Voting Ban On Prisoners: The Debate And Legal Implications

Historical Context of the Ban on Voting Rights for Prisoners

Discuss about the Article for Voting Ban On Prisoners?

The Government has the scope or rather the opportunity through the constitutional reform program, to given end to the outdated punishment of the civic death which dated back to the Forfeiture Act 1870. This in turn will bring the United Kingdom into line with a huge majority of the countries in the European Council and facilitate a modern or a different type of prison system to stress on the civic rehabilitation and responsibility but not the social elimination[1]. There were no central problems in enabling the victims for voting[2]. Therefore, there was a rule set out by the Electoral Commission to make such a mechanism through which the prisoner will be enabled to cast their vote. So the government instead of dealing with the compensation claims and other matters should give a ban on this uncivilized and outdated system of not allowing the prisoners to vote[3]. However, it is important to discuss how appropriate and valid is the government’s decision to ban the voting rights of prisoners.

In the case of Stockale v. Hansard, the Parliament of the United Kingdom challenged the privilege of parliament that became unsuccessful thus, leading to legislative reform[4]. The Court in this case concluded that the Commons was a court superior to any court of law and  both the Houses of Parliament have the authority to make or unmake laws and that no resolution can be passed to decide the nature of privilege. In short, it meant that Each House (Commons and Lords) was the sole judge of its own privileges. The judgment in the said case also concluded that a resolution of the House declaratory of its own privileges could not be questioned in any court of law. Similarly, in the case of King v. Lake[5], the plaintiff and the defendant were working on removing the automobile transmission where it suddenly fell off and fractured the left arm of the plaintiff. The Supreme Court was of the view that they have an approval for the instruction which was mandatory in anticipating the future changes in instructions on this subject. In the case of Gridley v. Johnson[6], the Supreme Court stated that the rule of “similar localities” has outlived many usefulness and the rule has changed the substantive law of the State in this respect. The trial court and the attorneys of the state continue to use the deletion of the word and they agree with the contention of the defendant. In the case of Smile v. Lawson[7], the trial Court was of the opinion that, “having given an approved instruction the use of which at the time was mandatory may not be convicted of error in not anticipating future changes in instructions on this subject.”

Legal Implications of the Ban on Voting Rights for Prisoners

In the case of Scoppola v. Italy[8] makes a clear view of the fact that the sentenced prisoners of United States have the right to cast their votes. It points out the principles set out in the judgment of Hirst (no2)  that the people who were sentenced to any term, it may be years, months or anything and also the situation, is not well-matched with Article 3 of the Protocol No 1 of the European Conventions on Human Rights. The margin of appreciation or the margin of state discretion is a doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights, to judge whether a state party to the European Convention on Human Rights should be sanctioned for derogations.

 In the general view, people in the prison are moved to drop their right to independence, not their personality. The UK’s old-fashioned objection on the sentenced prisoners contains no pace in the modern democracy and is morally and legally unsustainable. The official and the experienced governors of prison, present and past bishops to the prisons, electoral commissions, chief inspectors, legal experts and the other European Governments believes that the prisoners should be able to implement their civic responsibilities. As a result, the European Court had made a clear judgment about the legal obligations of UK and to overturn the ban on this system. The UK's objection on the ban on prisoners voting rights remains constant in March 2004 even it was unlawful. The law is a leftover or the remains of the 19th century which stay back Forfeiture Act of 1870 which was according to the concept of the Civic death, a punishment based on the removal of the rights of the citizens. Since the past eight years, when the ban on the giving of votes was stated unlawful, the government of UK has frequently detailing the implementation of the opinion of the European Court. Depending upon the ruling of the European Court in 2004, the case of Hirst (2), in 2005 the verdict of the Grand Chamber, that the current objection of the UK’s on allowing all the prisoners from selection contravenes Article 3 of the Protocol No one of the European Convention on Human Rights[9]. Further, the Labor government prepares two types of stage consultation procedures on behalf of the change in the policy. In June 2010, the Council of Committee of Europe uttered deep regret that there was no implementation of the ban on the right time for 2010 general election[10]. On the month of December of the same year, there was a declaration from the side of the government that it would bring legislature to permit those prisoners sentenced not less than four years, the right to cast the vote in the parliamentary of UK and the parliament elections of Europe.  Until and unless the judge present on the House considered the case to be in appropriate. On the first day of March 2011, the latest ECHR was referred by the government of Europe dealing with the issue, the MT judgments and the Greens, to the Grand Chamber of Human Rights Court of the European Court. This in return made an appeal before the Court’s decision that the United Kingdom must introduce the legislation for six months from the 1st of March[11]. On September 2011, the government declares that it have made an increase in the time limit to acquire details of the referral of Scoppola v Italy (No 3) to the Grand Chamber. The government, therefore, was notified that the court had permitted an increase the period of six months starting the judgment day of Scoppola[12]. Sections 4 and 10 of the Human Rights Act 1998 enable the Human Rights Act 1998 to be effective in the United Kingdom. Section 4 permits courts to grant a declaration of incompatibility which makes it impossible to use section 3 for interpreting primary or subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act. In these cases, interpretation to comply may conflict with legislative intent. It is considered a measure of last resort. A range of superior courts can issue a declaration of incompatibility. In Reg. v. Home Secretary, Ex p. Brind, the doctrine of "proportionality" was highlighted. The Court held that that the European Convention for the Protection of Human Rights and Fundamental Freedoms was not part of English domestic law.

