Round up of domestic case law

R (Paul Flinders) v Director of High Security & Ors [2011] EWHC 1630 (Admin) 30 June 2011

On 19 May 2003 the Claimant was sentenced to life imprisonment for manslaughter after the Prosecution accepted a plea to manslaughter on the basis of diminished responsibility. His minimum term expired in 2007. Mr. Flinders had remained a category A prisoner throughout his imprisonment.

Mr. Flinders applied for judicial review of  (i) the Director of High Security’s decision to maintain his Cat A  status, on the basis that he had erred in law in failing to hold an oral hearing to determine his re-categorisation; (ii) the SSJ’s unlawful failure to both provide the Parole Board with relevant and current material and to update reports which would have enabled it to conduct their hearing and (iii) the Parole Board’s delay in convening hearings from November 2007 to December 2009 which he argued constituted a breach of his Article 5(4) rights such that he was entitled to damages.

The application was granted in part. The decision not to re-categorise was quashed.  Wyn-Williams J held that the Director of High Security did err in law in failing to hold an oral hearing to determine Mr. Flinders re-categorisation on the basis that it could not be said that the failure to hold the hearing would have made no difference to the decision. While the question as to whether an oral hearing is required is fact specific, in this case there was a reasonable prospect that information would have come to light during the hearing which would have convinced the Director to re-categorise. The factors considered relevant in this regard appeared to be that (i) he had remained at Cat A for a very lengthy period (ii) he had served more than 3 years over his tariff (iii) his mental illness was controlled (iv) he was an exemplary prisoner (v) there was psychological evidence as to reduction in risk.  However, Wyn-Williams J rejected the argument that the SSJ had unlawfully failed to provide the Board with relevant material, noting that the Board itself made no complaint about the material nor did they request additional updated material and went on to say [para 93]

In any event, care should be taken when interpreting a word such as “current” in the context of the Parole Rules. In my judgment, the word should not be given an inflexible meaning. It does not mean, for example, that there must necessarily be a very close connection in time between the compilation of the reports required by paragraph 3 and the date of the oral hearing. A report can be a current report within the paragraph even if made some time before the hearing provided it still provides a proper and reasonable appraisal of the prisoner’s risk factors, reduction in risk and performance and behaviour in prison as at the time of the hearing.

In relation to the third limb of the JR, the Board conceded that the delay amounted to a breach of Article 5(4) but submitted that no relief should be granted. Wyn Williams J refused to grant damages finding that the Claimant could not establish that an earlier oral hearing would have led to his release and that there was no cogent evidence that suffered distress and frustration on account of the delay which was sufficient to reach a level of intensity so as to justify an award of damages.

 R (Jorgenson) v Secretary of State for Justice [2011] EWHC 977 (Admin) 15 April 2011

Secretary of State required to apply a two-stage test when considering whether he should recall a prisoner on licence.

Mr Jorgenson had been sentenced to eight years imprisonment for possession of an imitation firearm, kidnapping and false imprisonment. The court had found his acts to be closely related to his association with drugs and drug dealing. As a result, he had a condition not to use drugs attached to his release on licence. Mr Jorgenson was recalled for breaching his drug condition on the basis that any substance misuse by him would indicate he might be re-engaging in associated criminal activities. His explanation for the breach was that he had smoked some cannabis as he was emotional, having visited his mother’s grave. Otherwise, he had complied with all his other licence conditions. Mr Jorgenson argued that the decision to recall was disproportionate and there was a failure to consider alternatives to recall and his explanation for the breach.

The Court held that where the Secretary of State reasonably concludes that there has been a breach of a licence; s/he must then go on to separately consider the appropriate method of dealing with the breach. In doing so, s/he must take into account: (i) intention so far as the breach is concerned; and (ii) the fact that a recall impinges on the right to liberty, and therefore, any decision to do so must be proportionate. Since on the facts it was not in dispute that: (i) Mr Jorgenson committed the breach; and (ii) he did so deliberately the SSJ was entitled not to adopt an alternative to recall, particularly when taking into account Mr Jorgenson’s previous convictions.

R (Hindawi) v Secretary Of State for Justice [2011] EWHC 830 (QB) 1 April 2011

When putting evidence before the Secretary of State in relation to the proposed release of a prisoner, the Secretary of State must be furnished with all the relevant evidence both in favour and against release.

In 1986 Mr Hindawi had been sentenced to 45 years imprisonment for attempting to place a bomb on a plane. In 2009 the Parole Board recommended his release but this was rejected by the SSJ. It was found by the Court that the evidence presented to the SSJ was one-sided and did not contain evidence in support of the Board’s finding that Mr Hindawi should be released. The papers had been prepared by an official who had unsuccessfully opposed Mr Hindawi’s release before the Parole Board. In the circumstances, the procedure was unfair and the decision flawed and the decision not to release was quashed. The Court sent the case back to the SSJ for reconsideration.

R (Chester) v Parole Board [2011] EWHC 800 31 March 2011

There exists a rare category of case where, although there is no realistic prospect of success on the papers, it may be helpful to hold an oral hearing to determine an application for release or transfer to open conditions.

Mr Chester had been sentenced to life imprisonment for the murder of his 7 year old niece. He had spent 33 years in prison to-date. During his imprisonment there had been a number of reviews and on seventh review in May 2010, the Parole Board considered him unsuitable for release or transfer to open conditions. Mr Chester applied for an oral hearing to challenge the Board’s decision but it was refused.

