R (on the application of Chester) v Secretary of State for Justice  UKSC 63 (16 October 2013)
Two prisoners serving life sentences for murder claimed that their rights had been infringed by reason of their prohibition from voting in elections. The United Kingdom Supreme Court unanimously dismissed both appeals.
In the United Kingdom, all prisoners currently serving sentences are prevented from voting under section 3 of the Representation of the People Act 1983. Further legislation extends that disenfranchisement to European and Scottish Parliamentary elections. Both the appellants are prisoners who were convicted of murder and sentenced to life imprisonment. They claimed that their disenfranchisement violated their rights.
Chester’s claim related to voting in the United Kingdom and European Parliamentary elections and relied on European Union law and article 3 of Protocol No 1 to the European Convention on Human Rights (A3P1) which was incorporated into UK domestic law by the Human Rights Act 1998. McGeoch’s claim related to voting in local municipal and Scottish Parliamentary elections and relied on European Union law.
The High Contracting Parties undertake to hold free and fair 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.
Lord Mance delivered the principal judgment with which the rest of the Court agreed. His Honour considered the decisions of the Grand Chamber of the European Court of Human Rights in Hirst v United Kingdom (No 2) (2005) EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 in which it was acknowledged that disenfranchisement of convicted serving prisoners “may be considered to pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law”. The earlier decision, Hirst (No 2), had found that the UK’s ban on prisoner voting was a “general, automatic and indiscriminate restriction on a vitally important Convention right” which fell “outside any acceptable margin of appreciation and was incompatible with A3P1”. Those principles were reiterated in Scoppola; however, it was held in that case that a scheme preventing prisoners serving sentences of three or more years from voting was compatible with A3P1.
Lord Mance noted that the UK Parliament is presently considering the relevant legislation's consistency with Hirst (No 2) and Scoppola and on that basis, the Court did not have a further role in making a declaration relating to incompatibility.
European Union law
It was submitted that Hirst (No 2) and Scoppola applied to incorporate into European Union law the principles they espouse in relation to voting in European Parliamentary elections. However, Lord Mance found that the case law does not suggest that the European Treaties confer on citizens of the Union an individual right to vote of which the scope and conditions are measured by reference to ECHR jurisprudence. Eligibility to vote under European law was regarded to be a matter for national Parliaments and one of considerable national interest. While the ECHR jurisprudence operates as the relevant control, the European Commission involving itself or taking issue with voting eligibility in Member States would not only unnecessarily duplicate control at the European level, it could also lead to further conflict and uncertainty.
Observations of Lady Hale
The Court has a duty to say if the franchise unjustifiably excludes certain people from voting and to grant them a remedy. As parliamentarians derive their authority and legitimacy from those who elect them, it is to those electors that they are accountable. They have no relationship with the disenfranchised and do not represent them. Though the threshold for disenfranchisement of prisoners was the fact of custody and there may be an element of arbitrariness, custody was the “unique identifier of offending so serious as to justify exclusion from the democratic process”. It was clear from Scoppola that a scheme depriving persons sentenced to life imprisonment, as were the appellants, of the right to vote would be upheld.
Observations of Lord Clarke
In the recent decision of the ECHR of Anchugov and Gladkov v Russia  ECHR (4 July 2013), the Court accepted that disenfranchisement of prisoners, as in Scoppola, pursued the aims of enhancing civic responsibility, respect for the rule of law and ensuring the proper functioning of civil society and democracy. Those aims could not therefore be considered incompatible with A3PI. The Court remained of the view though that a blanket ban is disproportionate and indiscriminate because it applies automatically to all prisoners irrespective of the nature and gravity of their offence or the individual circumstances of the offender. This jurisprudence can be considered settled and should be followed by the Supreme Court.
Observations of Lord Sumption
All democracies will determine the franchise by domestic laws defining who is entitled to vote in inclusive terms. It was not possible to read down the UK provisions so as to allow voting rights to any category of convicted prisoner. The exclusion of convicted prisoners from the franchise is not universal but not uncommon in mature democracies. Fundamental to the exclusion of convicted prisoners from the franchise is the principle that sentences of imprisonment are imposed only for the more serious of offences.
The Court unanimously dismissed both appeals.
This is the most recent decision in a line of authorities confirming the importance of the right to vote and the necessity that restrictions on it not be arbitrary and indiscriminate. However, in contrast to much of the political discussion of the issue in the UK, the Supreme Court supported the European Court’s reasoning in Hirst and Scoppolla.
The Court noted that the UK Parliament is currently considering the Voting Eligibility (Prisoners) Draft Bill, published on 22 November 2012. That bill sets out three options for bans on voting by prisoners:
- those sentenced to four years or more imprisonment;
- those sentenced to more than six months imprisonment; or
- a general ban, as is the current position.
There is no consideration being given to a complete removal of the ban and allowing all prisoners to vote in elections.
In Australia, prisoners serving a sentence of three years or more are prohibited from voting. The High Court decided in Roach v Electoral Commissioner  HCA 43 that the blanket disenfranchisement of all prisoners was contrary to the Federal Constitution, which requires members of parliament to be “directly chosen by the people”. Restrictions on voting eligibility in Australia, at least at the federal level, must be in pursuit of legitimate goals and be proportionate or “appropriate and adapted” to achieve those goals.
This decision is available online at: http://www.bailii.org/uk/cases/UKSC/2013/63.html
Georgia Drake is a lawyer at Arnold Bloch Leibler