Prisoners’ Right to Vote: on R (Chester) v Secretary of State for Justice

amir

Amir Paz-Fuchs

It would clearly be absurd to permit a Parliament whose sovereign law-making power was justified on democratic grounds to exercise that power to destroy democracy, as by removing the vote from sections of society.

Allan ‘Parliamentary Sovereignty: Law, Politics and Revolution’ (1997) LQR 443, at 449

 

The highly expected Supreme Court ruling in R (Chester) v Secretary of State for Justice and McGeoch v Lord President of the Council on prisoner voting in the UK was delivered on October 16th, 2013. The facts are well known, so may be mentioned here with the utmost brevity: Section 3(1) of the Representation of the People Act 1983 sanctioned a blanket disenfranchisement of prisoners in the UK. In 2005, the Grand Chamber of the European Court of Human Rights, in Hirst v UK (No 2), found that this restriction violated Article 3 of Protocol No 1 to the European Convention of Human Rights. Following the ECtHR ruling, it was expected by some that the British government would ‘do as it’s told’ and amend the law so that a blanket ban no longer applied. This prediction did not materialise. Against this tense legal and political background came the Supreme Court’s ruling which denied the claim that a right to vote for prisoners could be found under EU law, to the elation of many, but to the frustration and disappointment of quite a few. The Court’s ruling and highly disparate arguments are examined below, with only some brief mention of the principled issues involved, where necessary (for an excellent critique of the justifications for disenfranchisement, see here for a blog version, and here for an extended academic inquiry).

prisoner voting

1. On Prisoners’ Right to Vote in Britain, or Fishing Quotas in Europe?

Reading the reporting and commentary following the ruling, one could think that the central issue at stake was Britain’s sovereignty vis-à-vis the EU with respect to, say, fishing quotas as opposed to one of the most fundamental rights of citizenship. The Prime Minister applauded the Supreme Court for making it clear it has “nothing to do with the European Union and I think we can all rejoice at that result”. Charitably, we may assume that Mr Cameron and the “cheering MPs” were not rejoicing and celebrating their success in denying fellow citizens a fundamental right. Rather, it was seen as a test case for Europe’s hold over Britain. This was made clear in the Supreme Court’s opening (and major) speech, delivered by Lord Mance. But one may suggest that there is a paradoxical air to the whole debate. Though Lord Mance’s assertion that EU law does not grant an individual a right to vote is far from obvious, let us assume that such is the case. Is that where our trail ends? If British citizens do not, arguendo, have an acknowledged right to vote for the British Parliament under EU law, and accepting that there is ‘no point’ in making declaration of incompatibility under the Convention [para 39], does that mean that they have no right under the common law either? Reading Lord Mance’s speech, and in particular – the political debate that followed, one could not be faulted for finding that such is the case. The paradoxical aspect, therefore, is that in the effort to assert Britain’s autonomy vis-à-vis the EU, it exhibited a very deep dependency. Only a few weeks prior to the case reviewed here, the Supreme Court handed down a ruling (Osborn v the Parole Board) asserting British independence in the developing rights under the common law. As it so happens, the focus of the discussion also related to prisoners’ rights (under the ECHR, rather than EU law): to privileged correspondence, to procedural justice and to protection against torture. The Court in Osborn then moved to criticise the appellants for supposing that ‘because an issue falls within the ambit of a Convention guarantee, it follows that the analysis of the problem should begin and end with Strasbourg case law’ (at [63]). It therefore seemed almost natural to expect some discussion in Chester of the nature of the right to vote under the common law, its extension, the ability to deny it to particular groups, and the constitutional limits that should apply, under the common law. This discussion was notably absent.