The Court held that in rare cases, fairness might require an oral hearing even where there is no realistic prospect of success or facts in issue which might affect the outcome. In determining fairness the Court would do so in the context of circumstances identified and evaluated by the Parole Board. In this case it was relevant that Mr Chester had been detained for 33 years and he was at risk of being in prison for the rest of his life without ever having an oral hearing to determine his level of risk.

As a result of Mr Chester’s unwillingness to co-operate and/or his apathy with the training and educational courses, a deadlock had been reached as between himself and the Board and it was possible that an oral hearing would go some way to resolving this. Further, it was found that an oral hearing would have the added benefit of allowing the Board to assess the risk of harm in light of Mr Chester’s oral evidence and any other evidence which he might be able to rely on.

R (Andersson) v Parole Board [2011] EWHC 1049 (Admin) 31 March 2011

The Parole Board has a general power to adjourn making a decision on whether it should set a licence release date or refuse release altogether where references are made by prisoners serving determinate sentences.

Mr Andersson sought a declaration that the Parole Board could adjourn references under ss.256 and 256A Criminal Justice Act 2003 (recalled prisoners serving determinate sentences). The Court held that looking at the statutory framework it must have been Parliament’s intention that the Board would be able to adjourn matters. On a natural reading of the sections, a general power to adjourn was not excluded. Further, it was found that to allow the Board a general power to adjourn was in line in with principles of natural justice: it was obvious that the Board should be sufficiently informed if it was to make a properly informed decision.

R v Zejmowicz & Ruskinski [2011] EWCA Crim 1173 11 May 2011

The presence of a prison officer on a jury does not make a trial automatically unfair, even where the prison officer is from the prison where the defendant was being detained.

Mr Zejmowicz and Ruskinski were jointly convicted of murder after trial. At trial one of their jurors was a prison officer who worked at the prison where they were being detained before and during the trial. They argued that this fact made the trial unfair. The Court of Appeal held that the test for whether a jury was independent and impartial was an objective one. Although on the facts it was unfortunate that the fact of the juror’s employment was not picked up by the jury forms; there was no real possibility of bias in this case for the following reasons: (i) the juror had no recollection of ever coming across Mr Zejmowicz or Mr Ruskinski; (ii) the time spent by the men on the juror’s wing at the prison was short; and (ii) there had been no recording of any misbehaviour by them that would have brought them to the juror’s attention.

R (Young) v HMP Highdown & Secretary of State for Justice [2011] EWHC 867 (Admin) 6 April 2011

The unavailability of Home Detention Curfew for those convicted of possessing offensive weapons is not a breach of Article 14 ECHR.

Mr Young was convicted of robbery and possession of a bladed article. He received a 2 year sentence in light of substantial mitigation. In prison Mr Young had an exemplary record of behaviour. He applied for Home Detention Curfew (HDC) but his application was refused because PSI 31/2003 provided that those convicted of possession of offensive weapons were unsuitable for HDC. Mr Young argued that the decision was in breach of Articles 8 and 14 ECHR.

The Court found that Mr Young’s case of discrimination under Article 14 was unsustainable because it was highly unlikely that any significant comparator group existed. The principal aim of the policy in PS1 31/2003 was to maintain public confidence in the Home Detention Curfew Scheme. It was legitimate for the Secretary of State to take this into account in setting policies for the release of prisoners. In this case public confidence would suffer if those convicted of crimes were released early. Article 14 did not protect against all differences in treatment between individual or groups and the scheme fell far short of discriminating unlawfully. Further, the argument under Article 8 also failed because Mr Young had been lawfully sentenced to imprisonment and he had yet to reach the point where he was entitled to statutory release.

R (Francis) v Secretary Of State for Justice and the Secretary of State for the Home Department [2011] EWHC 1271 (Admin) 20 May 2011

The paragraph describing the service of an IS 91 as a statutory bar to release on Home Detention Curfew contained in paragraph 11 of PSO 4630 is wrong in law.

Miss Francis, a Jamaican citizen, was liable to deportation following a 2 year sentence for drugs offences. She argued that her eligibility for early release under the HDC scheme had not been properly considered because of an error in PSO 4630 which meant that the prison had proceeded under the mistaken belief that where a form IS 91 (a detention authority form) had been served on a foreign prisoner, that made the prisoner statutorily ineligible for Home Detention Curfew.

The Court held that although the prison had initially misinterpreted paragraph 11 of PSO 4630, by 5 October 2009 they had corrected their mistake, and from then on the reason for refusal was based on the service of an IS 91 form from the Home Office. Although service of an IS 91 was not a statutory bar for refusing release under the HDC scheme scheme, it was a proper reason for refusal. Therefore, the initial error of the prison authorities was immaterial.

In obiter comments, the Court held that a person serving a determinate sentence was required to serve the full period of their sentence, subject to any exercise of discretion by the SSJ to allow for earlier release. If the SSJ could be shown to have breached the exercise of his or her discretion to allow for early release, any further period of detention would not give rise to damages where the full prison term was yet to be completed. On the facts, there had been no false imprisonment or breach of Article 5 ECHR.

R (MA) v National Probation Service & Secretary of State for Justice [2011] EWHC 1332 (Admin) 27 May 2011

Judicial review is an Article 6 ECHR compliant mechanism for challenging licence conditions.

