Prisoner voting

R (on the application of Chester) v Secretary of State for Justice, McGeoch v The Lord President of the Council and another: Supreme Court: 16 October 2013

The instant proceedings concerned the right of prisoners to vote. UK law contained a general prohibition on voting by prisoners. Both claimant prisoners had been convicted of murder. In the first set of proceedings, C, the claimant, had been found guilty of murder and, although his tariff had expired, he had not satisfied the Parole Board that it was no longer necessary for the protection of the public for him to be confined.

In the second set of proceedings, M, the claimant, had been found guilty of murder and a number of other offences, and was in the process of serving sentences for them in Scotland. C brought a claim for judicial review relating to voting in the UK and European Parliamentary elections. He relied on article 3 of the First Protocol to the European Convention on Human Rights (the Convention), as incorporated into domestic law by the Human Rights Act 1998. M brought a claim for judicial review of the fact that he could not vote in local municipal and Scottish Parliamentary elections, relying solely on European Union law. The claims were dismissed. The claimants both appealed unsuccessfully: C to the Court of Appeal, and M to the Extra Division. They both appealed to the Supreme Court.

The issues were, among other things, first, whether the court should apply the principles established in Hirst v United Kingdom (No 2) (Application No 74025/01) [2005] All ER (D)59 (Oct) (Hirst) and Scoppola v Italy (No 3) (Application No 126/05) [2012] ECHR 126/05 (Scoppola) and, if so, whether the ban on voting was incompatible with C’s rights under article 3 of the First Protocol (the Human Rights Act issue). In Hirst, a declaration had been made that the UK’s ban on prisoner voting was incompatible with article 3 of the First Protocol.

Secondly, whether the EU law recognised a right to vote, in terms equalling or exceeding the right arising under article 3 of the First Protocol, on which the claimants could rely as EU citizens seeking to vote in their own countries. Under that heading, consideration was given to the principle of non-discrimination in the Treaty of the Functioning of the European Union, applied in Eman v College van burgemeester en wethouders van Den Haag: C-300/04 [2006] All ER (D) 53 (Sep). Consideration was given to article 14 of the Convention.

The claims would be dismissed.

(1) With regard to the Human Rights Act issue, it was settled authority that there were numerous ways of organising and running electoral systems and a wealth of differences, among other things, in historical development, cultural diversity and political thought within Europe which it was for each contracting state to mould into their own democratic vision. The role of the European court in that area was a subsidiary one: the national authorities were, 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 might reasonably differ, the role of the domestic policy-maker had to be given special weight (see [42] of the judgment).

It was not appropriate for the court to refuse to apply the principles established by the decisions in Hirst and Scoppola consistently with the way in which they had been understood and applied in those decisions. Further, it would be inappropriate to refuse the principles stated in the European case law in the instant circumstances. Applying those principles, C was a victim under the Human Rights Act. However, that did not necessarily mean that he was entitled to any particular relief.

A declaration of incompatability was a discretionary remedy, and the incompatibility of the prohibition on prisoners voting in the UK with the Convention had previously been the subject of a declaration of incompatability and was, at the instant time, under active consideration by parliament. In those circumstances, there was no point in making a further declaration of incompatability. Further, it could be said with considerable confidence that the ban on C’s voting was one that the UK parliament could, consistently with the Convention right, and would, maintain, whatever amendments it might be obliged to make or might make to allow any prisoners detained for different reasons or periods to vote (see [34], [35], [38], [39], [40] of the judgment).

The principles of Hirst and Scoppola would be applied to C’s case. No further declaration of incompatibility with the Convention rights would be made (see [4], [42] of the judgment).

Hirst v United Kingdom (No 2) (Application No 74025/01) [2005] All ER (D) 59 (Oct) considered; Greens v United Kingdom (Application No 60041/08) [2010] All ER (D) 280 (Nov) considered; Scoppola v Italy (No 3) (Application No 126/05) [2012] ECHR 126/05 considered; Vinter v United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2013] All ER (D) 158 (Jul) considered.

(2) There was nothing in the EU law that could entitle M to complain in respect of his inability to vote in Scottish parliamentary elections. Further, eligibility to vote was a matter for national parliaments, one of considerable national interest. There was no sign that the European Commission had ever sought to involve itself in or take issue with voting eligibility in member states or specifically with the restrictions on voting eligibility that applied in a number of such states.

Furthermore, the provisions that the European treaties contained concerning individual voting rights were notably limited in scope. They related to the core treaty concerns of equality between nationals or Union citizens and freedom of movement within the European Union. With regard to the principle of non-discrimination, for the principle to apply, the context had to fall within the scope of Community or Union law. It was a general principle of Strasbourg law under article 14 of the Convention that additional rights falling within the general scope of any Convention right for which the state had voluntarily decided to provide might in that event be provided without discrimination.

However, there was no justification within the case law for the different treatment of comparable situations in a context which fell within the scope of European law, namely the voting by nationals residing outside their own member state. The court had accepted that the definition of the persons entitled to vote and to stand fell within the competence of each member state in compliance with Community law (see [45], [58], [59], [63], [64] of the judgment).

European law did not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case law or any other individual right to vote that was engaged or upon which, if engaged, the claimants were able to rely (see [4] of the judgment).

Belgian Linguistics Case (No 2) (Applications 1474/62, 1691/62, 1769/63, 1994/63, 2126/64 and 1677/62) 1 EHRR 252 considered; Matthews v United Kingdom (Application 24833/94) 28 EHRR 361 considered; Mangold v Helm: C-144/04 [2005] All ER (D) 287 (Nov) considered; Eman v College van burgemeester en wethouders van Den Haag: C-300/04 [2006] All ER (D) 53 (Sep) considered; Spain v United Kingdom: C-145/04 [2006] All ER (D) 55 (Sep) considered; Bartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH: C-427/06 [2008] All ER (D) 29 (Oct) considered; Seda Kucukdeveci v Swedex GmbH & Co KG: C-555/07 [2010] All ER (D) 126 (Feb) considered.

Decision of Court of Appeal [2010] All ER (D) 219 (Dec) affirmed.

Hugh Southey QC and Richard Reynolds (instructed by Chivers) for C; Aidan O’Neil QC, Christopher Brown and Tony Kelly (instructed by Taylor & Kelly) for G; HM Attorney General, James Eadie QC, Jason Coppel QC and Tristan Jones (instructed by Treasury Solicitors) for the Secretary of State for Justice in the case of C; HM Attorney General, James Eadie QC, Ruth Crawford QC and Jason Coppel QC (instructed by the Office of the Advocate General of Scotland) for the Lord President of the Council in the case of M.