2. Court of Public Reason or of Public Opinion

Lady Hale’s speech, with which Lord Hope and Lord Kerr agreed, opened with the surprising information that 63% of respondents in a 2012 YouGov poll agreed that ‘no prisoners should be allowed to vote’, 19% said that those serving less than six months should be allowed to vote, and 8% stated that all prisoners should be allowed to vote. The surprise, of course, is not that such is the distribution of opinion but, rather, that such data finds itself into a Supreme Court ruling. Apart from giving legal realists in academia an excellent example of the tight connection of law and politics, what purpose could that data serve? Lady Hale continues by clarifying, admirably, that ‘the views of the public and Parliamentarians is not the end of the story. It is about safeguarding the rights of minorities, including unpopular minorities’ (para 88) and that it is the Court’s role and duty to protect the disenfranchised and the excluded (para 90). Moreover, her Ladyship places the criminal process within a wider social and economic context, noting that ‘exactly the same crime may attract an immediate custodial sentence and disenfranchisement at one time or a suspended sentence without disenfranchisement at another … All this suggests an element of arbitrariness in selecting the custody threshold as a unique indicator … to justify exclusion from the democratic process’ (para 95-96, emphasis added). Lord Clarke echoes this sentiment by highlighting the ‘disproportionate and indiscriminate’ nature of the blanket ban, which could apply to prisoners sent to no more than 14 days, but happen to be incarcerated on election day. And yet, turning to the individual litigants, for whom she has ‘no sympathy’ (para 99), Lady Hale (and, it would seem, Lord Clarke) find that neither EU law nor the Human Rights Act offers them a remedy. In other words, even were the UK to change its law in accordance with the model, approved in Scoppola No 3, that limits disenfranchisement only to prisoners guilty of serious offences, no claim to a remedy would have been offered to these particular claimants. Many, including the present writer, would find this result unfortunate, but there is no doubt that such a policy is well within the margin of appreciation accorded by the ECtHR, and considered proportionate in the current legal climate. However, this is not the UK’s government current position. I would, however, like to stress a different point. Responding in legal realist kind, one could argue that Lady Hale and Lord Clarke’s positions, while reasonable in their own right, may lead to an effective denial of all prisoners’ right to vote, including those sentenced to minimal periods, for crimes that are far from heinous. The reason is that, while obviously being far from sympathetic, it would be a prisoner serving an extensive prison sentence who will have the time, energy and motivation to challenge his or her disenfranchisement. If such a prisoner would be routinely denied because of the obnoxious acts that placed him there, the effect on all prisoners’ rights to vote would be fatal.

It's all about the incentives?
It’s all about the incentives?

3. A Serious Right, or a Walk in the Park?

Finally, Lord Sumption’s speech (to which Lord Hughes agreed) is in considerable tension to that put forward by Lady Hale. First, insofar as the subject of the petition is concerned, Lord Sumption states that ‘the present issue has nothing whatever to do with the protection of minorities’ (para 112); and with respect to the denial of the right to vote, Lord Sumption declines ‘to regard it as any more significant than the fact that [their short period of imprisonment] may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer’. With due respect, both limbs of the argument are problematic and far-reaching. Taken to their logical conclusion, the first argument would seem to suggest that prisoners’ rights in general should not be protected, simply because they are not an immediately identifiable racial, ethnic, religious, or sexual minority. This could not be what his Lordship had in mind, but it is difficult to decipher the alternative purpose of stating that prisoners are not a ‘protected minority’. The statement gains additional force from its contrast with Lady Hale’s assertion of the Court’s role to protect unrepresented minorities, including prisoners.  The second limb, which dismisses the importance of the right to vote in general is obviously crucial if taken literally. We find, then, that the Supreme Court’s most direct reference to the right to vote in this judgment is one that minimizes its importance.

