Friday, 17 December 2010

Will the government's new policy on prisoner votes be enough to satisfy Strasbourg?

The government has announced its proposals for giving prisoners the vote, as it has been forced to do by a number of (to my mind) perverse decisions by the European Court of Human Rights. Or so it claims. I suspect that a really determined response - a new Act of Parliament setting out in clear terms that voting rights were to be removed from convicts - would have satisfied the detailed terms of the Hirst judgement. Nevertheless, ministers say that they have no alternative but to award votes to prisoners, and no doubt that is how they were advised.

The proposals themselves are twofold. Prisoners sentenced to more than four years imprisonment will continue automatically to lose their voting rights. I must say I have strong doubts about whether the ECHR will find this acceptable. A ban on long-term inmates voting is just as arbitrary as one on all inmates (or indeed a ban on older children, resident aliens or members of the House of Lords). Indeed, in the Austrian case of Frodl - which is directly relevant - the Court could not have been plainer:


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.


The second measure announced today - which would seem to answer this very point - was that judges will have a discretion to impose a voting ban on any convict serving a sentence of less than four years. Superficially this looks rather clever. It will, though, inevitably lead to further anomalies. What guidance will judges have on the appropriateness of this additional penalty, and what grounds will there be to appeal against it? What is to stop some judges imposing a vote-ban on almost every prisoner who comes before them, and others never imposing it at all?

Unless there are very strict guidelines, under these new rules two prisoners, sentenced to the same jail term for very similar offences, may find themselves on opposite sides of the franchise divide. On the other hand, if the guidelines are restrictive enough to frustrate the exercise of judicial discretion - in other words, if the voting ban comes to be imposed semi-automatically on certain categories of offender - then we are back with the arbitrariness that the ECHR finds so objectionable.

Whichever way it works out, I don't doubt that some excluded prisoner will be taking legal advice ere long, and a new case will end up in Strasbourg.