Recent Developments and Proposed Legislation

The right to vote is not applicable for the prisoners who are serving a sentence in the United Kingdom. This prohibition was protected in the Representation of People Act, 1983 in section 3, which was later amended in the year 1985[13]. On 22 November 2012 the Government published a draft Bill, the Voting Eligibility (Prisoners) Bill, for pre-legislative scrutiny by a Joint Committee of both Houses. The Committee published its report on 18 December 2013 and recommended that the Government should introduce legislation to allow all prisoners serving sentences of 12 months or less to vote in all UK Parliamentary, local and regional European elections.

This law for the prisoners of banishment from voting was first included in the Forfeiture Act 1870 in the chapter of ‘civic death'. The rights of citizenship were denied to the prisoners. However, this act was amended in the year 1969 by the Representation of the People Act, which stated that the convicted prisoners would be temporarily prohibited from voting as long as they are in the prison, which was an extension of the Criminal Law Act, 1967. There was still a case of voting by the prisoners of UK between 1948 to 1969 because of the Draft Voting Eligibility (Prisoners) Bill.

In the year 1999, it was identified by the office of the Working Party on Electoral Procedures that the prisoners who are unsentenced and detained on remand should be disenfranchised from the registration and rights to vote. The Representation of the People Act 1983 stated that prisoners who are in the penal institution could not have the rights to vote, as the institution shall not be identified as a residential address for electoral registration purpose. Therefore, the prisoners cannot be registered as electors as they cannot provide any other alternative address during their stay in the institution[14]. 

The Working Party came up with the proposal that there is no point in depriving the unconvicted prisoners from the voting rights and stated that the unconvicted prisoners who are on remand should be considered as electors as per their original registers till they are sentenced undergo changes and therefore, the committee proposed that these remanded prisoners should be registered as other electors as against their primary address. The Working Party identified the situation that in case of a prisoner found guilty in a court case it will not be possible to establish the seriousness and nature of the offence without the sentence benefits that justifies the sentence. Therefore, no recommendation was made for this type of prisoners[15].

Representation of the People Act 2000 implemented the recommendations, which were for the remand prisoners. The condition of the disenfranchised prisoners did not change in this act as it was amended in the Representation of the People Act 1983.

The later governments have put forward the fact that the moral authority for voting cannot be implemented on the prisoners who have been sentenced imprisonment because of serious crimes. This issue was discussed in 2003 in the House of Lords and was questioned to the Home Office Minister[16].

The Prison Reform Trust has been long dealing with this issue of for the rights of the prisoners to vote. Its Prisoners and the Democratic Process in December 1988 argued the fact that the rights to vote increases the social responsibility sense among the prisoners and so they insisted that all the prisoners in UK should be provided with this right to vote. They also asked the Select Committee of the Home Affairs in 1997-98 to inquire in to the Electoral Law and Administration.

