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Prisoners’ Voting Rights: Addressing the Unaddressed

Picture © Andy Stenning

About The Author

Joseph Switalski (Guest Contributor)

Joe graduated from Durham University in 2013 with a 2:1 in Law, and subsequently undertook the Bar Professional Training Course at Nottingham Trent Law School. Joe is to start his pupillage with a leading London family law set in 2015. Outside of the profession, he endures the bittersweet existence of supporting both Leeds United and Arsenal.

Of all the questions that one might be asked in an interview for a pupillage or a training contract, perhaps the one that concerns prospective candidates the most is this: what law would you change and why? It was in this context that my view on prisoners’ voting rights began to crystallize.

Prisoners’ voting rights are frequently debated, most recently seen when prisoners claimed that their human rights had been contravened by being prohibited to vote in the Scottish Referendum and the 2009 European Parliament elections respectively. The issue tends to divide opinion, yet the more I delved into the subject, the more my position hardened from a vague support of the right of prisoners to vote to a feeling that the way in which politicians portray the issue amounts to intellectual dishonesty.

For an analysis of how the issue of prisoners’ voting rights has been handled by domestic courts and the European Court of Human Rights, see the following articles written by Ivonna Beeches ‘Controversy behind the Scottish Referendum: Prisoners’ Voting Rights’and Thomas Horton ‘The role of the UKSC recently determined following Chester and McGeoch’ or direct yourself to the judgments in Hirst v. the United Kingdom (no.2) [2005], Chester, R (on the application of) v Secretary of State for Justice (Rev 1) [2013] and Firth and others v. The United Kingdom [2014].

From a legal perspective, the issue is somewhat settled. In Firth, the overall conclusion of the European Court of Human Rights was that whilst Article 3 of Protocol 1 of the Convention had been breached, the prisoners’ legal costs were not “reasonably and necessarily incurred” because a clear precedent had already been established with regards to prisoners’ voting rights.

Therefore, the position we are left in is wondering when and how the UK Government will act. What follows is solely intended to be a discussion of the rationale that underpins why prisoners are denied the right to vote and how that policy is reconciled within the wider aims of the criminal justice system.

A Brief History of Suffrage

Perhaps the most telling explanation of why prisoners are denied the vote can be found in the history of voting rights in the United Kingdom. Strictly speaking, the right to vote has never been taken away from a certain classification of citizens. Starting with the ‘Forty Shilling Freeholders’ of King Henry VI, a system in which only male owners of property of a certain value were permitted to vote, and moving towards enfranchisement of all men and women above the age of 18; the right to vote in the United Kingdom has gradually been awarded to different groups within society as representative democracy has evolved.

Viewed in this light, it is unsurprising that few, if any, senior politicians have been willing to speak up on behalf of convicted criminals. Political wisdom would indicate that the working man or woman, that demographic whose approval is so desperately sought, are unlikely to find favour with politicians willing to spend time and energy on defending the rights of prisoners. In February 2011, the House of Commons returned a vote of 234 to 22 in favour of continuing the ban on prisoners voting as opposed to giving those with a custodial sentence of less than 4 years the right to vote. This is illustrative of how the political classes, from across the parties, view the issue as one that has the potential to be incredibly damaging. My concern is that this reluctance stems from simplistic notions of “good” and “bad” rather than a reasoned evaluation of why the ban is in place.

Currently, it is only prisoners, people under the age of 18 and members of the House of Lords who are denied the vote amongst British citizens; the only caveat being that prisoners on remand, those who are yet to be convicted but await trial, retain the right to vote. In response to numerous judgments by the European Court of Human Rights, all of which at their essence held that a blanket ban was in violation of the European Convention of Human Rights, a joint Committee of both the House of Commons and Lords published a report in December 2013 recommending that prisoners serving a custodial sentence of less than 1 year should be permitted to vote. The Government is yet to act on that recommendation.

Defending the Ban

Let us briefly deal with some of the more practical concerns that are often raised when prisoners’ voting rights are discussed. First, there are those who worry that were prisoners to have the vote, it would turn certain constituencies housing large prisons into areas where the prisoners’ votes could have a disproportionate outcome on elections. The fear here is that local MPs would pay undue attention to the concerns of prisoners in exchange for their electoral influence. Ultimately, this argument of practicalities cannot explain why the ban exists. From an administrative perspective, it would not be difficult to allow prisoners to vote as a member of the constituency in which they last lived. A similar system is already in place to permit British citizens living abroad to vote.

Second, there is the perception that more extreme, niche parties would be encouraged to deploy policies specifically designed to entice prisoners to vote in their favour. There are numerous objections to be raised in this regard. As far as general elections are concerned, the first past the post system, allied with the above observation regarding constituency registration, would render it so that prisoners would not be able to operate as a stand-alone, decisive group within elections. According to most recent figures, the prison population of the United Kingdom stands at around 85,000. Factoring in how that number would be divided up amongst constituencies, it is far from a significant figure. Moreover, it is hard to imagine extreme right-wing parties adopting policies designed to offer a more palatable existence for prisoners.

