Chester v Secretary of State for Justice & Anor

It is convenient to go directly to Hirst (No 2), to which I may refer simply as Hirst. The facts bore some similarity to those of the present appeal. The applicant had been sentenced to life imprisonment for an offence of manslaughter. As in our case, the tariff period fixed for the purposes of retribution and deterrence had expired and he remained in custody only because the Parole Board considered that he continued to present a risk of serious harm to the public. The applicant issued proceedings seeking a declaration that ROPA s.3(1) was incompatible with ECHR Article P1-3. The Divisional Court dismissed the claim on 4 April 2001. The Court of Appeal refused permission to appeal. On 25 May 2004 the applicant was released from prison on licence.

At paragraph 59 of its judgment in Hirst the Strasbourg court stated:

“The Court... would use this occasion to emphasise that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law...”

However at paragraph 60the Court indicated that “the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be given a margin of appreciation in this sphere”. Here, then, is something of a contrast.

As regards the Court’s observation at paragraph 60, it is worth recalling that the margin of appreciation is a doctrine developed by the European Court of Human Rights in specific recognition of its position as an international court whose task is to uphold the rights and freedoms guaranteed by the ECHR in many different jurisdictions, among which history, convention, and social conditions may vary very greatly, so that the ECHR cannot (and should not) be applied with absolute uniformity.

In Hirst the Court reviewed the position as regards prisoners’ suffrage in other contracting States of the Council of Europe (paragraph 33). In 18 States, prisoners retained the vote without qualification. In 13 they were absolutely deprived of it. In 12 there were limitations or qualifications. The Court also considered the position in Canada (paragraphs 35 – 37), where an absolute bar had been struck down by the Supreme Court, and in South Africa (paragraphs 38 – 39) where the Constitutional Court had held that in the absence of legislation which might qualify the position prisoners had the constitutional right to vote. It was clear, therefore, that there was a very considerable divergence of practice as regards prisoners’ suffrage among civilised States.

Equally, in paragraph 59 which I have cited, the Court emphasised the central place held by Article P1-3 in the ECHR ideal of democracy and the rule of law. In these circumstances it is with respect no surprise that the emphasis in the Court’s judgment in Hirst is upon three themes: (1) that in this area the individual States enjoy a wide margin of appreciation; but (2) the ECHR does not allow a blanket prohibition on prisoners’ access to the franchise; and (3) a prisoner’s disfranchisement will only be lawful if there is a “discernible and sufficient link” between the prisoner’s crime and his disfranchisement. I need only cite the following passages. On (1) – the margin of appreciation – the Court said this:

“61.

There has been much discussion of the width of this margin in the present case. The Court would re-affirm that the margin in this area is wide [references given]. There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision.”

But the margin of appreciation is not, of course, a carte blanche, and a blanket prohibition on prisoners’ access to the franchise is a step too far. On that topic – (2) above – the Court said this:

“70.

There is... 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.

82... [W]hile 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, section 3 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 Article 3 of Protocol No. 1.”

I should add that the repugnance of a blanket ban on voting rights to Article P1-3 is further supported by a short passage, on which Mr Southey placed some reliance, from the Strasbourg court’s judgment in Kiss v Hungary (Application No 38832/06), where the applicant was mentally ill and had been disfranchised:

“44.

The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law... The Court therefore concludes that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote.”

On (3) – discernible and sufficient link between the prisoner’s crime and his disfranchisement – the court said this:

“71...   Article 3 of Protocol No. 1, which enshrines the individual’s capacity to influence the composition of the law-making power, does not... exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations... 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. The Court notes in this regard the recommendation of the Venice Commission that the withdrawal of political rights should only be carried out by express judicial decision... As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.”

These three points are, in my judgment, the essential messages conveyed by Hirst. The reference to an independent court in paragraph 71 was to figure large in Mr Southey’s submissions. Its significance more clearly emerges when one turns to the Frodl case.

In Frodl the applicant was serving a life sentence for murder. The relevant Austrian legislation (s.22 of the National Assembly Election Act) provided, subject to certain qualifications, that a person convicted “of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote”. The critical passages in the Court’s judgment are paragraphs 28 and 34:

“28.

