Way back in March 2004, in the case of Hirst v. United Kingdom, the European Court of Human Rights ruled that the 140-year-old blanket ban on prisoners voting was a breach of their fundamental right to participate in free and fair elections.
Seven years on and the UK government has still not complied with the ruling. Why so?
Well, significantly the government still wants to bar prisoners convicted of serious violence and sexual offences from voting.
Under the Hirst ruling this may have been possible. But in March the European Court of Human Rights delivered its judgement in Froidl v. Austria, which held an automatic voting ban for prisoners sentenced to over one year in prison also unlawful.
While the Court acknowledged in Froidl that "[f]ree elections and freedom of expression and particularly the freedom of political debate form the foundation of any democracy", it also stressed that "[t]he rights bestowed by Article 3 of Protocol No. 1 [to the European Convention on Human Rights, guaranteeing the right to free and fair elections] are not absolute".
To this end, the Court harked back to the decision in Hirst and held that:
"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 a law but by the decision of a judge following judicial proceedings."
Clearly then, any automatic or blanket restriction on prisoners voting is unlawful. And any decision on disenfranchisement must now be taken by a judge, "taking into account the particular circumstances". There must also be a "link between the offence committed and issues relating to elections and democratic institutions", which could mean that only those prisoners jailed for electoral fraud or crimes against democracy could be denied the right to vote.
Juliet Lyon, the director of the Prison Reform Trust, says there is "very little margin of appreciation" in the Hirst and Froidl rulings that would allow the British government to ban specific groups, such as sex offenders or the seriously violent, from voting. She believes that post-Froidl the most that is likely is that judges would be given the power to issue an order at the end of every trial if they felt the offender should lose their voting rights.
Later today, coalition ministers are expected to the tell the Court of Appeal that the prisoner voting ban will be lifted, albeit with exceptions -- tune back tomorrow for commentary on what the exceptions are and how they tally up with the Hirst and Froidl decisions...
- Nick Clegg struggling to avoid giving violent prisoners the right to vote (Guardian)
- Prisoners to get the right to vote (Guardian)
- Prisoners' right to vote behind bars 'should be restricted', say ministers (Telegraph)
- Barred from voting: the right to vote for sentenced prisoners (Unlock & the Prison Reform Trust)
- Prisoner voting rights (The Solicitor)
- Prison procedures and prisoners' rights (Findlaw.co.uk)
- Voting and elections (Findlaw.co.uk)
- Criminal law Q&A (Community)
- Find a solicitor (Contact Law)