The Prison Reform Trust and The National Association of Ex-Offenders introduced a program named as Barred from Voting for securing the voting rights of the prisoners[17]. They raised the argument, which stated that providing with this voting right for the prisoners will enable them to take responsibilities which are a part of their citizenship. This will also make the politicians focus more on the prisons and therefore the level of penal policy and prisons will be elevated. Various noted politicians and diplomats joined the campaign like Lord Douglas Hard, Baroness Kennedy and Simon Hughes, which fortified the objectives of the group[18].

In March 2005, the debate reached great heights when the rights to vote for the prisoners were supported by Charles Kennedy, who was the then leader of the Liberal Democrats. He proposed that every citizen of UK is an individual citizen and all of them should have the basic citizenship rights, which includes the right to vote.

During the election campaign in 2005, Alan Milburn criticized the views of Charles Kennedy stating that the convicted criminals should not be allowed to vote and has their choice in matters that govern the policies of Great Britain[19].

The Conservatives and David Davis, the secretary of Shadow Home, opposed the views of Charles Kennedy stating that prisoners should not have the priorities to choose the ruler of UK. Rather the victim of the crimes committed by those criminals should be favored and the right to vote for the criminals and prisoners should never be implemented for maintaining the balance of the justice system for the criminals[20].

There is no ban for the prisoners from casting their votes in the 18 European countries like Ireland, Finland, Denmark, Sweden, Switzerland and Spain. In some of the countries, the right to vote depends on the sentence duration of type of the committed crime. In some countries, they are allowed to vote only during specified elections. France has the constitutional rule wherein the political rights of the prisoners get forfeited in case of certain crimes. Germany has the rule that in case of crimes, which affect the democratic orders or state integrity, the voting rights of the prisoners are terminated[21].

The European countries, which have a ban like UK on the voting rights of the prisoners, are Estonia, Bulgaria, Hungary, Liechtenstein and Georgia. Japan and Russia have a complete ban on voting of their prisoners. Australian prisoners have the right to vote in only two of the states out of seven. The United States have a much stringent rule, which bans some of the prisoners from casting their vote even after their release[22].

Ireland had legislation passed in 2006, which allowed every prisoner in the country by post in the respective constituency of their permanent address. Cyprus also allowed a complete right to vote in the same year and came out of a previous ban on their voting.

 Three of the prisoners of UK in the year 2001 had raised their voice against the decision of Electoral Registration Officer regarding their electoral registration. However, their applications were dismissed in the High Court. It was declared that the voting rights of the prisoners have to be decided by the Parliament and it is not a matter to be decided by the courts.

The case of John Hirst was given the judgment on 2004 on 30^th March by the European Court of Human Rights. Hirst, who was sentenced for life for murder, challenged the decision of the ban on voting[23]. He lost the case in High Court in 2001 on the similar issue and refilled his application. In the said case the court ruled that a blanket ban on British prisoners exercising the right to vote is contrary to the European Convention on Human Rights.

The European Convention on Human Rights states that the elections should be free for expressing the people’s opinion in the legislation choice. Based on this fact seven judges raised the issue that the voting rights of the prisoners is being breached as per this law. In context to this, the Department of Constitutional Affairs stated that the prisoners should be banned from voting because after committing a serious crime they should not have the right to choose their government.

On 2005, the European Court of Human Rights found that the protocol 1 of article 3 has been breached by the ban of rights of the prisoners to vote. However, the court stated that the convicts have the all fundamental freedom and rights as provided by the law. However, they are not allowed liberty rights. Therefore, it was clear that the prisoners have lost their rights to vote only because they have been detained. The people who have been convicted because of a serious offence and whose activity seriously damaged the democratic foundation should not be sanctioned the legislative liberties to prevent arbitrariness[24].

