VEP 0008

Written Submission by Dr Bharat Malkani (VEP 0008)

Introduction

1. I am a lecturer and researcher in the field of Human Rights and Criminal Justice. I work in the Birmingham Law School at the University of Birmingham. My research on the rights of those caught up in the criminal justice system has been published in leading academic journals,[1] and I have also published research on the relationship between domestic and non-domestic human rights law.[2] My PhD examined how judges in the UK use European and international human rights law. I regularly teach the topic of prisoners’ voting rights – and prisoners’ rights in general – to both Final Year law undergraduates, and postgraduate students. I have kept abreast of developments both home and abroad in relation to prisoners’ voting rights and I have also read widely about prisoners’ rights in general. I can therefore offer an informed opinion about the draft Voting Eligibility (Prisoners) Bill.

2. The views put forward in this submission do not necessarily reflect the views of Birmingham Law School or the University of Birmingham.

Summary

3. This response to the request for evidence addresses the three options put forward in the draft Bill, and submits that only the first option (disqualifying those who are sentenced to a period of four or more years in prison) is arguably legally viable, albeit still problematic. It is ultimately submitted that adopting a procedure akin to that which operates in Germany or France is legally and philosophically more sound than any of the options in the draft Bill. In short, the right to vote should either only be denied to those who are convicted of crimes against the democratic order, or should be denied on a case-by-case basis by the judge at the sentencing stage of a trial, so that (a) there is a clear and articulated link between the crime committed and the punishment of disenfranchisement, and (b) the punishment of disenfranchisement is not a disproportionate punishment.

4. These submissions are made by addressing, in turn, each of the nine additional questions that were put forward in the request for evidence.

Written Submission

Question One: What are the historical and philosophical justifications for denying prisoners the right to vote?

5. The statutory disenfranchisement of prisoners finds its historical roots in the Forfeiture Act of 1870. This Act, though, cannot act as an historical justification for today’s ban. In 1870, suffrage was not universal in the way that it generally is today. Voting was a privilege for those in the upper classes of society. Disqualification from voting was therefore imposed on those who committed treason or felonies in order to impose a “civic death” on them, and was also used as a means of relegating the offender to the status of a “common man”, who at that time was not allowed to vote.[3] Disenfranchisement thus served a very particular and explicit punitive aim: to condemn the convicted to a life of the “common man”. Today, though, the common man (and woman) is entitled to vote, and thus the contemporary disenfranchisement of prisoners cannot be justified with reference to the rationale behind the 1870 Act.

6. Perhaps more importantly, though, the 1870 Act did not impose a blanket ban on prisoner voting. Only serious felonies attracted disenfranchisement. Those convicted of misdemeanours and those serving less than 12 months for a felony retained the right to vote. Again, then, the 1870 Act does not serve as historical justification for today’s blanket ban.

7. Of course, the Government does not rely on the 1870 Act as the sole historical justification for today’s ban, and it is worth tracing the evolution of prisoner voting rights from 1870 to the present day. The disenfranchisement of prisoners was furthered by the Representation of the People Act 1918, which expressly stated that prisons were not to be classified as residences for the purposes of this Act. Moreover, prisoners could not claim residency at their home address either, since the courts had stated that an individual breaks their residence upon conviction. In Powell v Guest, Byles J stated that the “legal inability [to reside at a private property] caused by the criminal and voluntary act of the party ... breaks the residence, and destroys the qualification.”[4]

8. Put another way, prisoners were not statutorily denied the right to vote because of the offence that they had committed. Rather, they were judicially deprived of residency, which meant that in practical terms they could not register to vote.

9. In 1948, the Representation of the People Act introduced the postal ballot. Section 8(1)(e) made postal ballots available to individuals “no longer resident at their qualifying address”. This had the consequence of enabling prisoners incarcerated in a prison outside their constituency to vote.[5]

10. And in 1967, when the Criminal Law Act abolished the distinction between felonies and misdemeanours, the bar to convicted felons voting under the 1870 Act was abolished. The Seventh Report of the Criminal Law Revision Committee made it clear that granting the right to vote to all prisoners was a consequence of the abolition of the distinction.[6] From 1948 to 1969, then, prisoners were generally able to vote.

