Tomorrow is Election Day and Prisoners should be allowed to vote because….

By Mark Leech
Editor: The Prisons Handbook
for England and Wales

Although the UK should have left the European Union a couple of months ago, tomorrow the UK will take part in the European Parliamentary Elections – well some will, according to the latest offender management statistics the 73,000-sentenced prison population in England and Wales won’t be voting (apart from those lucky enough to be released on temporary licence tomorrow: ROTL)), but the 9,000 remanded in custody should still be able to do so.

Four years ago the then Prime Minister, David Cameron, said it made him “physically ill” to be forced to give prisoners the vote; in doing so he revealed a shocking disregard of democracy, human rights and put quite simply, justice itself.

Following his remarks, I was invited onto various news programmes and asked to explain why it was that I thought David Cameron was so wrong.

“Are you suggesting Mark that the likes of Ian Huntley should be given the vote” asked one interviewer?

“Rapists and paedophiles should really be able to vote too then should they” asked another?

A third laughed at my suggestion that in all honesty the public were actually more interested in why prisoners shouldn’t vote, than prisoners were as to why they should; but it was true nonetheless – largely speaking most prisoners couldn’t give a toss about voting, they became disengaged from politics and its various scandals years ago, and since then the public have increasingly followed suit.

And to come straight to the point: yes ‘the likes of’ Ian Huntley should be allowed to vote – and for the record so too should the likes of paedophiles, rapists, murders, robbers, drug addicts and thieves.

Why?

That’s easy.

For the very simple reason that we live in a democracy and the one thing that marks out a democracy, from a dictatorship, is that in a democracy everybody counts; black, white, tall, small, fat, thin, gay, straight, good, bad and yes even very bad too – everybody, every single person, ‘counts’.

I am not saying that every prisoner should be allowed to vote, only that where we remove the right to vote it has to be based on reason not rhetoric. If we are seriously saying that every convicted prisoner is banned from voting, just because they’re in prison, whether they are serving seven days or seventy years, then my point is that there has to be some connection between the crime they committed and the sentence imposed.

A man goes out on Friday night, gets drunks, gets involved in an argument that descends into a fight, is arrested for assault and appears in court on Monday morning – when I asked the politicians I appeared with on those news programmes whether that man should lose his driving licence, every single one said ‘No’ of course not, ‘he hadn’t committed a motoring offence’.

Quite so.

So why do we remove the right to vote from prisoners who have not been convicted of any electoral offence?

Where someone has been convicted of electoral fraud then removal of the right to participate in elections for a fixed period should be a sentence open to the courts – not a stick wielded by politicians for ulterior and irrational motives.

And there is another basic objection that I have to removing the prisoners’ right to vote – and this has nothing to do with crime, indeed it is much more fundamental than that – it is that politicians have a vested interest in this subject; their career, livelihood, salary and future depend on votes, they are the last one’s who should be able to pick who can mark their homework.

I don’t object at all to the question as to whether prisoners should be able to vote actually being asked, or debated, on the contrary I welcome transparency – I simply say that politicians are not the ones who should answer such fundamental civil rights questions – that should be one for society as a whole, ideally enshrined in a written Constitution and delivered by the Courts.

And it is not as if Cameron’s view of prisoner voting has widespread support in other countries; it doesn’t.

Many nations, including Denmark, Sweden and Switzerland, have no form of electoral ban for imprisoned offenders at all. In others, however, severe restrictions make it very difficult in practice for offenders to vote. In Cyprus, for example, an inmate must happen to be out of prison on the day of the elections (the position now in England and Wales too), and in Slovakia, prisoners can legally vote but no provision is made to allow them to do so.

The Republic of Ireland lifted its ban in 2006, passing legislation enabling all prisoners to vote by post in the constituency where they would ordinarily live – and the first thing they did in South Africa after the release of Nelson Mandela was to give every single prisoner the right to vote because they had spent too long living with apartheid to allow it to continue to infect their electoral system; and electoral apartheid is what we have in the UK as long as we say one section of the community – prisoners – cannot vote.

In 13 European countries, electoral disqualification depends on the crime committed or the length of the sentence. Italy, Malta and Poland, for example, ban those deemed to have committed serious crimes. In Greece, anyone sentenced to life receives a permanent voting ban.

Germany’s law actually urges prisons to encourage their inmates to vote, although it does ban those whose crimes undermine “democratic order”, such as political insurgents. You see Germany, with its chequered human rights history (like that of South Africa) ‘gets it’ where Cameron doesn’t.

Germany ’gets it’ that there is a risk that by excluding people from taking part in the very essence of a democratic process by voting, they will accept that exclusion and not only become disengaged, but then they’ll stick two fingers up to your society by starting their own way of doing things which results in gang culture, crime and lawlessness.