Mr Ahmed was sentenced to 9 years imprisonment for kidnapping, falsely imprisoning and raping his estranged wife. Although an indeterminate sentence for public protection was considered by the judge following his conviction, it was deemed inappropriate given Mr Ahmed’s previous good character. By the time of his release at the half way stage his wife had initiated divorce proceedings which Mr Ahmed was contesting. That detail, as well as the fact that he had never shown any remorse and he was considered to bear a significant degree of animosity towards her, were significant factors in assessing the risk of serious harm when an OASys report was completed shortly after his release on licence. As a result, in addition to the standard conditions, his licence conditions included Mr Ahmed staying away from areas where his wife or her family lived; not contacting her or her family and notifying his supervisor of “any developing personal relationships with women”. He also had to remain at a probation hostel and report to staff every two hours from 8am to 10pm in addition to a night time curfew from 10pm to 8am.

Mr Ahmed argued that the conditions imposed on his release on licence were so onerous as to amount to a deprivation of liberty under Article 5 ECHR and a disproportionate interference with his private life under Article 8. Finally, it was suggested that the unavailability of a dedicated mechanism for challenging licence conditions before the Parole Board infringed Article 6 ECHR. The Court held that the conditions fell some way short of amounting to a breach of Article 5 (both in terms of length of time and the practical effect of the conditions) in light of theUKand ECtHR jurisprudence. It held that if Mr Ahmed had been more forthcoming with the Probation Service, his reporting conditions may have been relaxed earlier than they were. Mr Ahmed was not prevented from working in the family business so as to breach Article 8: at most he was inconvenienced. The availability of judicial review meant that Article 6 ECHR did not require a dedicated mechanism. This was not a case where the reviewing court needed to conduct a fact-finding exercise, it was clear that some conditions needed to be imposed on Mr Ahmed and a challenge on any conditions imposed by judicial review was Article 6 compliant.

Hassan v Secretary of State for Justice [2011] EWHC 1359 (Admin) 27 May 201

Where segregation of a prisoner is justified, in deciding whether the period of segregation goes beyond that which is necessary, the Court will apply Wednesbury principles.

Mr Hassan, who suffered from moderate PTSD following the murder of his family inIraq, had been imprisoned for attempted murder. Whilst detained there had been a number of adjudications concerning threats and assaults on prison staff. In February 2010 it was alleged that he had assaulted a fellow prisoner and he was therefore segregated for “good order or discipline”. Mr Hassan argued that his segregation in prison was unlawful on the basis that it was unjustified under the Prison Rules and PSO 1700 (Segregation) because procedural safeguards to protect mental health contained within PSO 1700 had not been observed and these failures went to lawfulness. Mr Hassan suggested that the omissions gave rise to breaches of Articles 3 and 8. 

The suggested omissions were that in conducting the segregation health screen, the nurses noted in the relevant forms that there were no clinical reasons for why it might not be advisable to enforce segregation. Mr Hassan had attempted suicide twice before his imprisonment and had self-harmed prior to and during his imprisonment. Following a review, the Board authorised his continued segregation for the same reasons as the initial confinement. It was held by the Court that given his violent and disruptive behaviour in prison there was no doubt that the segregation was justified. The Prison Rules and PSO 1700 had been followed and applied.  The only issue in this case was whether segregation was for the shortest period possible given the evidence contained within the PSO of the effect of segregation on mental health.

The Court took the view that in deciding whether the period of segregation went beyond that which was necessary, the court would do so on Wednesbury principles. Considering all the evidence of his disruptive behaviour in segregation, assaults on staff and the incident in February 2010, it was in the interest of all prisoners, the safety of staff and good order and discipline that Mr Hassan continued to be segregated. The duration of the period of compliance and sufficient change in behaviour necessary by the prisoner was a matter of judgment for the Governor and the Board. On the facts before the Court there was no evidence at any time during and after, that the segregation was having any effect whatsoever on Mr Hassan’s mental health. There was nothing to suggest that the regime applied in segregation breached Articles 3 & 8 ECHR. He showered and exercised regularly, was fed and clothed and he could purchase goods weekly and take out books from the library. On the facts no procedural safeguards had been breached.

R (Bashir) v The Independent Adjudicator & Secretary of State for Justice [2011] EWHC 1108 (Admin) 3 May 2011

A prisoner failing to provide a sample in reliance on his Article 9 ECHR rights will not be guilty of a disciplinary offence if in all the circumstances the request was disproportionate.

Mr Bashir was serving a term of 15 years imprisonment. In January 2010 he was required to provide a urine sample for drugs testing under PSO 3601 (Mandatory Drug Testing). The test had been authorised on the basis of a reasonable suspicion that Mr Bashir had taken controlled substances. Mr Bashir attempted to but failed to provide a sufficiently large sample of urine at 10.05am, 11.05am, 12.05pm and 13.05pm. He was offered water after each attempt but he refused on the basis he was a devout Muslim who was on a fast prior to a Court of Appeal appearance and as a result, he was unable to provide a sufficiently large urine sample. He was told that if he did not provide the required sample he would commit an offence under the Prison Rules. Following the failures he was found guilty and penalty of 14 days additional detention was imposed on him. Mr Bashir argued that the finding of guilt breached Article 9 ECHR.