11. Another Representation of the People Act was passed in 1969, which did impose an outright ban on prisoners’ right to vote. This was not tied to the 1870 Act, though, and it is important to be clear about this. The 1870 Act expressly deprived some prisoners of the right to vote, and it also prevented such people from standing for public office. As stated in paragraph 5, this was intended to relegate the privileged person to the status of “common man”. The 1969 Act said nothing about convicted prisoners being prevented from standing for public office, and so it is clear that the drafters of the 1969 Act were not taking guidance or inspiration from the 1870 Act.

12. Moreover, the ban on voting in the 1969 Act was passed with practically no debate in Parliament. The only reference in the parliamentary records lies in a report provided prior to the Act being passed, in which it was recommended that “[a] convicted prisoner who is in custody should not be entitled to vote”.[7] There is no explanation or attempt to justify such a stance, though. It is debateable therefore whether this can serve as an historical justification for the present ban. The evolution of human rights law – both at the European level but also at the domestic level – requires that any governmental interference with a human right be justified. The lack of justification offered during the passage of the 1969 Act precludes it from providing contemporary justifications for the current disenfranchisement of prisoners.

13. The blanket ban was again upheld without debate in s.3 of the Representation of the People Act 1983, and again without debate in the Representation of the People Act 2000.
     
14. To put it bluntly, then, there is no historical trend or justification of complete prisoner disenfranchisement. The current arrangements are based on an Act from 1969 that received no debate and provided no explanation or rationale.

15. If the current ban on prisoner voting cannot be justified with reference to history, then it might be justified on philosophical grounds instead. The Government provided three philosophical justifications when arguing the case of Hirst v United Kingdom (No 2).[8] First, it is part and parcel of punishment. Second, denying prisoners the right to vote will encourage a sense of civic responsibility in offenders, thus reducing the chances of reoffending. Third, public confidence in the criminal justice system would be diminished if prisoners were allowed the right to vote.[9]

16. The first justification offered by the Government is not entirely without merit. As explained in paragraph 24 below, denial of the right to vote can be a suitable part of punishment. However, the second and third grounds are not sustainable. It is just as feasible to argue that denying prisoners the right to vote will only serve to alienate prisoners further, thus increasing the chances of reoffending. Also, denial of a fundamental human right cannot be based on public opinion. As explained in paragraphs 18-23 below, one of the purposes of human rights law is to protect vulnerable minorities from the whims of the majority, and thus public opinion should rarely be used as a reason for curtailing the rights of a vulnerable group.

17. In sum, justifications for the contemporary ban cannot rely on historical traditions, but a ban on voting can be justified with reference to philosophies and theories of sentencing and punishment.

Question Two: Why is the right to vote considered to be a human right?

18. The right to vote is a fundamental human right because it ensures the protection of other, perhaps more obvious human rights, such as the right to life, and the right to freedom from cruel treatment. This is because without the right to vote, governments would be under no incentive to protect the rights of individuals. It is the perpetual threat of losing the next election that ensures that governments act responsibly towards the people, and acts in the people’s interests. Ensuring that people have the right to vote enables these people to raise awareness about any abuse of rights that they are suffering, and to have a say in how the country is run.

19. History is replete with examples of the right to vote acting as a precursor to the protection of other rights. Women and ethnic minority groups, in this country and others, historically depended on the right to vote as a means of securing fair and equal treatment in other areas of life. One need only consider the current controversies over plans to repeal parts of the Voting Rights Act 1965 in the United States of America to appreciate how important the right to vote is to the whole scheme of human rights.[10] The centrality of democracy and the vote to the protection of human rights was recognised perhaps most profoundly in the United States Declaration of Independence, and finds further confirmation in the Universal Declaration of Human Rights.

20. Indeed, this Government has taken a lead in promoting democratic values and the right to vote in other countries, where denial of the right to vote has been accompanied by other grotesque violations of human rights.

21. In the context of prisoners, I assume that the government believes that prisoners still have the right to life and the right to freedom from cruel treatment and torture. Giving prisoners the right to vote would help ensure that state authorities present and future are under an incentive to respect the more traditional rights of prisoners, such as the right to life.