Germany is not alone.

Until 2005, Austria banned all those sentenced to more than one year. However, a convicted murderer challenged that and won, meaning that Austria now allows the vote in all cases except where the offence is particularly relevant – such as electoral fraud.

Other than the UK, the only other European countries with an outright ban on prisoners voting are Russia, Armenia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg and Romania; hardly countries leading the way in political thinking.

However, until a legal challenge is brought in those countries, Europe will not seek to force a change in their domestic legislation.

The European Convention on Human Rights is not some ‘a la carte’ menu in a restaurant, where you can pick and choose what rights you want to enforce and those you wish to ignore, all the rights protected by the Convention are enforceable – and let us not forget the UK signed up to this Convention well over half a century ago.

The UK led the way in post-war Europe and drove this historical treaty forward – if anything should make politicians ’physically sick’ it is not the prospect of giving prisoners the vote, but the shameful way they seek to walk over hard-won rights and freedoms that our ancestors considered so vital to any democracy they laid down their lives fighting for them.

Mark Leech FRSA ©

UPDATE: Just out: Miller v UK Court finds ban on prisoner voting breaches Article 3

Read:  Summary of European Case Law on Prisoner Voting

Prisoner voting ban breaches human rights

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The rights of more than 1,000 UK prisoners were breached when they were prevented from voting in elections, European judges have said.

But the European Court of Human Rights (ECHR) rejected the applicants’ claims for compensation and legal costs.

The case before the ECHR concerned 1,015 prisoners who were behind bars throughout various elections between 2009 and 2011.

Grouping together all of the long-standing prisoner voting cases against the UK, the court ruled that there had been a violation of Article 3 of the European Convention on Human Rights – right to a free election.

In August last year the court made a similar ruling, endorsing previous cases where it was found that the blanket ban was a breach.

In September 2014, the Council of Europe’s Committee “noted with profound concern and disappointment that the United Kingdom authorities did not introduce a Bill to parliament at the start of its 2014-2015 session as recommended by the competent parliamentary committee”.

It urged the United Kingdom authorities to introduce such a Bill as soon as possible, and will come back to the issue later this year.

Mark Leech editor of Converse the national newspaper for prisoners in England and Wales said the judgement perhaps showed that we are better off out of the European court of human rights altogether.

Mr Leech said: “This judgement shows that we are perhaps better off out of the European court of human rights with, instead, an enforceable bill of rights rather than be in cahoots with a court where it’s judges have no bottle.

“How can a court declare that the human rights of over a thousand people have been consistently and unlawfully ignored in breach of the convention and yet neither compensation nor costs are recoverable?”

Court ruling due on prisoner voting

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European judges are set to rule on whether the rights of 1,015 serving prisoners in the UK were breached when they were prevented from voting in elections.

The European Court of Human Rights (ECHR) is due to announce its judgment on prisoner voting rights tomorrow.

It will cover applications brought by more than a thousand people who were in jail throughout various elections between 2009 and 2011.

The ruling will group together all of the long-standing prisoner voting cases against the UK that have been pending before the court.

In August last year the ECHR ruled that the rights of 10 prisoners had been violated in relation to Article 3 of the European Convention of Human Rights – right to a free election.

Judges said they reached the conclusion as the case was identical to another prisoner voting case in the UK, in which the blanket ban was deemed a breach.

The court rejected the applicants’ claim for compensation and legal costs, after an earlier judgment made it clear that it was unlikely to award even expenses in such cases.

In September 2014, the Council of Europe’s Committee “noted with profound concern and disappointment that the United Kingdom authorities did not introduce a bill to parliament at the start of its 2014-2015 session as recommended by the competent parliamentary committee”.

It urged the United Kingdom authorities to introduce such a bill as soon as possible, and will come back to the issue later this year.

‘Cowardly judges’ say prisoners’ breach of human rights doesn’t deserve costs or compensation

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In a decision said to be ‘cowardly’ European Judges have ruled that denying the vote to a group of prisoners was a breach of human rights, although no compensation or costs should be paid to them saying the ruling in their favour was enough.

The group, who are prisoners in Scottish jails, argued the UK’s ban on them voting in the 2009 European elections breached their human rights.

The UK has already been told it must allow some prisoners to vote.

Both the previous Labour government and current coalition have failed to legislate to change the law – although Parliamentarians have been considering various proposals from ministers to end the long-running row with the Strasbourg court.

In the latest case, the court – which oversees human rights law that the UK signed up to – had been asked to award damages to the inmates because of the UK’s repeated failure over almost a decade to end the blanket ban on voting.

But although the court said the inmates, who include sex offenders, had suffered a breach of their rights, they were not entitled to any compensation.

In their ruling, judges said that in the vast majority of cases relating to prisoners’ votes they had had “expressly declined” to order governments to make payments to convicted criminals.

