and Drug Enforcement Agency in respect of these charges that the reclaimer had been concerned in the supplying of Class A drugs with a "street" value of more than o2 million. The reclaimer denies these charges.

[2] On 27 February 2007 the Scottish Ministers served on the reclaimer a decision revoking his licence and recalling him to prison. Since then the reclaimer has been detained as a convicted prisoner in pursuance of that recall. The decision to revoke the licence and to recall the reclaimer to prison was taken at the instance of the Scottish Ministers purportedly in pursuance of their power under s. 17(1)(b)(ii) of the 1993 Act to take such action where revocation and recall are, in their opinion, "expedient in the public interest and it is not practicable to await [a recommendation by the Parole Board to do so]". The reasons given by the Scottish Ministers in the relative revocation of licence were:

"Breach of Condition 6 of your release licence which requires you 'to be of good behaviour and keep the peace'. You have been charged with offences contrary to s. 4(1) of the Misuse of Drugs Act. It is alleged that you have been concerned in the supply of Diamorphine and Cocaine, both Class A drugs. These charges relate to offences allegedly committed over a period that included the time when you have been on licence in the community. Scottish Ministers consider that this behaviour, when viewed in the context of your offending behaviour, indicates that you present an unacceptable risk to the safety of the public and that it is expedient in the public interest that your licence should be revoked and you should be recalled to custody."

[3] The reclaimer challenges the decision of the Scottish Ministers, maintaining that it was ultra vires by virtue of s. 57(2) of the Scotland Act 1998. He seeks production and reduction of it and "an order for [his] liberation from custody … under and in terms of s. 47(1) of the Court of Session Act 1988". The basis of that challenge is an allegation that to revoke the reclaimer's licence and to recall him to prison was in contravention of his rights under Art 3 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms. That Article 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."

[4] In Hirst v UK (No 2) (2006) 42 EHRR 849, [2006] 1 Prison Law Reports 220, the European Court of Human Rights, having noticed that it had previously established that Art 3 of the First Protocol guaranteed individual rights, including the right to vote and to stand for election, held that an automatic and indiscriminate blanket restriction on voting, applying to all convicted prisoners, irrespective of the length of their sentences and irrespective of the nature or gravity of their offences and their individual circumstances, must be seen as falling outside any acceptable margin of appreciation. It accordingly held, regard being had to the terms ofs. 3(1) of the Representation of the People Act 1983 (as amended) that, in respect of the applicant (a British citizen serving a term of imprisonment in England), there had been a violation of Art 3 of the First Protocol. In Smith v Scott 2007 SLT 137, [2008] Prison Law Reports 177 the Registration Appeal Court gave effect as a matter of domestic law to Hirst v UK (No 2). It held, having regard to s. 3(1) and to the decision in Hirst, that no election in the UK to any legislature would be compatible with the Convention; the Scottish Parliament was, it held, such a legislature. The court made a declaration that the terms of s. 3(1) of the Representation of the People Act 1983 were incompatible with the appellant's rights under Art 3 of the First Protocol.

[5] By virtue of s. 2(2) of the Scotland Act 1998 an ordinary general election falls to be held on the first Thursday in May of the fourth calendar year following that in which the previous ordinary general election was held. In this year that Thursday fell on 3 May 2007. The reclaimer appears in the Register of Electors for a constituency in Glasgow. Section 3(1) of the Representation of the People Act 1983 (as amended) provides that:

"a convicted person during the time when he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting in any parliamentary or local government election."

The reclaimer is a person to whom that provision applied at the date of the hearing of this reclaiming motion.

[6] Section 57 of the Scotland Act 1998 provides:

"… (2) A 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…

(3) Subsection (2) does not apply to an act of the Lord Advocate - "

  1. (a) in prosecuting any offence, or

  2. (b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,

which, because of subs(2) of s. 6 of the Human Rights Act 1998, is not unlawful under subs(1) of that section."

Subsections (1) and (2) of s. 6 of the Human Rights Act 1998 are in these terms:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if- "

  1. (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

  2. (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

[7] The reclaimer's petition for judicial review of the Scottish Ministers'...

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