The court stated that the ban on voting applied to 48,000 prisoners. These included only those prisoners who were found to have committed a serious crime and did not include those convicts who have been detained on remand. 48,000 was a figure big enough to neglect and included a variety of sentences ranging from one day to life sentence and minor crimes to serious offences. However, while declaring the sentences for these criminals, nothing was mentioned or referred either regarding the ban to vote for these criminals collectively or in individual cases. No debate was raised by the legislative members regarding the standards of human rights and current penal policy for maintaining the restriction on the prisoners' rights to vote. However, restrictions if any has to be imposed will be decided by the parliament, as it is not a matter to be settled by the court[25].

The Representation of the People Act 2000 granted the permission to vote for the prisoners in remand, but no significant output was achieved out of this order as the ban continued on the prisoners towards their rights to vote.

In a famous United Kingdom case law Scoppola v Italy, the European Court of Human Rights held that there was a violation of the Human Rights Protocol because a voting ban was imposed on an individual after he was criminal convicted. The individual claimed that his rights under Human Rights laws were violated and the European Court upheld the claim and stated that the said proposed ban was unjustified.

In the said case, the plaintiff Franco Scoppola was sentenced with life imprisonment in 2002 for the charges of murder, attempt to murder, ill-treatment and illegal possession of firearms. Under the Italian law, the plaintiff life sentence was followed by a lifetime ban from public office, which means a lifetime ban from voting rights in Italy[26]. The first appeal from the plaintiff apposing the ban was unsuccessful however, his life prison was reduced to 30 years in 2010.  Therefore, the plaintiff stated that the life imprisonment sentence passed earlier had made him ineligible to vote for the entire life. The plaintiff stated that the ban on voting rights is an additional punishment which achieves nothing in its outcome. It lacks to protect the public order and safety and is a poor deterrent to filter and stop crime. It is not a correct method to treat the offending behaviour of prisoners and lacks to provide appropriate rehabilitation of the prisoners.

While deciding the said case, the Court held that there was no violation of the Article 1 and 3 of the Human Rights Protocol and Convention. The reason given by the court was that in Italy only prisoners who are sentenced to prison selected offences for a period of 3 years or more were falling under the blanket of prisoner who lost their right to vote. Therefore, only a certain offences against the State and the judicial system made a prisoner lose his voting right. As there was no general discrimination, the Court held that the said Italian law did not violate a Human Rights Convention or Protocol. In the said case, The United Kingdom government was given a leave as a third party to make submissions about the fact that each State has a wide range of discretion in determining how it should regulate ban which include determining what type of offences committed will attract lose of voting rights along with the decision on disenfranchisement. It is for the Government to decide whether disenfranchisement should be done by formulating a law or by resolving each case as and when it comes to the Courts. In 2011, along with two, more cases from a different country were appealed to the Grand Chamber and the previous judgement was upheld. However, this explains why there is a rise in the case concerning the same matter in United Kingdom[27].

However, there was a rise in case laws concerning the said matter following the decision of the recent case law decided by the European Court of Human Rights. The judgement of Hirst relating to the voting rights of the prisoners created many complex issues concerning the matter.  The buzz after the said judgement made it clear that the United Kingdom government will have to amend the Section 3 of the Representation of People Acts 1983[28]. This amendment can be either in the form of a new legislation or by issuing a remedial order to comply with the judgement passed by the European Court of Human Rights in various cases concerning voting rights of prisoners which were considered unlawful. Thus, the option for changing the law was being considered.

Enfranchise prisoners sentenced to less prison term – The United Kingdom need to adopt a policy, which is popular among the other European nations to enfranchise prisoners sentenced to less than a specified term. This means that the prisoner is allowed to retain their voting rights if their prison sentence is less than a specified term like 3 years or 5 years and the prisoners who are given longer sentences can be enfranchised. The proposed draft gave an example of European countries which have adopted the said policy like in Belgium a prisoner who is sentenced for a period of more than 4 months are not eligible to vote and in Australia the specified period extends to one and a half years[29].

Allow Court to determine on withdrawal from voting rights – One of the best methods to resolve the matter of ban of voting rights of the prisoner is to let the Court decide while sentencing a prisoner whether the prisoner is entitled to a ban on voting rights. This can be implemented in two different ways, the first being that legislation is passed which allows the Judges to decide whether even after a disenfranchisement procedure; the prisoner should retain his right to vote. The second method would provide the power on the Judge to determine the prisoner to lose his voting rights despite the availability of no general disqualifications. However, the only drawback in this method is that it increases the burden on the Courts, Judges and the Judiciary in the United Kingdom.