But while the vote seems unimportant for the prisoner, Lord Sumption asserts that the denial of the vote is important for society. His Lordship rejects not only the ancient rationale of ‘civil death’ for disenfranchisement, but also the more modern constructions of ‘social contract’ (paramount in Gonthier J’s dissenting opinion in Sauvé v Canada(2)) as well as the traditional justifications for punishment, which are sometimes transferred to justifications for disenfranchisement. Instead, Lord Sumption stresses the demonstrative function of criminal law, as a reassertion of society’s values and the importance of the rule of law, which the prisoner has offended. His or her acts justify not only the physical denial of his liberty, but also the temporary symbolic exclusion from society, through disenfranchisement. I shall say something about legal and social exclusion in closing, but here would like to point out the danger that lies in attaching too great importance to what is often the contingent nature of criminal law. British law is replete with examples of acts that were deemed criminal and, from a contemporary perspective, sway between the amusing (as in the case of sumptuary laws dictating fashion), the confusing (it was an offence to keep more than ‘one lunatic’ in a house without a licence) and the obnoxious (criminalising homosexuality would be an obvious candidate). There is no need, therefore, to be a moral relativist through and through to suggest that some caution should be used before attaching moral superiority to the social norms of the day, even if they are entrenched (for the time being) in a criminal statute.

Concluding Thoughts: poverty and crime

It is worth remembering, perhaps, that Judith Shklar identified the voting as one of the two foundations of (American) citizenship. She writes (at p 64):

To be a recognized and active citizen at all he must be an equal member of the polity, a voter, but he must also be independent, which has all along meant that he must be an “earner”, a free remunerated worker, … neither more nor less.

The link that Shklar makes here between earner and voter, both foundational elements of citizenship, is illuminating. Not only because of the well-documented causal connection between poverty and crime; or even the unequal treatment that the rich and poor receive from the criminal justice system. Rather, in the particular context of British social and legal history, the Poor Laws denied the right to vote to poor house inhabitants, on the basis that they were dependent on public support, while true citizens, deserving of the right to vote, had to be independent. Just like criminals today (and perhaps – like the poor of today), the poor of Victorian England were extremely unpopular. They were identified as personally responsible for their own predicament, and could rely very little on the legal system to uphold their rights. For law, as Shklar identifies, is not only the source of possible inclusion, but may also be the foundation of further exclusion.

One may conclude by hoping that, if a more agreeable prisoner brings British policy to the test again, their Lordships will take this insight into account.

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Juror misconduct: The criminal law as a vehicle for rights protection

Abenaa Owusu-Bempah

On 9th December 2013, the Law Commission published their report,  Contempt of Court (1): Juror Misconduct and Internet Publications. This report is a welcome response to several recent high profile cases of juror misconduct, including that of Dr Theodora Dallas. Dallas was a juror who, in 2011, had discovered on the internet that the defendant she was trying had previously been accused of rape. As a result of her actions, she received a sentence of six months imprisonment. Incidentally, Dallas is now taking her case to the European Court of Human Rights, claiming that, as a juror, she had not been given proper instructions about using the internet.

One of the Law Commission’s recommendations is that there be a new statutory criminal offence for a sworn juror in a case deliberately searching for extraneous information related to the case he or she is trying. This conduct would most likely involve a juror searching for information about the case on the internet. Currently, this amounts to a contempt of court at common law. Without getting into the details of the recommended offence, one can note the potential benefits it could have as a mechanism for protecting fair trial rights in an area of increasing significance.

Henry Fonda and Friends in 12 Angry Men (1957)
Henry Fonda and friends in 12 Angry Men (1957)

The criminal law acts as a means of regulating conduct. In this way, it limits our everyday behaviours and interactions. Principles of individual autonomy and minimal criminalisation mean that the creation of new criminal offences should be avoided, unless absolutely necessary. However, in this instance, the Commission’s recommendation for a new offence does have merit.  Jurors are instructed throughout the trial process that they are not to undertake independent research in relation to the case they are trying. Their decisions should be based only on the evidence that is presented to them in court. Yet, many jurors are uncertain of the scope of this rule and the consequences of breaching it. This problem has been highlighted in the research of Professor Cheryl Thomas (Are Juries Fair? (2010); ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] Crim LR 483). The deterrent effect of a new criminal offence is by no means certain, but there is at least the potential that the existence of a criminal offence would keep jurors alert to the fact that independent research is prohibited, and that there are significant consequences attached to the undertaking of such research.