22. This is exceptionally important in the context of prisons, or any other state institution in which a group of people are hidden from public view. Prisoners are at the mercy of the state in a way that free individuals are not, and it is in this sense that prisoners are in a particularly vulnerable condition. Of course it is true that some prisoners are violent and dangerous, and thus not vulnerable in the traditional sense of the word. However, by virtue of their confinement, even dangerous people can be classified as a vulnerable minority. Consider, for example, the startling number of deaths in custody. A cursory glance at the website of INQUEST – a charity that provides support to families of those who die in custody – reveals that prisoners are much more susceptible to contentious deaths.[11]

23. Unfortunately, though, prisoners are rarely cast as a group of people that require protection, as they are often subject to inaccurate and hysterical media reports that inflame public opinion against them. Prisoners are generally cast in the press as violent and disrespectful of society,[12] yet the evidence shows that the majority of prisoners suffer from mental health issues and are generally from disadvantaged backgrounds.[13] Giving prisoners the right to vote would go some way to alleviating the vulnerability of prisoners as the state would be incentivised to protect at least some of the more basic interests of prisoners notwithstanding inaccurate and misinformed public opinion. Indeed, if the state was incentivised to protect the welfare of prisoners, this might lead to an overall decrease in the number of applications made to the domestic courts and the European Court of Human Rights about alleged violations of prisoners’ other rights.

Question Three: Is disqualifying prisoners from voting a suitable part of their punishment?

24. Disqualifying prisoners from voting can, in principle, form a suitable part of their punishment. Punishments are generally designed to fit the crime – so violent offenders, for example, are incarcerated in order to protect the public, and even those who commit offences against property can be incarcerated as the deprivation of liberty serves to punish them. If a person has committed a crime against the democratic process, such as electoral fraud or abuse of public office, then disqualification from taking part in the democratic process can form a suitable part of their punishment.

25. It might be argued that all crimes are, by definition, a crime against the democratic process, since every crime involves a transgression of the rules agreed to by the democratic society. Logically, then, every transgression of the criminal law could be met with disqualification of the right to vote, since all criminal laws reflect the values agreed to by society. Of course, though, it is unlikely that the government or anybody else would seriously suggest that those who break the speed limit while driving, for example, should lose the right to vote. At the moment, this quandary is resolved by taking the view that only those crimes that are serious enough to warrant imprisonment also warrant disenfranchisement. However, there is no a priori rational connection between imprisonment and disenfranchisement. Put another way, there is no reason why a crime that does not result in imprisonment, for whatever reason, does not warrant disenfranchisement.

26. To explain this, it is helpful to refer to Lord Wilberforce’s famous statement from Raymond v Honey, in 1983.[14] In this case, Wilberforce said “under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.”[15] This is because a person is sent to prison as punishment. The deprivation of liberty is the punishment. Any other punishment has to be inflicted expressly or be a necessary implication of imprisonment. The issue, then, is whether the right to vote is taken away expressly or by necessary implication of imprisonment.

27. Although the right to vote has been taken away expressly by the Acts discussed above, the lack of explanation is problematic. The rule of law requires that substantive infringements on rights and liberties be carefully and expressly justified. Thus, the deprivation of the right has not been expressly justified or explained.

28. An example of a right that is taken away, or limited, by necessarily implication of imprisonment would be the right to family life. It is axiomatic that the fact of imprisonment will limit the extent to which a person can see their family. However, it is not axiomatic that imprisonment will result in the loss of the right to vote. It might have been axiomatic before the postal ballot was introduced, but it is certainly not axiomatic in contemporary times.

29. At present, then, the automatic disenfranchisement of prisoners cannot be considered a necessary implication of imprisonment. If it is to form a suitable part of punishment, some explanation needs to be given as to what punishment it serves, and why it is needed as an additional punishment to the loss of liberty specifically. Currently, disenfranchisement is not tied to the nature of the crime committed; and it does not take into account the fact that people avoid terms of imprisonment (and thus retain the right to vote) for all sorts of reasons that do not reflect the gravity of the crime.

Question Four: What are the financial implications of maintaining the current ban in terms of claims by prisoners for compensation?