“As in those cases, in the present case the court concludes that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants,” said the latest ruling.

They also refused to order the British government to pay the inmates’ legal costs.

In a dissenting ruling, one of the judges complained the case should never have come before the court – because it had repeatedly demonstrated that it had no settled view over votes for prisoners – making it even harder for individual governments to work out what to do to avoid further claims.

Responding to the judgement, a spokesman for the Ministry of Justice said: “The Government has always been clear that it believes prisoner voting is an issue that should ultimately be decided in the UK.”

Convicted prisoners in the UK have been long banned from voting on the basis that they have forfeited that right by breaking the law and going to jail. Other European nations have the same ban in place – although the majority allow some prisoners to vote in some circumstances.

In 2004 the ECHR in Strasbourg ruled that a UK blanket ban on prisoners voting was unlawful after it received a claim from convicted killer John Hirst. The following year that judgement became final after the UK lost an appeal – piling pressure on ministers to change the law.

Seven years later, MPs voted to keep the ban on prisoner voting – excluding those on remand.

In December 2013, a cross-party committee of MPs concluded that prisoners serving a jail term of a year or less should be entitled to vote – but so far this has not been enacted.

Prime Minister David Cameron has previously said that inmates will not be given the right to vote under his government, and said that the idea made him feel “physically sick”.

Last October convicted murderers Peter Chester and George McGeoch lost a bid at the Supreme Court to win prisoners the right to vote in light of the ECHR’s original 2004 ruling.

Mr Cameron described that particular decision as “a great victory for common sense”. Had the court ordered compensation, ministers would have faced the prospect of paying similar sums to hundreds of other cases before the courts.

Mark Leech editor of Converse the national newspaper for prisoners in England and Wales said the judges lacked courage.

Mr Leech said: “Where in any other court could a claimant win a case for a breach of human rights and not be afforded either their costs or appropriate compensation?

“Our judges have become political animals, swayed by politicial not judicial considerations, instead of being cowards they should have been more courageous and done what justice demanded to be right.”

Judges Should Not Make Political Statements

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Claims by the European Court of Human Rights to set judge-made law on a widening range of social issues is threatening to undermine the sovereignty of Parliament, one of Britain’s most senior judges has warned – but critics have said Judges Should Not Make Political Statements while still on the bench.

Lord Judge, the former Lord Chief Justice of England and Wales, said that Parliament needed to decide for itself how much power it was willing to cede to the Strasbourg-based court.

His intervention came as the President of the Court, Judge Dean Spielmann, warned Britain’s refusal so far to implement the court’s ruling that the blanket ban on prisoners voting must end was a breach of international law.

At the same time, he said that any attempt by Britain to pull out from the European Convention on Human Rights could set the UK on the path to leaving the European Union altogether.

However, Lord Judge expressed concern that Judge Spielmann was claiming too much power for a body of unelected judges whose decisions could not be overruled.

“This is a court which is not answerable to anybody,” he told the BBC Radio 4 Today programme.

“If it’s right, it can’t be overruled by anybody. I genuinely don’t think that a body of judges – however distinguished – should have that sort of power.”

Lord Judge, who described himself as a supporter of the convention, said the court’s claims had implications for the sovereignty of every nation in Europe – not just the UK – and he urged the Government to seek allies in trying to rein it in.

“His (Judge Spielmann’s) view means that the court in Europe is entitled to tell every country in Europe how it should organise itself,” he said.

“He refers to it as a living instrument. Of course the convention isn’t a dead instrument, but it means that legislation can be made by judges on all sorts of societal issues – binding legislation – and if that’s the position there is a very serious problem with sovereignty.

“It’s not a UK problem, the sovereignty issue affects every single country in Europe.”

He added: “It is time for us to recognise that it is a very important time. My own view is: stop here.”

Judge Spielmann, however, insisted that the UK should not defy the court’s ruling on prisoner voting rights.

“This would be clearly inconsistent with the international law obligations of the United Kingdom and also the obligations under the convention,” he told the Today programme.

He said that if Britain sought to pull out of the convention – as some Tory MPs are demanding – it would mean leaving the Council of Europe, the body which created the European Court of Human Rights, and ultimately the EU.

“I cannot see how the United Kingdom could remain a member of the Council of Europe while at the same time withdrawing from the European Convention on Human Rights,” he said.

“All the members of the European Union are also members of the Council of Europe. I can hardly see how a member of the European Union could withdraw from the Council of Europe. I see a problem there.

“I think from a political perspective it might be very difficult to stay in the European Union.”

Lord Judge acknowledged that there were differences among British judges as to what extent the rulings of the European Court of Human Rights were binding on the UK which MPs now needed to resolve.