The potential deterrent effect of a new offence might be enhanced by explaining clearly to jurors why they should not conduct independent research. One of the most damaging consequences of juror misconduct of this kind is that it denies the defendant the right to a fair trial. It is a right of the defence to challenge the evidence against them. This is not possible if the jury, or even a single juror, has conducted their own research, and used it to influence their decision. There is a significant danger that the information which the juror has found is inaccurate and has been taken out of context, resulting in a false or misleading impression. If such information plays a role in the jury’s deliberations, it could lead to a wrongful conviction.

Before evidence can be presented in court, it is ordinarily subject to complex rules of admissibility in order to ensure that it is relevant and reliable. These include the numerous provisions set out in the Criminal Justice Act 2003 which deal specifically with the admissibility of evidence of a defendant’s previous bad character and with the admissibility of hearsay evidence. Judges also have a general discretion to exclude any prosecution evidence that would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. These safeguards cannot be applied to the extraneous information sought out by jurors. As a result, in cases where independent research has been undertaken, the defendant has not only been denied the opportunity to challenge (or explain) the evidence, but has also been denied the right to be tried by an independent and impartial tribunal. Both of these rights are provided for by Article 6 of the European Convention on Human Rights.

A further benefit of a new criminal offence is that those jurors who are caught conducting independent research will be subjected to criminal proceedings, rather than contempt of court proceedings (to which the civil law of evidence applies). The benefit here is to the jurors themselves. Although fair trial rights do apply to the contempt proceedings, they are not afforded the same level of protection as in criminal proceedings. For example, there is no charge sheet or indictment from which the juror can know the case against them. It is also unclear whether the protections of the Bail Act 1976 apply to this type of contempt of court, or whether legal aid is available to the alleged contemnor.

So, although the creation of new criminal offences should always be a last resort, in this case it could be worthwhile. It would (hopefully) alert jurors to the harm caused by searching for information related to the case they are trying, which would, in turn, (hopefully) reduce the instances of independent research being carried out, which would, in turn, prevent the detrimental effects that this has on the rights of those being tried. Where the offence fails to have this effect and the juror’s misconduct is brought to light, the juror facing criminal charges will, at least, be afforded the protection of due process rights which they are currently being denied.

Welcome

craig

Professor Craig Barker, Director of the Centre for Responsibilities, Rights and the Law at the University of Sussex

 

Welcome to the official blog of the Centre for Responsibilities, Rights and the Law based at the University of Sussex. The Centre was created in 2008 by members of the Sussex Law School with the aim of facilitating and developing doctrinal, theoretical and empirical research into responsibilities, rights and the law. The Centre is thus distinctive in exploring national, European and international aspects of human rights from a variety of perspectives along with questions of responsibility both as a legal concept and more generally. One of the primary aims of the Centre is to engage with end users, policy makers, government bodies, agencies and NGOs, responding to developments in law and policy in responsibilities and rights. One of the purposes of this blog is to facilitate such engagement, through the development of several streams of activity.

The Centre for Responsibilities, Rights and the Law

The initial work of the Centre was focused around ideas of Family Responsibilities and members of the Centre have made a distinctive contribution to the theorising, academic analysis of, and debates on responsibility as well as rights in family law and policy. A series of seminars and academic conferences resulted in a number of publications in which the concept of responsibility in relation to the family has been developed. Key texts include Responsibility, Law and the Family (2008), Children, Family Responsibilities and the State (2008), Taking Responsibility, Law and the Changing Family (2011), and Regulating Family Responsibility (2011) all published by Ashgate and variously edited by Jo Bridgeman, Heather Keating and Craig Lind. The family lawyers are continuing to examine various aspects of responsibility in family relationships.