The Court found that on the evidence before the adjudicator, Mr Bashir had attended the prison’s mandatory drug testing suite as required; had tried to provide a sample on 3 occasions; had informed the prison officer of his fasting when summoned to provide a sample; he was a devout Muslim and there were many individual voluntary fasts outside of Ramadan. Further Mr Bashir’s subjective belief that he could not break a fast once it had started had not been challenged. To be convicted of the offence the Court held that the Adjudicator had to be satisfied to the criminal standard that Mr Bashir intended to commit the offence and also that the order he disobeyed was lawful. It was open to the Adjudicator to infer intent to the necessary standard from a refusal to drink water when it is offered to enable a sample to be taken. However, it was the requirement of lawfulness that allowed the Court to distinguish between cases where a prisoner is on hunger strike for reasons outside Article 9 and those within.

The right to manifest one’s religion was a qualified right and therefore the key issue was whether if there had been an interference on the facts, was it necessary and proportionate? The evidence was that Mr Bashir’s fast would have ended at 4.30pm and there was no evidence that a sample taken then would have been materially of less forensic value than one provided at the last attempt (13.05pm), or that to provide for this later opportunity would have been disproportionately expensive or inconvenient. Accordingly, the interference was disproportionate and the adjudication was to be quashed. The Court held that none of the findings in this particular case were intended to indicate that the Mandatory Drug Testing procedure was, of itself, unlawful in any way.

Hull v Regina [2011] EWCA Crim 1261 19 May 2011

A prisoner transferred to the UK under the Convention on Transfer of Sentenced Persons 1983 may appeal against the term of the imprisonment but not the sentence.

Mr Hull was a mandatory life prisoner convicted of murder in theRepublic of Ireland. He was later transferred to the United Kingdom to serve the remainder of his sentence. In the Republic of Ireland no minimum term to be served is set by the sentencing court where the term is life imprisonment. Mr Hull sought to challenge the minimum term of 18 years set by the High Court in September 2010 following his transfer. The term was based on what Mr Hull would have been sentenced to had he been convicted in theUKat the time of the offence. The issue for the Court was first, whether it had jurisdiction to hear appeals by transferred life prisoners against the setting of a minimum term by the High Court and secondly, the principles by which they could do so.

The Court held that although the UK was a signatory to the Convention on the Transfer of Sentenced Persons 1983, it had not signed up to Article 9(1)(b) of the Convention which provided that on a transfer, an administering State should convert the sentence through a judicial or administrative procedure into a sanction prescribed by the law of the administering State for the same offence. However, under s.3(1)(c) Repatriation of Prisoners Act 1984 it was provided that the detention of a prisoner in the UK would be in accordance with the provisions contained in the warrant of transfer. In this particular case, the warrant provision was that the prisoner was to serve a term of life imprisonment. Since the provision could have been made by the criminal jurisdiction of a court in England and Wales, the effect was that on a transfer, a life prisoner would be treated as if the term had in fact been imposed inEngland and Wales except that there would no appeal against sentence.

Had this particular term been made in England and Wales, a minimum term would have been set by the High Court from which there would have been a right of appeal under s.9 of the Criminal Appeal Act 1968 and the Court of Appeal could have exercised its power to substitute a minimum term under section 11. Accordingly, the Court had the power to quash any order made on a reference under s.273 of the 2003 Act (life prisoner transferred to England and Wales) and substitute its own order. On the basis that approach was correct, that meant that schedule 22 of the transitional provisions would also apply (minimum term to reflect the practice of the Secretary of State at the time the offence was committed). The High Court judge in this case had been unaware of the application of Articles 9(1)(a) and 10 of the Convention. The effect of those Articles was that the administering State could adapt the sanction to the nearest equivalent under its own laws as long as this did not result in a more severe punishment or longer detention than under the laws of the transferring state. Thus Article 9(1)(a) involved adapting a sentence whilst Article 9(1)(b), which did not apply, was focused on converting a sentence. The High Court judge had converted Mr Hull’s sentence as opposed to adapt it. However, because the Irish Ministry for Justice could not provide any detailed information on its sentencing principles, the judge was entitled to rely on s.269 CJA 2003 (determination of minimum sentence in relation to a mandatory life sentence) in arriving at a minimum term of 18 years. As a result, the appeal was dismissed.

R (PA) v Governor of Lewes Prison [2011] EWHC 704, 28 February 2011

Where a prisoner is presumed unsuitable for HDC and relies on exceptional circumstances to qualify, in deciding whether a prisoner is “infirm by nature of disability” under the guidance in PSI 31/2003, the decision-maker must take into account the fact exceptional circumstances will be rare and are likely to stand out.

The claimant had been sentenced to a term of 3 years imprisonment for inflicting grievous bodily harm and cruelty to his child. As a result of this, he was deemed unsuitable for early release under HDC. The claimant, who suffered from social phobia, had no previous convictions and had been assessed as a low risk of re-offending. He argued his condition made him infirm by nature of disability under the guidance contained in PSI 31/2003.

The Court held that ‘infirm’ was not a medical term and in determining the meaning of “infirm by nature of disability”, the decision-maker had to take account of the underlying context; the fact that the prisoner had committed an offence presumed unsuitable for release under HDC; as a result, he needed to prove exceptional circumstances; exceptional circumstances would be rare if public confidence was to be maintained; and finally, exceptional cases were likely to be stand out.

Although it was accepted that the claimant suffered from a mental illness which had a disabling effect on his ability to interact with others, this did not necessarily make him infirm. This was not a case where the decision-maker was bound to arrive at the conclusion that the claimant was infirm. Accordingly, the decision of the Governor to refuse early release on HDC was lawful.

