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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DB, Re Application for Judicial Review [2007] ScotCS CSOH_73 (04 April 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_73.html |
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OUTER HOUSE, COURT OF SESSION |
|
P694/07 |
OPINION OF LORD MALCOLM in the petition of D.B. Petitioner: for
ญญญญญญญญญญญญญญญญญ________________ |
Petitioner: Carmichael, Barne; Balfour & Manson (for
Scottish Ministers: Cullen Q.C.; R
Advocate General for
[1] This
application for judicial review
concerns a challenge to the lawfulness of a
decision of the Scottish Ministers (the respondents) dated 27 February
2007 made under section 17(1)(a)(ii) of the Prisoners and Criminal Proceedings
(Scotland) Act 1993 ("the 1993 Act") to revoke the petitioner's release on
licence and recall him to prison. On
"A convicted person during the time he is detained in a penal institution in pursuance of his sentence.... is legally incapable of voting at any parliamentary or local government elections."
The petitioner is registered to
vote, and if at liberty on
"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."
In Hirst it was decided that article 3 of the first protocol
guarantees individual rights, including the right to vote. Universal suffrage is the basic
principle. Prisoners do not
automatically forfeit their right to vote, and any restrictions applied to them
in pursuit of a state's margin of appreciation must be proportionate and
justified by a discernible and sufficient link between the sanction and the
conduct and circumstances of the individual concerned. However section 3(1) of the 1983 Act imposes
a blanket restriction which applies automatically to all prisoners,
irrespective of the length of their sentence and irrespective of the nature or
gravity of their offence and their individual circumstances, and thus falls
outside any acceptable margin of appreciation.
In Smith the
"Any member of the Scottish Executive has no power.... to do any ... act, so far as the ... act is incompatible with any of the Convention rights...."
A first hearing took place on 3 and
[4] For
the petitioner Miss Carmichael's submission was straightforward. The consequence of the revocation of the
petitioner's licence is that he is once again subject to disenfranchisement on
the basis of legislation which infringes his rights under article 3 of the
first protocol. It follows that the revocation
is incompatible with the Convention and thus, standing the terms of section
57(2) of the Scotland Act, it falls outside the powers of the respondents. The revocation is null, void and of no lawful
effect. She sought declarator, reduction
of the revocation, and liberation of the petitioner. There is an attractive simplicity and
apparent logic to Miss Carmichael's submission, but, as explained below, I am
satisfied that it is wrong. For the
respondents Mr Cullen, Q.C. submitted that the revocation was a link in the
chain of events leading to the petitioner's disenfranchisement, but it did not
follow that it was an act incompatible with the Convention rights granted in article
3 of the first protocol. The act of
revocation engaged only articles 5 and 8 of the Convention. Any connection between the revocation of the
petitioner's licence and the infringement of article 3 of the first protocol is
too tenuous. Relying on a recent
decision in judicial review
the Court has
a wide discretion as to remedy, and, on any view, open-ended liberation is an
excessive request. Mr Moynihan
suggested that the petition is unusual in involving the interaction of devolved
and reserved powers. He described it as
an ingenious attempt to circumvent section 4(6) of the Human Rights Act 1998
(HRA) which operates to preserve the sovereignty of the Westminster Parliament and
maintains in force section 3(1) of the 1983 Act, notwithstanding the rulings in
Hirst and Smith. There is no good
reason why the petitioner should be excluded from the ban on voting which, pending
the current procedures to amend it, continues to apply to the prison
population. The petitioner's position
would have the absurd result that the Scottish Ministers' hands would be tied
whatever the dangers of leaving a convicted person at liberty on licence. Both Mr Cullen and Mr Moynihan observed, and
Miss Carmichael agreed, that serious questions would arise as to the power
of a court to impose a discretionary sentence of imprisonment. Counsel referred to various authorities, most
of which are mentioned in the discussion below.
Neither Mr Cullen nor Mr Moynihan moved their pleas to the
competency. They both asked me to refuse
the petitions on the basis that the revocation of the licence was lawful.
[6] These are immediate or first impressions. I now turn to some of the cases where section 57(2) and its equivalent in HRA have been discussed. All counsel made reference to R v HMA 2003 SC (PC) 21. At paragraph 47 Lord Hope of Craighead agreed with the view expressed by Lord Millett in an earlier case that if a member of the Scottish Executive acts incompatibly with Convention rights, there is no discretion to withhold a remedy. At paragraph 50 he agreed with Lord Steyn that "incompatibility" conveys the idea of inconsistency. "It requires a comparison to be made between the act of the member of the Scottish Executive and the relevant Convention right....". There was a difference of view between their Lordships as to the nature and content of the Convention right at issue in R., but that is separate from how the Court should go about identifying an incompatibility in the first place. At paragraph 17 Lord Clyde said that the word "incompatible" simply requires that the act should be in conflict with the Convention right. Lord Rodger of Earlsferry referred to a public authority "violating" or "infringing" a Convention right. In the present case the petitioner can plausibly seek support from these passages by pointing out that but for the revocation of his licence he would be free to vote, and that the revocation has subjected him to the objectionable blanket ban under section 3(1) of the 1983 Act. However, I consider that, properly understood, incompatibility in terms of section 57(2) is based on a mutual irreconcilability between the relevant act and the relevant Convention right, as opposed to the causality approach contended for by Miss Carmichael.