 The second major stream of activity in the Centre’s recent work has been in relation to Human Rights. The Centre has considerable expertise in relation to the European Human Rights Regime, and a number of Centre members are currently engaged in research focusing on rights developments in the UK. Amir Paz-Fuchs’s book, Welfare to Work: Conditional Rights in Social Policy (OUP, 2007) addresses that particular theme. Within the Centre, the Human Rights Stream has organised a number of events including events focused on the human rights of minorities and migrants and on the issue of gender equality. Centre members have also engaged extensively with the debates within government – both the previous Labour administration and current Coalition government – on the development of a UK Bill of Rights. Susan Millns, in her capacity as Co-Director of the Sussex European Institute, secured a €20,000 grant from the European Commission for a series of events on the theme of ‘Connecting with Citizens’ to run from 2013-14. In January 2013 Elizabeth Craig was awarded a tender for research on cultural rights in post-conflict societies, with a particular focus on Northern Ireland, by the Northern Ireland Human Rights Commission. This project was completed in July 2013.

Two further streams have been developed in recent months focusing on Corporate Social Responsibility (CSR) and on International Responsibilities. Work in the Centre in relation to CSR is focused on the development of the notion of CSR though corporate law, insolvency law and securities regulations, the latter stream is currently focusing on the notion of “Responsibility to Protect” while developing an interdisciplinary project on responsibility dialogues and a further project examining responsibility discourses in international law. A brand new stream on Criminal Law, Criminal Justice and Criminology (CCC) has just been created within the Centre. As with each of our existing streams, the new stream aims to support individual research, as well as to promote and foster collaborative work and the attraction of external funding.

Further information about the Centre and its streams and activities can be found at the Centre website.

Human Rights Day – 10 December 2013

 We have chosen 10 December 2013 as the day to launch our blog in recognition of the work of the United Nations in the field of Human Rights and to mark Human Rights Day for 2013. The United Nations Declaration of Human Rights (UNDHR) was adopted by the United Nations General Assembly on 10 December 1948 and the first Human Rights Day was declared on 10 December 1950. The UNDHR, as supplemented by the two 1966 Covenants, remains the preeminent international instrument on human rights and it is an instrument on which much of the work of the Centre rests.

human rights day

This year also marks the twentieth anniversary of the establishment of the Office of the High Commissioner for Human Rights and, thus, of the Vienna Declaration and Programme of Action adopted by the Vienna Conference on Human Rights on 25 June 1993. The theme of this year’s Human Rights Day marks the work of that Office and the importance of the Vienna Declaration. This 100 paragraph document highlights many of the areas of human rights law in which members of the Centre are engaged. In addition to directly reaffirming “the responsibilities of all States, in conformity with the Charter of the United Nations, to develop and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion” (Preamble), the Declaration also confirms the right to development and freedom from environmental harm (Paragraphs 10 & 11) as well as the human rights of women (paragraph 18) and of children (Paragraph 21) as well as the rights of minorities (Paragraph 19), all of which are primary concerns of the members of the Centre directly concerned with human rights issues. Furthermore, the concern expressed in the Declaration about continued gross and massive violations of human rights (Paragraphs 28-30) constitute part of the focus of researchers in the Centre examining the concept of responsibility in international law. To that end, we seek, together, “to contribute further to increasing public awareness of human rights issues, to the conduct of education, training and research in this field, and to the promotion and protection of all human rights and fundamental freedoms” (Paragraph 38).

The Blog

The purpose of this blog is to provide a forum for debate and discussion about rights and responsibilities in current legal discourse. Members of the Centre will regularly post about their work but the blog will be open to non-members wishing to contribute to the work of the Centre. Colleagues and students from Sussex and beyond are invited to contribute posts and join in discussions. Suggested posts should be forwarded in the first instance to Amir Paz-Fuchs.

We look forward to developing a vibrant, topical and challenging dialogue through this medium.