Scotland, Northern Ireland and Eire

Sage v Minister for Justice & Ors, High Court, [2011] IEHC 84  1 March 2011

The Plaintiff (P) was originally detained in Mountjoy prison where he raised concerns with the prison authorities about his safety (he feared retribution from other inmates due to the nature of his conviction). The prison authorities at Mountjoy placed him in protective custody on the first day and advised him that the safest place for him to be would be Midland Prison. Later that evening, contrary to his expectations he was not transferred to Midland Prison but was taken to Fort Mitchell Prison. On his second day there, while in the courtyard, he was severely beaten by other inmates.

P argued that the prison had failed in its duty of care to provide security to prisoners from other inmates. It was argued there was inadequate security in the prison yard at the time of the assault and/or that the system of searching prisoners was defective, particularly given the nature of the weapon involved. Reliance was placed on Casey v. Governor of Midlands Prison & Ors [2009] I.E.H.C. 466, (Unreported, High Court, Irvine J., 27th October, 2009) (“Casey”) in which the duty of care owed by prison authorities to those in their custody was set out: (i) Prison authorities are required to take all reasonable steps and reasonable care not to expose prisoners to a risk of damage or injury, but the law does not expect the authorities to guarantee that prisoners do not suffer injury during the course of their imprisonment (Muldoon v. Ireland [1988] I.L.R.M. 367)  (ii) The duty of care owed by prison authorities to its prisoners must be tested in the context of the balance to be struck between the need to preserve security and safety on the one hand and their obligation to recognise the constitutional rights of prisoners and their dignity as human beings on the other hand (Bates v. Minister for Justice & Ors [1998] 2 I.R. 81)(iii) In determining what is an appropriate standard of care, regard should be had to the hardship that any proposed system might impose on prisoners and whether any such system would place an excessive burden upon the prison authorities (ibid) (iv) Cases of assault upon prisoners whilst in custody in general are likely to be decided upon by reference to what should have been anticipated by their custodians. Reliance was also placed on Creighton v.Irelandand Attorney General [2010] I.E.S.C. 50, (Unreported, Supreme Court, 27th October, 2010) (“Creighton”) which states that “prisons may, as an inevitable consequence of the character of persons detained, be dangerous places. Prisoners are entitled to expect that authorities would take reasonable care to protect them from attack by fellow prisoners”.

In Sage, Irvine J found there was no breach of the duty of care, being satisfied that P made known to the prison authorities his concerns at Mountjoy Prison and that he wanted to be transferred to Midlands Prison, but that there was no obligation on the prison service to transfer P to what they considered the safest prison. It was found that P had not sufficiently warned the prison authorities at Fort Mitchell prison of his concerns or that he specifically needed to be kept in protective custody there. It was found, as a matter of fact, that the necessary number of supervisory staff was present when P was attacked. It was held that the prison authorities ‘cannot be expected to be the insurers of the safety of their prisoners’. In relation to the use of a weapon, Irvine J rejected P’s submission that the nature of the weapon and the circumstances of the assault could allow, in the absence of expert evidence, a conclusion that the plaintiff’s injuries were due to a defective system of security in Fort Mitchell. Irvine J distinguished the case of Creighton in that the weapon was not one that had been brought in from outside of the prison.

In the Petition of Robert Greens & Ors. Court of Session (Outer House) [2011] CSOH 79, 12 May 2011

The Petitioners were three prisoners (X, Y and Z) ofPeterhead Prison,Scotland, who lodged a petition for judicial review against the prison governor and Scottish Prison Service (S) based on the conditions within the prison. The complaint related to the toilet and sanitary conditions within the prison facility. It was argued that the conditions subjected the petitioners to inhuman or degrading treatment and were an unjustified interference with their right to respect for their private lives, contrary to the ECHR art. 3 and art. 8 respectively.

The Petitioners submitted inter alia that (1) requiring a prisoner to use any receptacle other than a screened and flushing toilet itself constituted a breach of art.3 (2) the conditions of detention as a whole constituted such a breach, including the practice of “bombing” by which prisoners defecated into newspapers or other items, or urinated into jars, before throwing the end product; (3) the conditions of their detention caused them to suffer feelings of low self esteem, inferiority, humiliation and mental anguish, which exposed them to distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in a sentence of imprisonment. Reliance was placed on the cases of Malechkov v Bulgaria (Application No.57830/00) and Radkov v Bulgaria (Application No.18382/05) which established that single cell slopping was sufficient to constitute a breach of art.3; further, regard had to be had to Napier v Scottish Ministers 2005 1 S.C. 307, in which the court recognised a breach of a prisoner’s art.3 rights with reference to slopping out. The Petitioners sought (a) a declaration that the conditions were a breach of articles 3 and 8 of the ECHR and (b) damages as just satisfaction.

Lady Dorrian held that access to a screened and flushing lavatory was not a basic human right, and to require the use by prisoners of a chemical toilet in a single cell did not involve an interference with the respect for a prisoner’s private life under Article 8 ECHR. However, where individuals were forced to queue with their receptacles and to empty them in the presence of others, that constituted an infringement of Article 8. The court was not satisfied that there had been a violation of Article 3 and that requiring a prisoner to use any receptacle other than a screened and flushing toilet did not of itself amount to inhuman or degrading treatment. The court noted that difficulties might arise in differentiating those conditions which might fail under Article 3 yet succeed under Article 8, but a lower threshold applied in relation to the latter.