Right to vote for all tariff-expired life sentence prisoners – The prisoners who are sentenced for life-imprisonment as they presence is considered a serious threat to the public and country at large are not required to be enfranchised as the process is proving voting rights to such dangerous people will not make any sense.

However, there are some prisoners who are of a certain category which is not required to enfranchise either due to the nature of their offence or due to the nature of their health under which crime was committed by them. For example, prisoner who are sentenced due to their offence relating to elections. According to the present law, prisoners who receive sentence due to their offence in relation to election automatically lose their right to vote under the current laws of the ban on prisoners voting. The United Kingdom legislation has penalties and punishment relating to election offences, which include the ban on voting. The United Kingdom government has stated earlier also does such custodial punishment also violate Human Rights.

Another category of prisoners who are detained by committing offences in the mental hospital is a matter of concern in deciding the issue faced from the ban on voting rights of prisoners. Under section 3A of the Representation of the People Act 1983, any prisoner detained in the mental hospital is refrained from registering to vote in the United Kingdom. The Government questions the utility of extending voting rights to people who are considered mental or people with low or no reasoning[30].

The response of this proposal was published in the year 2009, which stated that the United Kingdom government to meet the requirements and to comply with the judgements of the European Court of Human Rights have to introduce a little enfranchisement of the sentenced prisoners in the custody. The length of the prisoner's sentence can be determining the eligibility of the prisoners by creating a threshold, however; the final call on the said legislation should rest on the decision of the parliament.

The new suggested plan made recommendations, which stated that prisoners who are sentenced with a sentence of less than one year or 2 years or 4 years would automatically retain their right to vote however the same will be subject to certain exceptions which will be based on the type of offence[31]. However, prisoners who have been sentenced twice but less than four times can apply to the Court to be entitled to the right to vote however the same is possible only after valid application and permission granted by the Court. However, prisoners who are sentenced for a term of more than 4 years will not be entitled to vote under any circumstances[32].

On 6 September 2011the government announced that the European Court of Human Rights has given them a period of 6 months to adopt a proper legislation concerning the matter of voting rights of prisoners. The United Kingdom government was informed that it has received an extension of 6 months to adopt appropriate legislation six months from the date of the decision of the Scoppola case. However, the European Court of Human Rights ruled that the prisoners who are serving a sentence for serious offences like murder, rape and possessing arms illegally are permitted not to be given the right to vote without violating any ban of the Human Rights mentioned in the Human Right Convention and Protocol. The European Court of Human Rights stated that the base of distinguishing is that of serious offences."

Conclusion

Therefore, the United Kingdom government needs to make promptly laws, which comply with the judgement passed by the European Court of Human Rights to remedy the prisoners' rights to vote for removal of the ban on prisoner voting rights when the prisoners are sentenced for non-serious offences. However, when serious offences appear, the legislation is justified in imposing a ban on the voting rights of the prisoners who are a serious and continuous threat to the public safety and order in United Kingdom.

Under the Human Rights Act, a minster ahs the power, in certain specified situation, to issue a remedial order in order to remove an incompatibility or a conflict between the national laws of a country and the Conventional rights. Therefore, the best solution in the matter of banning the prisoner voting rights is that a minister be appointed to puts an immediate rest to the pro-longed matter by making a remedial order and issuing an order to the United Kingdom government to make their domestic law according to the Human Right Convention and by abiding with the Protocol so formed[33]. Thus, the long debate will eventually end giving the United Kingdom a suitable legislation in the mater, which relates to releasing the ban from voting rights of the prisoners in the United Kingdom.

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[1] Skelton, Tracey. "Taking young people as political actors seriously: opening the borders of political geography." Area 42.2 (2010): 145-151.

[2] Ramsay, Peter. "Faking Democracy with prisoners' voting rights." (2013).

[3] Cliquennois, Gaëtan, and Brice Champetier. "A new risk management for prisoners in France: The emergence of a death-avoidance approach."Theoretical Criminology 17.3 (2013): 397-415.

