Professor Jacqueline Hodgson
School of Law,
University of Warwick, UK
Systemic, Psychological and Judicial Issues in
Imprisonment
Trudeau Foundation; Les Entretiens Jacques Cartier
Lyon, 26-27 November 2013
“No one should be in any doubt: prisoners
are not getting the vote under this
Government.”
David Cameron, Prime Minister
(Prime Minister’s Questions 24 October
2012)
 Until
1870, ‘Civic death’ where forfeited
land, voting rights etc
 1870 reform, only those sentenced to
more than 12 months imprisonment lost
the right to vote
 1969 Representation of the People Act
disenfranchised all prisoners
 Those on remand, in contempt & fine
defaulters can vote
 Hirst
v UK (2005) found that the UK
‘blanket ban’ on all prisoner voting was
in breach of the ECHR: arbitrary &
disproportionate
 Re-affirmed in Scoppola v Italy (no. 3) in
which the UK was permitted to intervene
 Compensation claims
 Voting Eligibility (Prisoners) Draft Bill
under pre-legislative scrutiny by Joint
Committee (report 18 December 2013)
 Art
25 of the International Covenant on
Civil and Political Rights
 UK argues: the temporary
disenfranchisement of convicted
prisoners pursues a legitimate aim, is
proportionate & so constitutes a
‘reasonable’ restriction under Art 25
ICCPR
 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.
 ECtHR has interpreted this as
guaranteeing all citizens a right to vote
 In
19 countries: all prisoners can vote
 In 7 countries: all prisoners barred from
voting (including UK)
 In 16 countries: restrictions based on
nature of crime, length of sentence
 Some of these restrictions extend beyond
imprisonment
 UK
argued wide margin of appreciation
re defining restrictions on right to vote
 Disqualification to prevent crime, punish
offences, enhance civic responsibility,
promote respect for the law
 Ban promotes legitimate aims
 Ban proportionate: only affects those
convicted of crimes sufficiently serious to
warrant immediate imprisonment
 Restrictions
permitted, but, principle of
proportionality requires a discernible &
sufficient link between the sanction & the
conduct & the circumstances of the
individual disenfranchised.
 UK courts do not mention/address
disenfranchisement
 No clear link between case facts or gravity,
and disenfranchisement
 Automatic, indiscriminate ban outside
margin of appreciation
 Similar
issues to Hirst but ECtHR set down
principles for any prisoner
disenfranchisement:
 for narrowly defined group serving
lengthy term
 Need direct link between case facts and
sanction of disenfranchisement
 Such a measure preferably imposed by
judge following judicial proceedings
 ECtHR
first said lifetime ban for those
sentenced to life breached Protocol 1 as
general measure, applied indiscriminately,
with no consideration of nature/seriousness
of offence
 Grand Chamber found no breach: pursued
legitimate aim of enhancing civic
responsibility, respect for the rule of law &
ensuring the proper functioning &
preservation of the democratic regime
 Adjusted ban to facts & gravity of case, and
conduct of offender
 Grand
Chamber did not share Court’s
interpretation of Hirst
 …the Contracting States may decide
either to leave it to the courts to
determine the proportionality of a
measure restricting convicted prisoners’
voting rights, or to incorporate provisions
into their laws defining the circumstances
in which such a measure should be
applied. (para 102)
Offending of the level of gravity that attracts a prison
term, amounts to a breach of the social contract and
so removes the entitlement to participate in the
democratic process until that sentence has been
served
 Policy pursues legitimate aims of respect for the rule
of law, and in applying only to those whose offending
is sufficiently serious to merit a prison term, it is
proportionate
 cf Sauvé v Canada: the ban on voting for prisoners
serving a sentence of two or more years’
imprisonment undermined rather than promoted,
respect for the law & democracy as law’s legitimacy
derives from the citizen’s right to vote

 “…the
removal of the right to vote…is not
only a punitive measure…it goes to the
essence of the offender’s relationship
with democratic society. Its removal
underlines to the prisoner the
importance of that relationship, and his
breach of it in committing a serious
crime. The reinstatement of the right
marks his re-entry into society is aimed
at enhancing his sense of civil
responsibility and respect for the rule of
law” (Ministry of Justice 2009)
 In
Feb 2011, Parliament was resounding
in its support for the current legal
position: the motion was supported by
234 votes to 22
 No constitutional legitimacy to act in this
way, overturning Parliamentary law
 Living instrument approach allows
expansionist tendencies
 Questioned competency of Court
 Enfranchisement
would develop social
responsibility and prepare for life
outside prison
 Disenfranchisement disproportionately
affects already marginalised groups (see
also Sauvé v Canada
 Effect is arbitrary – depends on whether
there is an election during sentence term
Cannot justify as punitive measure as does not
fulfill any objectives of punishment
 It will not assist in the rehabilitation of offenders
(it is argued that it achieves the reverse, by
isolating and excluding prisoners); nor their
incapacitation; nor does it serve as a deterrent
 Court in Hirst noted that the punitive aims of
disenfranchisement were not met in that case as
the ban applied after the punitive part of the
sentence had been served
 Many bad & dangerous people – and some of
them are in prison

 May
choose to ignore ECtHR but
undermines UK’s moral authority and
would weaken Convention system
 Set a poor example; would justify Russia,
Turkey or Ukraine ignoring judgments
 EU obligations may ensure ECHR still
applicable – at least when EU law in play
 Mistake to portray Strasbourg as
separate from UK, rather than to continue
to influenced ECtHR with UK decisions
 Voting
Eligibility (Prisoners) Draft Bill
options:
 No change; Ban on voting where
sentenced to more than 6 months (would
return vote to less than 10%); more than
4yrs (would return vote to 45%
prisoners)
 Last 2 options would satisfy Court
 Why
distinguish by sentence length?
 Why not nature of offence, or conduct of
offender?
 Sentence criteria continues to ignore this
 Why disenfranchise prisoners at all?
Breached norms of criminal law – serve
prison sentence to atone; no need for
additional civic punishment.
 Would not consider for breaches of other
legal norms