Reilly, Re Judicial Review [2011], Court Of Appeal (Northern Ireland), NICA 6, 6 April 2011

The Respondent (R), born inNorthern Ireland, was sentenced to life imprisonment in 2003 for robbery, attempted robbery and possession of an imitation firearm. He received a tariff of 6 years and 8 months due to expire on 20th September 2009. He was originally detained inEnglandbut on 12 December he was moved to HMP Maghaberry,Northern Ireland. Prior to removal in July 2006, the Parole Board conducted a review to determine if R was suitable for a move to open prison conditions. The decision was that R was not suitable. The next review was scheduled for September 2009.

In 2009, the Lifer Management Unit at HMP Maghaberry sent a dossier to the Parole Baord indicating that R wished to have an oral hearing before the Parole Board. In June 2009 the Parole Board wrote to R and decided, without an oral hearing, not to recommend his transfer to open conditions. Factors taken into account included the nature of R’s offence, his poor disciplinary record and his inability to remain drug free. The Parole Board concluded that R had still a significant amount of programmes to complete which would address his offending behaviour. R appealed against the refusal to grant him an oral hearing.  He claimed that he should have been afforded the opportunity to provide some explanation as to why his adjudication record was apt to create a false impression, an explanation as to why the record of drug testing might be misleading and a general submission that an oral hearing was necessary in order to achieve fairness.  The Parole Board refused the appeal on the grounds that R had not completed work on tackling his offending behaviour. The respondent brought a judicial review of the decision.  In April 2010 Mr Justice Treacy quashed the decision of the Parole Board on the ground that it violated Article 5(4) ECHR and Common Law.  The Parole Board and the Secretary of State for Justice appealed this decision.

It was submitted that prisoners serving indeterminate sentences were entitled as of right to an oral hearing before the Parole Board, reliance placed on Waite v UK (2003) 36 EHRR 54. Reliance was also placed on an affidavit sworn on 9 December 2009 by Mr O’ Prey of the Parole Board declaring a policy that a prisoner who has been given a life sentence will not be released or recommended for open conditions without an oral hearing. In the same affidavit it was asserted that an oral hearing will normally be granted in two circumstances (a) where there is a realistic prospect of release to open conditions (b) where live evidence is required. It was argued that R had never been put on notice of the ‘no realistic prospect of success’ test or that R’s failure to complete the behaviour programmes would be a crucial factor in determining his release.

Lord Justice Coghlin delivered the judgment of the Court allowing the appeal by the Parole Board. It was held that the question is whether the circumstances of a particular case require the Parole Board, as a matter of procedural fairness, to hold an oral hearing in the course of determining whether the continued detention of a prisoner is necessary for the protection of the public.  Lord Justice Coghlin said: 
 “Essentially, that is a judgment about risk involving a careful and complex balance between the right of the prisoner to his or her liberty and the right of the public to an acceptable degree of protection.   In exercising that judgment the Parole Board must have regard to the individual circumstances of the case. The Court of Appeal found that, in this case, the Parole Board’s decision not to hold an oral hearing was fair given the failure of the respondent to complete the requisite offending behaviour programmes.”

European Court of Human Rights Cases

Vasyukov v Russia (Application no. 2974/05, 5 April 2011) 

Failure to diagnose early and treat tuberculosis adequately is violation of Article 3

 As in the case of Gladkiy v Russia, reported in the last bulletin, the Court continues to find violations of Article 3 where there has been inadequate medical treatment for detainees suffering from tuberculosis in Russian prisons. In this case, a failure to diagnose the applicant’s tuberculosis at an early stage and to provide adequate treatment for his illness was held to violate the Article.

Rotaru v Moldova (Application no. 51216/06, 15 February 2011)

Conditions of detention violated the applicant’s rights under Article 3. 

 In Rotaru, the applicant had made several complaints to the Moldovan Ministry of Justice, the Prosecutor General’s Office and Parliament that the conditions of his detention were inhumane. In particular he complained that prisoners were not provided with enough beds or any bed linen, did not have enough food, suffered from overcrowding, that the cells were damp and insect-infested, and that medical care was inadequate. The applicant was in turn diagnosed with tuberculosis, piodermia, and scabies as a result of the conditions of his detention. Although the various governmental bodies involved promised to improve prison conditions, the Court held that detention conditions had remained substandard and the cumulative effect of those conditions over the duration of the detention must be taken into account. Although merely contracting tuberculosis was not on its own an indication that Article 3 had been violated, it added weight to the applicant’s claim. The Court also found the government’s admissions that prison conditions required improvement and the length of time that the applicant was detained (more than seven years) to be persuasive, and as such the conditions of detention violated Article 3. Further, a lack of effective remedies available to the applicant constituted an attendant violation of Article 13.

Iliev and Others v Bulgaria (Applications nos. 4473/02 and 34138/04, 10 February 2011)

Inhumane conditions of detention were held to be a violation of Article 3. Monitoring by the prison administration of correspondence between the first applicant and his lawyers (the second and third applicants) violated Article 8.