[7] The
complication of the necessary involvement of another factor did not arise in R.
However, something similar was considered in the earlier case of
"identify the persons upon whom article 6(1) imposed a correlative obligation. Whom does it oblige to act in such a way as to ensure a fair and public hearing? If as a matter of construction of the article, no obligation is imposed on the Lord Advocate, then no complaint of an infringement of this particular Convention right can give rise to a devolution issue."
In the present case a similar
question can be asked as to whether article 3 of the first protocol imposes an
obligation on the Scottish Ministers to ensure that the petitioner can vote, or
at least not to exercise their otherwise lawful powers in a manner which,
because of electoral law, causes the petitioner to lose his opportunity to
vote. Article 3 of the first
protocol places an obligation on the
"The acts of the Lord Advocate in bringing and maintaining the prosecution, tendering evidence and so forth, are likewise in my opinion capable of creating the conditions for an unfair determination of the charge but they cannot in themselves cause such an event and therefore infringe the provisions of article 6(1)."
In my opinion similar reasoning can
be applied to the particular circumstances of this case. Such disagreement as there was in the Privy
Council related to the position of the Lord Advocate as "master of the
instance" in Scottish criminal procedure and thus whether he had direct
responsibility for the continuation of the trial, an issue peculiar to the
circumstances of
[11] I was encouraged by all counsel to make a value judgement
of
the kind discussed by Lords Bingham and Nicholls in M. v The Secretary of State
for Work and Pensions [2006] 2 WLR 637.
In addition Mr Cullen asked me to decide the case by applying the
reasoning of Lord Hope at paragraph 47 of his judgment in R..
However I am not persuaded that I should accept either of these
invitations. M. required a decision as to whether a distinction based on sexual
orientation when assessing the child support payable by a non-residential
parent fell within the ambit of either discrimination under article 14 or
the right to respect for family and private life under article 8. Lord Bingham indicated that one must first
identify the core values which the article is intended to protect, and then
judge whether there is any "meaningful connection" between the specific
complaint and those core values, or whether any link is too tenuous or too
remote, and thus outside the scope of the protection afforded by the
Convention. Lord Nicholls said that one
should assess how "seriously and directly the discriminating provision or
conduct infringes upon the values underlying the particular substantive
article" in order to decide whether it is within the ambit of that
article. In R. at paragraph 47 Lord Hope addressed the exercise of judgment
involved when determining whether a period of delay in the determination of a
criminal charge amounted to undue delay, and thus was incompatible with
article 6. (That this was the
context of his discussion is confirmed by the explicit reference to the first
of two passages quoted from the judgment of Cooke P. in Martin v Tauranga District Court [1995] NZLR 419). Lord Hope said: "It is at that stage that there is room for
the flexibility which enables a balance to be struck between the competing
interests of the individual and of society."
However, once incompatibility is found "the result which section 57(2)
requires follows .... automatically."
Helpful though the guidance in M.
and in Lord Hope's judgment in R.
will be in many cases, I am not convinced that they apply in the perhaps
unusual circumstances of this case. The
incompatibility between the blanket ban contained in the 1983 Act and the
rights granted by article 3 of the first protocol has been authoritatively
determined. The issue before me is
whether an act of the Scottish Ministers, which is otherwise unconnected to
voting rights, lawful, and in the public interest, becomes incompatible with
that article because one consequence is that the ban in the 1983 Act once again
applies to the petitioner. While I can
see the potential relevance of concepts such as remoteness and "meaningful
connection", I think it important to recognise that this is a very different
question raising separate issues from those considered in M. and at paragraph 47 of Lord Hope's judgment in R.
In these circumstances I am content to base my decision on the reasoning
set out above.
[12] Miss Carmichael sought to support her position by reference to
"the foreign cases" as explained in R.
(Ullah) v Special Adjudicator [2004] 2 AC 323. For her the relevance of cases of this type
was that they illustrate circumstances in which an act, which in itself is Convention
compliant, for example extradition or explusion, is struck down because it
leads to a breach of a Convention right by another party, namely a foreign
government not subject to the Convention, typically by conduct amounting to
inhuman or degrading treatment. Miss
Carmichael submitted that, by parity of reasoning, this indicates that the
Scottish Ministers revocation of the licence can be quashed as unlawful, even
if, when viewed on its own, it is harmless so far as the Convention is
concerned, and only creates the conditions required for an infringement by
operation of the 1983 Act. It is
therefore necessary to consider these cases as explained in Ullah in a little detail, especially
since my view is that, rather than support Miss Carmichael's argument,
they confirm that it is wrong.