Third, the objection that rings most hollow, in my view, is that prisoners entitled to the vote would probably not use it. Admittedly, this may well be the case. Sadly, the same could be said of the majority of the electorate; only 65% of eligible voters registered a vote in the 2010 general election. Were we to follow this flawed line of logic, perhaps we ought to revoke the vote from 18-24 year olds, their turnout being the poorest amongst the various age demographics. To dismiss a debate that goes to the very heart of the democratic process on these grounds is to ignore what the debate is fundamentally addressing. Who is able to vote, quite apart from who does vote, says a great deal about our democratic values as a whole.

What is then the most relied upon reasoning to support the continuation of the ban? If the idea of prisoners voting makes David Cameron ‘feel physically sick’, surely there must be an explanation as to why it persists. In my view, the only argument that legitimately maintains the ban is this: those who have committed a crime have offended society’s rules, as laid down by law, and as a consequence forfeit a number of rights, including their physical liberty and right to vote in elections.

Problems of Principle

Though many may be comfortable with the idea that prisoners forfeit the right to vote as a part of their overall punishment, there are three consequences of the ban that its political supporters are reluctant to deal with.

Criminal law theorists point to four principal aims of prison as a method of delivering justice: punishment; deterrence; protection of the public; and, rehabilitation of offenders. The first two of those aims can be captured within the above argument; losing your vote is both a punishment and a deterrent to others. It is in the latter aim that the message the criminal justice system sends is unclear. Prisoners are encouraged to reflect on their behaviour, to examine what they can offer to society, to develop their skills and to avoid the problems that may have contributed to their criminality. At its most basic, we are hoping that prisoners will invest in the idea that they can re-integrate in society, yet we deny them what is generally considered the most significant tool in influencing the world which they will encounter once their sentence is finished.

Supporters of a ban on prisoners voting retort this critique with the language of ‘suspension’. They argue that the right to vote is suspended and that the fact it can be reacquired on release is motivation in itself to re-integrate within society. At the time of the decision in Hirst, the then Home Secretary had this to say:

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.

Is it accurate to say that the convicted prisoner forfeits their right to influence how the country is governed only for the duration of their incarceration? Suppose a general election brings about a governmental policy that the prisoner finds particularly disadvantageous and that is likely to persist for some time after his release; can we really treat this as ‘suspension’ for the period of their detention? This idea of ‘suspension’ becomes more troublesome when one looks at the overall scheme of how the state interacts with prisoners upon them being convicted. It is not as though their involvement in society is entirely ‘suspended’. Prisoners continue to pay income tax on investments and work they may be able to do; they still pay child support payments as required; if they die whilst in prison, the state still takes an interest in their estate and any tax due on it. There are a number of ties to society that prisoners retain, acknowledged by the state, that they cannot influence via voting. Government policy may impact upon their housing situation, their children’s education, and any dependents they may have, yet the message being sent is that they are no longer entitled to any influence. If a central aim of prison policy is to rehabilitate, it seems tenuous to me that the state can pick and choose how it influences the lives of prisoners without any reciprocal accountability. 

There is of course the counter-argument that the state forecasts the consequences of committing crimes. The logic being that even if you view the ban on voting rights as somewhat draconian, its harshness is offset by the fact that the state does not attempt to hide the rights and liberties one relinquishes as punishment for committing crimes. It is this kind of approach that allows politicians to defend the ban with such zeal. After all, they’re only criminals, they should have known better. The demonization of crime and criminals does much to distract from the realities of how the ban operates in practice. The Fixed-term Parliaments Act 2011 requires that at minimum a general election must be held every 5 years. We expect the next general election to be held on 7th May 2015. The ban in its present form ignores the electoral lottery this generates. If we can agree that in general the sentence given for a criminal offence equates to a measure of its severity, we are left in a situation in which a short custodial sentence may deprive one prisoner of voting in a given election whereas a four year sentence given to another, with the benefit of fortuitous timing, may not deprive them at all. Whether you were sentenced for a crime in April 2011 or are to be sentenced for a crime in April 2015 could be determinative of whether or not you forfeit your right to vote.

Admittedly, one presumes that if prisoners had the right to vote, many of them would decline to use it and ultimately they would make little difference to the overall outcome of general elections. That alone cannot be an acceptable justification for the ban’s existence. The words of Lady Hale in Chester are worth repeating:

Of course, in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story. Democracy is about more than respecting the views of the majority. It is also about safeguarding the rights of minorities, including unpopular minorities. "Democracy values everyone equally even if the majority does not": Ghaidan v Godin-Mendoza [2004]. It follows that one of the essential roles of the courts in a democracy is to protect those rights.

There is nothing wrong with politicians defending the ban on the grounds that it is a part of the punishment that comes with serious criminal conduct. As I have suggested, that appears to be the only rational basis for its existence. Nevertheless, I would implore the political classes to earnestly look at the hypocrisies such a ban generates, without indulging in the emotive language that surrounds criminal activity. If society is willing to accept the ban despite its tendency to run in direct conflict with the overall aims of the criminal justice system, so be it. At the very least, we should allow the debate to highlight such concerns and not hide them for fear of public recrimination.

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Tagged: Criminal Law, Human Rights, Prisons, Supreme Court

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