“My very strong belief is that this issue now needs to be resolved by Parliament,” he said.

“The issue that is in play here is not the convention, it’s sovereignty .The most fundamental principle of our unwritten constitution is parliamentary sovereignty.

“Our elected representatives have ultimate sovereignty not only over our own unelected judges but in my view over the unelected judges of any other jurisdiction, including Europe, unless we choose to give them sovereignty.”

Mark Leech, editor of Converse the national newspaper for prisoners criticised Lord Judge for making ‘what are in essence political statements’.

Mr Leech said: “It’s a bit rich for Lord Judge to criticise Judges in the European Court for not being elected – he is not elected either and unlike European Judges who play no part in the formal legislative process Judge is also a member of the House of Lords.

“Lord Judge is a political appointee in reality, appointed by the Queen but only on the recommendation of the Prime Minister – he should be apolitical and he would have done better to have criticised the Government for failing to implement the ECHR ruling on prisoner voting, instead of openly supporting the Prime Minister who put him where he is.

“Our senior Judges should not make what are in essence political statements while sitting on the bench – if he wants to become political resign from the bench and stand for parliament – until then he should button his judicial lip and not bring the judiciary into disrepute.”

Attorney General Warns Of ‘International Anarchy’ Over Prisoner Voting

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Flouting European judges over prisoner voting would risk international “anarchy”, the Government’s chief law officer has warned.

Attorney General Dominic Grieve, above, said sticking to international rules could be “irksome” at times.

But it had been the “settled view” of British governments for centuries that such obligations should be met.

The intervention came in evidence to the parliamentary Joint Committee on prisoner voting.

The MPs and peers are considering how to respond to a European Court of Human Rights ruling against the UK’s blanket ban on convicted prisoners taking part in elections.

David Cameron has said that the idea of overturning the ban makes him “physically sick”, and the Commons overwhelmingly rejected the prospect in an indicative vote.

The committee has been asked to consider three options for a draft bill: giving the vote to convicted prisoners serving up to six months, giving it to those serving up to four years or keeping the existing blanket ban.

Mr Grieve said parliament had the power to withdraw from the European Convention on Human Rights, or any other commitment.

“Many of these international legal obligations, they impose obligations on others which we think benefit the international order and indeed us,” he said.

“But at the same time they may at times impose obligations on us.

“That obligation may at times be irksome.

“You can always withdraw from an obligation by leaving a treaty or denouncing it.

“But while you are adhering to it, it seems to me that one has to think very carefully about what the consequences are in deciding that you can cherrypick the obligations that you are going to accept.

“Whilst it may be perfectly possible to disregard them you are creating a degree of anarchy in the international order that you are trying to promote.”

The Tory MP and QC – who personally argued the Government’s case to the court – said it would be “no slight matter” to ignore the ruling.

“You can’t expect to be able to get other countries to observe international legal obligations if you choose not to,” he said.

Thorbjorn Jagland, Secretary General of the Council of Europe, told the committee it would be impossible for the UK to leave the convention on human rights and remain a member of the council.

He warned that Britain’s international influence would be diminished if it decided to go for the “nuclear possibility” of not complying with the ruling, and the whole ECHR system would be compromised.

“The implications for the Council of Europe would be… that other countries will start to do the same and it will be the beginning of the weakening of the whole convention system,” he said.

“If one says that we can pick and choose the judgments that we want to execute, then others will say exactly the same and then this convention will be another convention, for instance like they have in the United Nations.

“They are very weak.

“They are there but there is no enforcement of the standards.

“If you start to pick and choose the judgments from the court of course the court will be weakened and in the end have no meaning.”

Mr Jagland added: “The impact for Britain as I see it would be negative.

“It would harm UK reputation and influence in Europe and in the world.

“Can you imagine what would happen if the UK as the founding father of this institution is to leave it?”

Mr Jagland said: “Europe cannot afford to let the UK leave the whole convention system, which is so important.

“None of us should put that to the (test).

“We should try to avoid it.”

The strength of the ECHR was that individual citizens from member states were able to petition it on points of law, he said.

Mark Leech editor of Converse the national newspaper for prisoners in England and Wales said the issue of prisoner voting brought into focus the sharp distinction between political reality and rhetoric.

Mr Leech said: “Politicians of every colour continually tell us they want to reduce reoffending, they want to help those in prison to lead law-abiding lives both in custody and after release, in fact there is a large notice to that exact effect pinned to the front gate of every prison in the country.

“And yet, when you try and see the translation of that theory into practice it falls at the first hurdle by refusing prisoners the ability to vote, excluding them from society, refusing to follow the judgment of the highest human rights court in Europe, a court the UK has signed up to and in which we played a central part in creating – criminal justice policies on rehabilitation are, sadly, shown to be nothing more than a sham.”