The Court observes at the outset that the present case has certain similarities with the case of Hirst... In that case the Court found a breach of Article 3 of Protocol No. 1 on account of Mr Hirst’s disenfranchisement as a prisoner following his conviction for manslaughter. While the Court accepted in principle that the member States had a wide margin of appreciation and left it to them to decide which restrictions on the right of prisoners to vote could legitimately be imposed, it nevertheless set out several criteria which had to be respected by member States in imposing such restrictions (see Hirst, cited above, §§ 61 and 82). Disenfranchisement may only be envisaged for a rather narrowly defined group of offenders serving a lengthy term of imprisonment; there should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of law but by the decision of a judge following judicial proceedings (ibid., §§ 77-78). In finding a breach of Article 3 of Protocol No. 1, the Court put much emphasis on the fact that the disenfranchisement operating under United Kingdom law was a ‘blunt instrument’, imposing a blanket restriction on all convicted prisoners in prison and doing so in a way which was indiscriminate, applying to all prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances (ibid., § 82).

34.

Nevertheless, the Court agrees with the applicant that section 22 of the National Assembly Election Act does not meet all the criteria established in Hirst (cited above, § 82). Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions (ibid., § 82).”

There is with great respect some difficulty in the interpretation of this decision. In paragraph 28, as we have seen, the Court opined that disfranchisement should preferably be imposed by the decision of a judge. It is to be noted in passing that the reference immediately following to paragraphs 77 – 78 of Hirst does not, on a close reading, support that proposition. Hirst at paragraph 77 refers only to the ordinary position in this jurisdiction whereby the judge decides whether or not to impose a custodial sentence, which would then engage ROPA s.3(1): he has no autonomous discretion whether or not to deprive the convict of the vote. But that is, so to speak, a sideshow. The real difficulty with the reasoning in Frodl lies in the contrast between the pitch of paragraph 28: “such a measure should preferably be imposed... by the decision of a judge”, and that of paragraph 34: “[u]nder the Hirst test... it is an essential element that the decision on disenfranchisement should be taken by a judge” (my emphasis in both quotations). Mr Southey places much emphasis on a supposed requirement that a prisoner’s disfranchisement must be subject to judicial decision. But the Court in Hirst did not declare such an “essential element”.

Judgment in this case was published on 23 November 2010, as I have said after the conclusion of argument in this appeal. Accordingly we invited the parties to submit written observations as to its effect, and we are indebted to counsel for the further short submissions which they have supplied.

The two applicants in Greens were serving determinate prison sentences. They claimed violations of Article P1-3 arising out of the authorities’ refusal to enrol them on the electoral register for domestic elections and for elections to the European Parliament. The Court plainly found it very unsatisfactory (see in particular paragraph 116, compare paragraph 105) that there had been so great a lapse of time since the decision in Hirst without legislative action by government to comply with that decision. At paragraph 115 they concluded that

“the respondent State must introduce legislative proposals to amend section 3 of the 1983 Act and, if appropriate, section 8 of the 2002 Act, within six months of the date on which the present judgment becomes final, with a view to the enactment of an electoral law to achieve compliance with the Court’s judgment in Hirst according to any time-scale determined by the Committee of Ministers.”

Mr Eadie indicated in his principal skeleton argument (paragraph 5) that a meeting of the Committee of Ministers had been scheduled for 1 December 2010; and it is right to note that all but a year earlier, on 3 December 2009, the Committee had expressed “serious concern” at the delay. The Court in Greens, deploying what is called its pilot judgment procedure, indicated that it would not be necessary to examine every other application raising a like complaint pending the respondent State’s compliance with the Court’s direction to bring forward legislative proposals within the six-month time limit.

Greens contains other features having some significance for the present appeal. Thus the Court referred to the Frodl judgment:

“113.

The Court observes that it was recently held in Frodl, cited above, § 32 [this may be mistake for paragraph 34], that, taking into account the particular circumstances, any decision on disenfranchisement should be taken by a judge and there must be a link between the offence committed and issues relating to elections and democratic institutions. On that basis, there was a violation of Article 3 of Protocol No. 1 in that case. However, the Court recalls that the Grand Chamber in Hirst declined to provide any detailed guidance as to the steps which the United Kingdom should take to render its regime compatible with Article 3 of Protocol No. 1, despite the Government's contention in that case that such guidance was necessary (see Hirst, § 52). As the Court emphasised in Hirst, there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision (see § 61 of its judgment). The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight...

114... [T]he Court considers that a wide range of policy alternatives are available to the Government in the present context. In this regard, the Court observes that the Government of the respondent State have carried out consultations regarding proposed legislative change and are currently actively working on draft proposals... Emphasising the wide margin of appreciation in this area (see Hirst, § 61), the Court is of the view that it is for the Government, following appropriate consultation, to decide in the first instance how to achieve compliance with Article 3 of Protocol No. 1 when introducing legislative proposals. Such legislative proposals will be examined in due course by the Committee of Ministers in the context of its supervision of the execution of the Hirst judgment. Further, it may fall to the Court at some future point, in the exercise of its supervisory role and in the context of any new application under Article 34 of the Convention, to assess the compatibility of the new regime with the requirements of the Convention.”

Some reliance was placed on other learning in the course of counsel’s submissions. I will refer to that as necessary in addressing the arguments.

Mr Southey’s essential position is that the court in these proceedings should mediate the recent Strasbourg decisions so as to indicate to Government what should be the essential content of the legislation that will amend or replace ROPA s.3 and EPEA s.8; and in doing so should in particular make it clear that the disfranchisement of a prisoner could lawfully be effected only by the discretionary decision of a judge.

I should say at once that even if I thought Mr Southey was right in principle, I should decline altogether to seek to interpret or “read down” ROPA s.3 so as to incorporate within it a judicial discretion as to the disfranchisement of prisoners. That would be to confer a new constitutional power on the judges, and it requires no authority to conclude that such a measure cannot be effected under the guise of interpretation, however supercharged by HRA s.3. It would be a legislative act and nothing less.

Mr Southey’s real case is that we should make a fresh declaration of incompatibility so as to clarify the law. I should first note a distinct submission at paragraph 3.46 - 49 of his principal skeleton argument. There he urged a violation not only of the Convention, but also of obligations owed by the United Kingdom under the law of the European Union had not been met. This was his “fundamental point” (paragraph 3.49.1). It was a point which received less emphasis in his oral submissions, and in my judgment rightly so. Burton J at first instance held (paragraph 42 of his judgment) that any offence to the law of the European Union arose only out of the domestic statutes’ incompatibility with the Convention; so that an appeal to EU law added nothing. In my judgment this was plainly right.

Mr Southey also submitted, and this was as I understood him at the centre of his case, that the law has moved on since the Scottish court made a declaration of incompatibility in Smith v Scott on 24 January 2007: not least by virtue of the decision in Frodl, with its emphasis on the need for judicial participation in the decision as to disfranchisement. However, while Mr Southey is right to say that Greens by no means suggests that Frodl was wrongly decided, I am inclined to agree with Mr Eadie that the judgment in Greens proceeds on the footing that Hirst is the governing authority. The enactment of a judicial power to rule as to prisoners’ disfranchisement would plainly serve the Convention standards; but I do not consider (and I would go this far in interpreting the Strasbourg cases) that the European Court of Human Rights has required that to happen.

In my judgment Mr Southey’s case is also, in part at least, driven by the long delay – still at present continuing – in promoting legislation to give effect to the decision in Hirst; or indeed to put into law the effect of the Scottish declaration of incompatibility. But the court has no role to sanction government for such failures. Under the HRA the Minister has no obligation to act on a declaration of incompatibility. If he does not, the complainant’s remedy is to take proceedings in Strasbourg where he will be able to deploy the domestic court’s judgment to the effect that his Convention rights have been violated. And failure by a Member State of the Council of Europe to give effect to a decision of the European Court of Human Rights sounds at the political level; it is as such not amenable to sanctions in the national courts. Of course if the failure were also to involve a violation of a constitutional fundamental recognised by the common law, the position would be entirely different.