30. This is difficult to answer, as it depends on (a) the number of prisoners who claim compensation, and (b) whether all prisoners since Hirst was decided in 2005, including those since released, are entitled to compensation, or whether only those who are currently incarcerated are entitled to compensation. In a document prepared by the London School of Economics, it is estimated that compensation claims could amount to as much as £120 million in respect of applications already lodged.[16] There is no telling how many more applications might be subsequently lodged. The Government should be wary of the political ramifications of paying compensation that could be easily avoided.

Question Five: Is sentence length a legally robust basis on which to retain an entitlement to vote?

31. From the decision in Scoppola v Italy (No 3),[17] it would appear that it might be. The European Court of Human Rights had suggested in Frodl v Austria[18] that sentence length was not an appropriate basis, but in Scoppola the Court suggested that Member States have a wide margin of appreciation in this issue, and so basing disenfranchisement on sentence length might be an approach that comes within the State’s margin of appreciation. However, disenfranchisement must still not be arbitrary, and the punishment must remain proportionate.

32. For this reason, the second option – disqualifying those sentenced to six months or more – is not appropriate, as it could still have arbitrary effects. A person sentenced to two years imprisonment might not feel the effect of the ban if there is no election during that two year period, whereas a person sentenced to seven months for a less serious offence might well feel the effect of the ban if there happens to be an election during that time. This would have the rather bizarre effect of the more serious offence not being punished as harshly as the less serious offence.

33. The first option – disqualifying those sentenced to four or more years – is probably more legally robust, as everyone sentenced to four years or more will miss at least one local or parliamentary election. However, English courts have routinely pointed out that punishments must be proportionate to the offence,[19] and it is the issue of proportionality that makes sentence length a dubious basis on which to base disenfranchisement.
     
34. To explain this, imagine that two people commit two separate offences of Assault Occasioning Actual Bodily Harm (ABH). ABH is generally punishable by up to 5 years imprisonment, depending on the severity of the harm caused, and the circumstances in which the harm is inflicted.[20] The first offence might attract a term of 3 years imprisonment, whereas the second offence might be considered more serious, and thus be given 4 years. The longer sentence in the second case reflects the greater seriousness of the crime. Moreover, the gradation in sentences reflects a proportionate approach to sentencing.

35. Under the proposals, though, the second offender would also lose the right to vote. In other words, they would receive a greater punishment in terms of sentence length, plus another additional punishment in disenfranchisement. This additional punishment might, in the eyes of the English courts and the European Court of Human Rights, render the whole punishment disproportionate and thus legally unacceptable.

36. A more legally robust approach would be to punish both offences with, say, 3 years imprisonment, but then add disenfranchisement to the second offence to reflect the gravity of the offence when compared to the first offence. In other words, rather than base disenfranchisement on sentence length, disenfranchisement can be based on the severity of the offence.

37. Indeed, the approach suggested in paragraph 37 above would go some way to cut the prison population, which would help the Government achieve its aim of saving money in these times of austerity.

38. It is for this reason that tying disenfranchisement to the nature of the offence (eg, electoral fraud), or giving the decision to disenfranchise to the sentencing judge, is more legally and philosophically robust than the options in the draft Bill, as it would be less arbitrary, and more proportionate. The sentencing judge could either give a sentence of, say, 4 years, or a sentence of 3 years plus disenfranchisement. Indeed, the judge would know whether an election is coming up in that 3 year period, thus meaning that the punishment would not be arbitrary. That is, the disenfranchisement would be deliberate, considered, and justified according to the severity of the crime.[21]

Question Six: What would be the likely legal consequences, both domestically and internationally of:

a) keeping the law as it is?

39. This would incur considerable legal consequences, both domestically and internationally. The European Court of Human Rights has repeatedly said that a blanket ban is incompatible with the UK’s obligations under the Convention, and a domestic court would take this into account if the law was challenged domestically. It is difficult to see how a domestic court could read down legislation such as this so that it is compatible with the Convention, and the most likely scenario would be a declaration of incompatibility. As pointed out in paragraph 30, the UK would still face claims of compensation for not complying with the decision in Hirst.

b) passing legislation giving some prisoners the right to vote, but in a way that maintains a form of blanket restriction?