Mr Ullah was an Ahmedi Preacher from Judicial
Committee the issue had become focussed on whether
a contracting state could incur liability under the Convention by removing a
person only under and in terms of article 3, or whether issues might arise
when foreseeable ill-treatment in the country of origin violated other
articles, such as articles 2, 5, 6, 8 and possibly 9. It was held that the decision of the Court of
Appeal that only article 3 could be engaged in cases of this nature was too
narrow and restrictive. Lord Bingham of
Cornhill quoted the
"Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights." (Paragraph 89).
Thus a decision by a contracting
state to extradite a fugitive may give rise to an issue under article 3 and
hence engage the responsibility of that state under the Convention where
substantial grounds have been shown for believing that the person concerned, if
extradited, faces a real risk of being subjected to torture or to inhuman or
degrading treatment in the requesting country (paragraph 91). Subsequently the Strasbourg court said in Bankovic v Belgium (2001) 11 BHRC 435, paragraph 67, that it is "only in
exceptional cases" that acts of the contracting states performed, or producing
effects, outside their territory can constitute an exercise of jurisdiction by
them within the meaning of article 1 of the Convention. After a detailed review of the Strasbourg
jurisprudence it was decided in Ullah
that such exceptional cases are not restricted to article 3 but might
arise where the circumstances reveal that expulsion or extradition would
directly violate the principles of fundamental justice such that, in effect,
the removing state would be participating in a flagrant denial or gross
violation of fundamental rights. It was
stressed by Lord Bingham at paragraph 24 that "successful reliance demands
presentation of a very strong case". He
continued:
"The lack of
success of applicants relying on articles 2, 5 and 6 before the
[13] If translated to the circumstances of the present case, this provides
some support for the submission that the Scottish Ministers must place
considerable importance on the need to protect the public from dangerous
convicted persons when considering their powers to revoke a release on licence
under section 17 of the 1993 Act, and that in any balancing exercise
deprivation of the right to vote will always be outweighed by the public
interest reasons necessary to justify revocation of the licence in the first
place. However, in my view the
importance of Ullah goes further, and suggests that the "causation principle", as
described and relied upon by the claimants' counsel in Ullah, is an exception to the general rule, and should be applied only
in truly exceptional circumstances when to do otherwise would flagrantly
violate the very essence of a fundamental right recognised by the Convention,
sometimes called a "core value". Lord
Steyn's analysis confirmed that there may be wholly exceptional cases, such as D. v UK
24 EHRR 423, where member states come under a positive obligation to prevent
harm from non-state actors and where otherwise individuals would be exposed to
"foreseeable flagrant risks of violations of core guarantees"
(paragraph 29). As the Court of
Appeal said in Ullah, that would challenge
"the humanitarian principles that underlie the Convention." However, I consider it tolerably clear that
the circumstances of the present petition do not fall into the category of
cases which trigger the positive obligations discussed by Lord Steyn, nor do
they satisfy the stringent test discussed by Lord Bingham. I therefore conclude that Ullah does not demonstrate that the
question before me should be determined in favour of the petitioner by the
strict application of a "causation principle".
[14] Lord Carswell explained that "the foreign cases" are based
on the avoidance of conflict with the fundamental values of the democratic
societies making up the Council of Europe.
A consideration of the ruling in Hirst
confirms that it is not a fundamental value that all prisoners must be given
the vote, but rather that states have a wide margin of appreciation in this
area. Indeed it can be doubted that the
petitioner will enjoy the right to vote under new Convention compliant
restrictions on the franchise. Lord
Carswell cited a phrase adopted by the Supreme Court of Canada describing a
decision to expel an asylum claimant as one that would "shock the Canadian
conscience", again illustrating the exceptional nature of these cases. I doubt that my decision in this case will
shock the Scottish conscience. On the
contrary, to order the unrestricted liberation of a convicted person who has
still to complete his sentence and who is considered to be a danger to the
public, simply to allow him the opportunity to vote on 3 May, would be
likely to cause public consternation. Of
course, in itself such a consideration would not justify a decision to withhold
a valid remedy in law. However, if the
petitioner was held to be entitled to the remedies he seeks, in my view, and as
warned by Lord Steyn in R. at
paragraph 18, "the moral authority of human rights in the eyes of the
public" would be "undermined by allowing them to run riot in our justice
systems." In Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72 Lord Bingham observed at paragraph 9: "In the exercise of individual human rights
due regard must be paid to the rights of others, and the society of which each
individual forms part itself has interests deserving of respect". It is necessary to achieve "a fair balance
between the general interest of the community and the personal rights of the
individual, which have been described as inherent in the whole of the
Convention." Given that in Hirst the