In his written observations on the Greens judgment Mr Southey accepted that the Strasbourg court considers that national governments enjoy a wide range of policy choices in deciding how the Hirst principles should be applied. He submits, however, that this court should not thereby be deflected from giving a definitive ruling as to what the Convention requires as regards prisoners’ voting rights. He states, correctly, that we are in a different position from that of the Strasbourg court, which is an international court of last resort. He cites Lord Mance in Re G [2009] 1 AC 173 at paragraph 129:

“It would be contrary to the Strasbourg court’s purpose, and circular, if national authorities were to take the view that they should not consider any question other than whether a particular solution was within the United Kingdom’s margin of appreciation. Under the 1998 Act, the United Kingdom authorities (legislators and courts) have domestically to address the impact of the domestically enacted Convention rights in the particular context of the United Kingdom.”

Thus our courts will sometimes have to decide what the Convention requires in the United Kingdom here and now. There are cases where the here and now demands a legal solution; others where the law fixes the boundary of a territory within which is to be found a series of policy choices, all of them legal. Lord Mance with respect was not denying this latter class of case. And it is very important to recognise it; the price of not doing so would be to over-judicialise issues where, in a democracy, the elected arms of government should have a critical voice.

In my judgment none of these arguments, which I have briefly discussed, carries Mr Southey’s case forward. What he seeks from this court is, in short, an advisory opinion as to the legally proper content of forthcoming legislation. Is there scope for such a form of relief? Mr Southey cited Smedley [1985] 1 QB 657, but the argument there was different. It was that a proposed draft Order in Council would be altogether ultra vires the enabling statute. This court (Sir John Donaldson MR, Slade and Lloyd LJJ) dismissed the claim, but was plainly prepared to embark upon the question. Mr Southey however submits that this authority shows that the court is prepared in a proper case to grant pre-emptive relief in relation to proposed subordinate legislation; and given the advent of the HRA, should be prepared to do the same in relation to primary legislation.

The grant of an advisory opinion as to the legality of forthcoming legislation would have been a step too far for our predecessors in the common law no more than a generation or so ago. An advisory opinion as to what legislation, as yet undrafted, might properly contain or omit would have been quite beyond the pale. As it happens I can see a possible utility in such a jurisdiction in very carefully controlled circumstances, as our constitutional law evolves a strategic partnership between the branches of government. But not – emphatically not – in this case. I have already dismissed specific arguments advanced by Mr Southey. My broader reasons for rejecting his submissions in principle are as follows.

As I have indicated, the nature and scope of measures amending or replacing ROPA s.3 is likely to be acutely controversial. The controversy will not be about the law, but about the wisdom or unwisdom of social policy. There are deep philosophical differences of view between reasonable people upon the question of prisoners’ suffrage. The Secretary of State’s justification of the policy underlying ROPA s.3(1), cited by Kennedy LJ in the Divisional Court in Hirst,demonstrates as much. This is what he said:

“By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period. There is more than one element to punishment than forcible detention. Removal from society means removal from the privileges of society, amongst which is the right to vote for one’s representative.”

Opponents of this view would say, with some force, that it is unconstitutional to regard disfranchisement as part of a criminal’s punishment: his punishment is strictly what the law prescribes as punishment; and that is his incarceration and nothing more. They might also question the reasoning in the last sentence, which in one breath treats the franchise as a privilege, and in the next as a right. Given those points, there is no principled basis on which any imprisoned criminal should be deprived of the vote unless, perhaps, his crime has somehow subverted the democratic process. It has to be remembered (though I doubt if it would be put this way in the course of political debate) that the vote of the stupid, dishonest, or malicious elector is worth as much as anyone else’s.

But there are arguments the other way. It might in particular be said that a person convicted of very grave crime has so far distanced himself from the values of civil society that it would be a travesty of justice to allow him to participate in its governance. In such a case the prisoner’s disfranchisement is rightly regarded as an element in his punishment.

I articulate these points not to express my agreement or disagreement with any of them, but to demonstrate that the choices for government in amending or replacing ROPA s.3(1) are delicate and difficult, and are by no means to be concluded, as it were cut and dried, by the law. It is a political responsibility, and that is where it should remain. The law is that a blanket ban is impermissible, and there must be a discernible link “between the sanction and the conduct and circumstances of the individual concerned” (Hirst paragraph 71). The government will no doubt consider carefully whether compliance with these standards requires a decision-making role in specific cases to be accorded to the judiciary.

That is, I think, as much as this court can say. I would dismiss the appeal.