40. This is unclear. If a restriction is blanket, then by definition no prisoners can vote. It might be possible to have a system whereby all prisoners are presumed to lose the right to vote unless they can provide a compelling reason to be given the right, but this would create quite an administrative burden. Prisoners would have to apply for the right, and presumably a judge would have to consider the application. The processing of each application would probably be an inefficient use of public resources.

41. The reverse might be more workable: all prisoners retain the right to vote unless, at the sentencing stage, the judge considers it appropriate and in the public interest to remove the right to vote. Guidance on this would have to be issued to judges in order to avoid inconsistencies, but this would be no different to the guidance issued to judges for the discretionary sentencing schemes that we have in place already.

c) seeking to comply by enfranchising the minimum number of prisoners possible consistent with our international legal obligations?

42. This would be legally sound, but it is not clear what the “minimum number of prisoners possible consistent with our international legal obligations” is.

Question Seven: Would giving prisoners the right to vote have any significant administrative impact on either the prison system or the Electoral Commission?

43. Assuming that prisoners are given a postal vote, this would only involve (a) making sure that prisoners have the opportunity to register for the vote, and (b) ensuring that prisoners put their ballots in the post in time to be counted for an election.

44. Currently, there appears to be little administrative burden in giving prisoners on remand the vote, and the procedure set out in PSO 4650 could be rolled out to sentenced prisoners. Although there would be some administrative burden, this would almost certainly not equal the sum payable in compensation.

Question Eight: Is there any evidence to suggest that allowing prisoners to vote would have a significant impact on particular constituencies?

45. No. Prisoners would not vote in the constituency that the prison happens to be located in. Prisoners would be given a postal vote for the constituency that their home is registered in.

Question Nine: What lessons can be drawn from the experience of other countries regarding prisoner voting?

46. At the moment, within Europe, our blanket ban keeps us in the company of Armenia, Bulgaria, Estonia, Georgia, Hungary and Russia.

47. If the UK wishes to be bracketed alongside the likes of Russia and Georgia in terms of respect for human rights, then we should keep the law as it is. However, if we wish to align ourselves with Western European states, then we should consider their approaches to this issue. Germany and Portugal tie disenfranchisement to the nature of the crime. If the crime is against the state or the democratic order, then the right to vote is removed. Clearly, the punishment is designed to fit the crime. In France, it is recognized that disenfranchisement is an additional punishment to the sentence imposed, and thus disenfranchisement must be justified and proportionate in each case (as explained in paragraphs 34-38 above). Spain and Ireland do not remove the right to vote at all.

48. It can hardly be said that Spain, Ireland, Germany or Portugal suffer from corrupt politicians or a deficit in the democratic order. Russia, on the other hand, has a dubious record in respecting human rights, democratic values, and the rule of law. Put another way, we can see from the experience of other countries that there is no correlation between giving prisoners the right to vote, and the credibility of the democratic order. If anything, those with a more credible democratic order appear to give at least some prisoners the right to vote, and it is the more authoritarian countries that do not.

49. Outside Europe, it might be argued that we should look towards the United States since we share an Anglo-American tradition. It is true that only two states – Maine and Vermont – allow felons to vote. However, we need to seriously consider whether we wish to follow the path of America in terms of criminal justice policies generally. America has a reputation of having particular harsh criminal justice policies, with most states having the death penalty and sentences of life without the possibility of parole. In matters of criminal justice, we are generally more akin to our Western European neighbours than we are to the United States.

Concluding remarks

50. I hope that the above information has made the following points clear: (a) a blanket ban on prisoner votes cannot be retained legally, and cannot be justified philosophically; (b) any restriction on prisoners’ fundamental human right to vote must be proportionate to the punitive goal, linked to a theory of punishment, and linked to the crime; (c) tying disenfranchisement to sentence length is feasible, but still problematic; and (d) the more legally and philosophically robust approach would be to either disenfranchise those convicted of crimes that represent attacks on the democratic order, or to give the sentencing judge discretion to disenfranchise prisoners according to the circumstances of each case. On the latter point, it would be assumed that the Sentencing Council would draft guidelines for judges. Issues such as remorse, gravity of offence, effect on the local community and so on could be taken into account.

June 2013

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