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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/1439.html Cite as: [2010] EWCA Civ 1439, [2011] WLR 1436, [2011] ACD 30, [2011] 1 WLR 1436, [2010] 2 Prison LR 40, [2011] UKHRR 53, [2011] HRLR 10 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE BURTON
CO/83/2009
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LAWSand
LORD JUSTICE CARNWATH
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Peter Chester |
Appellant |
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- and - |
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(1) The Secretary of State for Justice (2) Wakefield Metropolitan District Council |
Respondents |
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Mr James Eadie QC and Mr Jason Coppel (instructed by The Treasury Solicitor) for the Respondent
earing dates : 3 November 2010
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Crown Copyright ©
Lord Justice Laws:
INTRODUCTION
THE STATUTES
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
ECHR Article P1-3 provides:
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
ROPA s.3(1) provides:
"A convicted person during the time that he is detained in a penal institution in pursuance of his sentence [or unlawfully at large when he would otherwise be so detained] is legally incapable of voting at any parliamentary or local government election".
EPEA s.8 includes these provisions:
"(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).
(2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region..."
THE FACTS
THE JURISPRUDENCE
Hirst (No 2) (2006) 42 EHRR 41
"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 60 the 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.
"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."
"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."
"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."
Frodl (Application No 20201/04)
"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)."
Greens & MT v UK (Applications 60041/08 and 60054/08)
"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.
"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."
THE APPELLANT'S SUBMISSIONS
"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."
CONCLUSIONS IN PRINCIPLE
"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."
Lord Justice Carnwath:
Lord Neuberger MR: