Protocol 1 (3): Right to Vote

The Governments 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 UK blanket ban on prisoners voting was introduced in 1870 at which time many groups of people were not allowed to vote including all women and people with mental health and learning disabilities. More recently the Representation of the People Act (2000) allowed the vote to remand prisoners, some with mental health problems and also some in prison for “technical” issues such as non-payment of fines. However, remand prisoners should never have been disqualified in the first place and the number of those imprisoned for “technical” reasons is small. So in effect our blanket ban remains, the UK being the only West European sttate to operate it.

In 1987 the European Court of Human Rights at Strasbourg exercised the “living instrument” principle: Modern Developments on the Convention right as above, and ruled that the right to vote like all other rights should be for everyone, i.e. universal, with any departure from this being proportionate i.e. with an aim (that can include crime control), and applied as lightly as possible. The Strasbourg court made clear in 2005 that individual countries can chose which groups if prisoners are banned, and that it is the cut and dried blanket ban that is unacceptable.

Various prisoners have taken their cases to European courts and since implementation of the HR Act to UK courts. John Hirst is a self educated lawyer. He battered his 62-year-old landlady to death with an axe and was convicted of manslaughter on grounds of diminished responsibility associated with a severe personality disorder. The Parole Board detained him beyond his sentence because of violent behaviours in prison including a violent attempt to escape The Strasbourg court ruled that the UK had violated his right t to vote in an election.

Other violent offenders have taken their cases to court e.g. Chester who raped and murdered his niece and McGeoch who committed a gruesome knife murder then set fire to the property to destroy the evidence. Their cases eventually reached the UK Supreme Court who ruled that in view of the seriousness of the crimes their rights were not violated, and declined to issue a Certificate of Incompatibility which would have signaled that the court believed it would be reasonable to change the law.

Then in 2015 the Strasbourg court ruled that the rights of 1015 UK prisoners were violated but refused to fine the UK in connection with these violations. This was taken as a signal that the court wants to the UK to remain in the Human Rights Convention system: Shortly afterwards the UK Appeal Court rejected this same group’s applications for investigation of their voting rights, holding that UK law is clear and that only Parliament has no power to change it.

Finally the UK Parliament itself debated the subject in 2012 resulting in a 234 : 22 vote in favour of the maintaining the blanket ban. Many august persons have argued for change and a special House of Lords / House of Commons joint committee concluded in 2013 that there was no rational basis for the blanket ban and recommended considering allowing prisoners to vote towards the end of their sentences. The joint committee also drew up a bill offering MPs the opportunity of voting for various degrees of relaxation of the blanket ban according e.g. according to their sentence length. That draft Bill remains for Parliament to take up when it considers it important.

So in contrast to Horncastle Art.. 6: Fair Trial where the European Court of Human Rights reached an agreement with the UK Supreme Court on the fair management of hearsay evidence, in the issue of prisoners’ right to vote our Parliament and the Strasbourg court are almost as far apart as ever.