 The first applicant, Mr. Iliev, a detainee, was held in Varna Prison in a four by seven metre cell with seven other detainees. The cell was dirty, and badly lit. Sanitary facilities outside of the cell could only be accessed during the day and comprised two sinks and two cubicles for over eighty prisoners. The only available facility in the cell was a bucket that detainees had to use in the open. Hot water for bathing was provided to detainees at infrequent intervals. When held in custody at court, the applicant was held in similarly poor conditions – cells were small and overcrowded, there was no access to sanitary facilities, and temperatures were either very cold in winter or very hot in summer. The Court found that these conditions violated Article 3.

Additionally, the first applicant alleged that while at Varna Prison the correspondence he exchanged with his lawyers (the second and third applicants) was monitored by prison administration. The Court rejected the government’s explanation that this was done to check that incoming letters were sent by the person whose name appeared on the envelope. The Court was of the view that the prison authorities had not monitored the correspondence because of a ‘concrete suspicion’ that the prison held, but rather on a ‘general hypothetical possibility of abuse’. While prison authorities may open a letter from a lawyer to a prison when they have reasonable cause to believe that ‘it contains an illicit enclosure which the normal means of detection have failed to disclose’, this was not established in this case. Further, violating lawyer-client privilege should only be permitted in exceptional circumstances when there is reasonable cause to believe that the privilege is being abused. As such, the Court held that Article 8 had been violated.

Gladović v Croatia (Application no. 28847/08, 10 May 2011)

Recourse to physical force by prison guards violation of Article 3

 The applicant was a prisoner who suffered from various personality disorders and other psychological difficulties. He claimed that during his detention he had been beaten by six or seven prison guards who had hit him with rubber truncheons all over his body, and as such, his rights under Article 3 had been violated. Prison guards claimed that in an attempt to ‘ensure order and security’ after the applicant had shouted and hit the cell door, they had used force upon the applicant specifically, putting him in an elbow lock and hitting him only twice with a rubber truncheon to subdue him. The prison doctor saw the applicant after the incident and it was noted that he had a large haematoma on his arm. The applicant further claimed that there had been an inadequate investigation of the incident.

The court reiterated that prisoners are especially vulnerable and that authorities are under a duty to protect their well being, so that any recourse to physical force that is not strictly necessary is in principle a violation of Article 3. In the Court’s view, the haematoma on the applicant met the minimum level of severity required for a violation of Article 3. Additionally, the Court held that there had not been a proper investigation of the incident – there had been no forensic report, no attempt to talk to witnesses, and no assessment as to the necessity and severity of the force used against the applicant. Thus the Court held that there had been both substantive and procedural violations of Article 3. 

Raducki v Poland (Application no. 10274/08)

State “structural” problem in length of detention

The accused was arrested on suspicion of murder and attempted murder as part of a criminal gang. He was detained for 5 years, 3 months and 17 days before being convicted. Allegations about his treatment and conditions of detention were dismissed for lack of evidence or non-exhaustion of domestic remedies. The Court found that the detention was in breach of Article 5(3) because the gravity of the charges could not justify long periods of detention and the period in this case was egregiously extenuated. The Court went on to examine the application of Article 46 of the convention, observing that Poland was habitually detaining those accused of involvement in organised crime for very long periods without determining a charge. The Court reiterated “its findings in Kauczor as to the existence of a structural problem and the need for the Polish State to adopt measures to remedy the situation.”

Lesiak v Poland (Application no. 1921/07)

Lengthy pre-trial detention not a breach of Article 5; censored letters a breach of Article 8

The Court held that detention of the applicant for 1 year and 7 months before release on bail without having been tried was not in breach of Article 5(3). The case involved considerable complexity and risks of disruption due to the allegations of criminal gang involvement. The investigation proceeded with due expedition while the applicant was detained and she was released as soon as possible. However, there was a breach of Article 8 because the applicant’s post to the Court appeared to have been censored. This limb of the case was raised by the Court’s own motion as the Court has seen many such apparently censored letters fromPoland. The detainee should enjoy such protection of her private communication as that afforded to convicted people – who are themselves entitled to uncensored communication under domestic law.

Tsarenko v Russia (Application no. 5235/09)

 Conditions of detention a breach of Article 3 and pre trial detention of more than 3 years a breach of Article 5

The applicant was a suspect in a multi-handed multiple murder and GBH investigation. At the beginning of his detention he was a minor. He was first detained in March 2007, a preliminary hearing in the trial was held in May 2009 and in April 2010 he was convicted of various violent crimes, sentenced to imprisonment for a period already served and immediately released. During his lengthy detention he had been held in cells with minimal privacy and in very crowded conditions, with less than 3sqm per detainee. He had complained about both the length and condition of his detention both through judicial routes and extra-judicial routes. His complaints about the length of detention had been refused and those about the conditions led to his being moved only some time after his complaint.

Without finding any deliberate attempt to breach Article 3, the Court found it had been violated because the aggregate discomfort of the conditions were “sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arose in him feelings of anguish and inferiority capable of humiliating and debasing him.”

Article 5(1) was breached because when the City Court extended pre-trial detention it did so on a basis that was opaque in reasoning and capricious; extensions to allow the defendant to study the prosecution papers were not reasoned so to “comply with the requirements of clarity, foreseeability and protection from arbitrariness”. The court stressed that “where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied.” Pre-trial detention of more than three years violated Article 5(3) because the gravity of the offence was not enough to justify such detention without specific evidence of a risk. The Court observed that this Article is often violated, with desultory, formulaic rulings extending detention without reference to substantial evidence of a specific risk.