[4] Stockdale v Hansard(1839) 9 Ad & El 1

[5] Lake v. King (1667) 

[6] Gridley v. Johnson, 476 S.W.2d 475 (Mo.1972)

[7] Smile v. Lawson, 506 S.W.2d 400, 402 (1974)

[8] Scoppola v. Italy

[9] Lockard, Joe, and Sherry Rankins-Robertson. "The right to education, prison–university partnerships, and online writing pedagogy in the US."Critical Survey 23.3 (2011): 23-39.

[10] Ramsay, Peter. "Faking Democracy with prisoners' voting rights." (2013).

[11] Gentili, Gianluca. "European Court of Human Rights: An absolute ban on deportation of foreign citizens to countries where torture or ill-treatment is a genuine risk." International Journal of Constitutional Law 8.2 (2010): 311-322.

[12] McIntyre, James, et al. "Uptake and knowledge of voting rights by adult in-patients during the 2010 UK general election." The Psychiatrist Online 36.4 (2012): 126-130.

[13] Cliquennois, Gaëtan, and Brice Champetier. "A new risk management for prisoners in France: The emergence of a death-avoidance approach."Theoretical Criminology 17.3 (2013): 397-415.

[14] Murray, Colin RG. "A perfect storm: Parliament and prisoner disenfranchisement." Parliamentary Affairs (2012): gsr071

[15] Cliquennois, Gaëtan, and Brice Champetier. "A new risk management for prisoners in France: The emergence of a death-avoidance approach."Theoretical Criminology 17.3 (2013): 397-415.

[16] Ramsay, Peter. "Voters should not be in prison! The rights of prisoners in a democracy." Critical Review of International Social and Political Philosophy16.3 (2013): 421-438.

[17] Ridyard, Richard. "The government’s ban on prisoners receiving books is the antithesis of the rehabilitation revolution promised by Chris Grayling."Democratic Audit Blog (2014).

[18] McNulty, Des, Nick Watson, and Gregory Philo. "Human Rights and Prisoners' Rights: The British Press and the Shaping of Public Debate." The Howard Journal of Criminal Justice 53.4 (2014): 360-376.

[19] Malleson, Kate, and Richard Moules. The legal system. Vol. 2. Oxford University Press, 2010.

[20] Ridyard, Richard. "The government’s ban on prisoners receiving books is the antithesis of the rehabilitation revolution promised by Chris Grayling."Democratic Audit Blog (2014).

[21] Amos, Merris. "Transplanting Human Rights Norms: The Case of the United Kingdom's Human Rights Act." Human Rights Quarterly 35.2 (2013): 386-407.

[22] Fekete, Liz, and Frances Webber. "Foreign nationals, enemy penology and the criminal justice system." Race & Class 51.4 (2010): 1-25.

[23] Mackay, Anita. "The human rights implications of smoking bans in closed environments: What Australia may learn from the international experience."International Journal of Law, Crime and Justice (2016).

[24] Mackay, Anita. "The human rights implications of smoking bans in closed environments: What Australia may learn from the international experience."International Journal of Law, Crime and Justice (2016).

[25] Rehman, Javaid. International human rights law. Pearson education, 2010.

[26] Donnelly, Jack. International human rights. ReadHowYouWant. com, 2010.

[27] Brady, Alan DP. Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach. Cambridge University Press, 2012.

[28] Bellamy, Richard. "Political Constitutionalism and the Human Rights Act."International Journal of Constitutional Law 9.1 (2011): 86-111.

[29] Tomuschat, Christian. Human rights: between idealism and realism. Vol. 13. Oxford University Press, USA, 2014.

[30] Coupland, Nikolas. "Other” representation." Society and Language Use 7 (2010): 241-260

[31] Skelton, Tracey. "Taking young people as political actors seriously: opening the borders of political geography." Area 42.2 (2010): 145-151.

[32] Hepple, Bob. "The new single equality act in Britain." The Equal Rights Review 5 (2010): 11-24.

[33] Skelton, Tracey. "Taking young people as political actors seriously: opening the borders of political geography." Area 42.2 (2010): 145-151.