Article 5(4) was violated because the Supreme Court’s heavy workload was not sufficient grounds to have failed to hear the detainee’s appeals against the extension of his detention. Periods of more than 40 days were too long to examine such appeals. The Court also held that the detainee did not have an effective remedy in respect of his Article 3 complaint about the conditions of his detention. The ineffectiveness of the complaint mechanism and the unavailability of a route to establish State liability had already been determined to be a breach in another Russian case, Benediktov. The Court had also already indicated thatRussia must improve conditions of detention or provide adequate compensation for those so detained.

Comment and Analysis: Disability Discrimination

General Issues

Until October 2010 disability discrimination was prohibited by the Disability Discrimination Act 1995  as amended by  the DDA 2005 (now repealed by the Equality Act 2010 (EA)) – only complaints about treatment after October 2010 will fall under the EA. Under the EA 2010 disability is recognised as one of the nine ‘protected characteristics’. There are four types of disability discrimination under the Act (direct (s13), discrimination arising from disability (s15), indirect (s19), and failure to comply with duty to make adjustments (s21)).

Because the introduction of the EA is relatively recent the majority of cases currently being heard in the courts are still referring to the 1995 Act, specifically sections 19 (discrimination in relation to goods, facilities and services), 21 (duty of providers of service to make adjustments), 21B (discrimination by public authorities), and 49A (general duty of a public authority to have due regard to the need to eliminate unlawful discrimination/ harassment and encourage participation etc)[1].

Some defendants (via the Treasury Solicitor) in prison disability discrimination claims have sought to deny that they are a provider of a service for the purpose of s19 Disability Discrimination Act 1995 (DDA). However, such a “defence” is misconceived. There are very few situations where the prison will not be a service provider in relation to a disabled prisoner claiming discrimination. Any claim relating to adequacy of facilities, access to health care or education or treatment, etc, will fall within s.19 DDA.

In Gichura v SSHD  [2008] EWCA Civ 697 a permanent wheelchair user claimed he was discriminated against under s19 DDA because he was unable to properly access facilities in an immigration detention centre. The district judge had struck out the claim on the basis that the facilities in an immigration detention centre did not amount to a provision of a service for the purposes of s19 of that Act and that some functions were ‘government-like’ such as the administrative handling of a detainee on arrival and therefore did not fall within the Act. However, the Court of Appeal found that the judge was wrong to do so, because the fact that facilities were incidental to detention did not exclude it from the Act and it was a ‘provision of a service’ for the purpose of s.19. Indeed, the prison service’s own PSO 2855 ‘Prisoners with disabilities’ requires that all managers and staff understand and comply with the law as set out in the Disability Discrimination Act 1995 and the Disability Discrimination Act 2005,and reads:

The DDA 1995 applies to service providers (including the Prison Service for example in its provision of offending behaviour, skills and employment, drug treatment programmes etc and requires access (both physical and in the broadest sense) to services to be ensured and for reasonable adjustments to be made).

In any event, even if the act or omission complained of does not amount to provision of a service, the defendant is still likely to be caught under s.21B which relates to the discharge of a public function. In R (Gill) v SSHD [2010] EWHC 364 (Admin) the claimant was effectively excluded from Offender Behaviour Programmes due to his learning difficulties and was thus unable to demonstrate a reduction in risk in order to promote his case for release before the Parole Board. He successfully pleaded both the services and public function provisions- namely that the Secretary of State had breached s21 DDA (failure to make adjustments) and s49(A)1(failure to comply with the General Equality Duty), specifically that the defendant had not complied with, inter alia: (i) Prison Service Order 2855, which stated that it was ‘vital’ that prisoners with disabilities could access any offending programmes as identified in their sentence plan, with adjustments made as necessary; and (ii) Prison Service Instruction 31/2008, which stated that prisoners with disabilities had to be able to follow their sentence plans and satisfy the conditions for parole. The Court found that the claimant was entitled to a declaration that the Secretary of State had breached his duties towards him by failing to take steps to enable him to undertake some type of offending behaviour work.

So, in general, it is prudent to plead both ss19 and 21B (or s29 of the Equality Act 2010) because the defendant will fall under one or both as a provider of services and/or as a public authority.

The key point to emphasise is that the MOJ and prisons are duty bound to consider disability issues.  It is of note that a breach of the general duty on public bodies to eliminate discrimination and promote equality (s49 DDA or s149 EA) may result in detention becoming unlawful. In the case of R (on the application of BE) v Secretary of State for the Home Department  [2011] EWHC 690 (Admin) a disabled man held in immigration detention without adequate facilities for his disability was found to have been unlawfully detained when the escalation of failures in relation to his disability issues, in breach of s49 DDA, tipped the balance to unlawfulness (on Hardial Singh principles).

Mental Health and Learning Disabilities

The most common types of disability affecting prisoners relate to mental health and learning difficulties. In April 2009, Lord Bradley’s independent review of the criminal justice system was commissioned to examine the extent to which offenders with mental health problems or learning disabilities could, in appropriate cases, be diverted from prison to other services and the barriers to such diversion. The report concluded that:

“Evidence suggests that there are now more people with mental health problems in prison than ever before. While public protection remains the priority, there is a growing consensus that prison may not always be the right environment for those with severe mental illness. Custody can exacerbate mental ill health, heighten vulnerability and increase the risk of self-harm and suicide.”

Figures quoted by the Mental Health Foundation [2] show that more than 70% of the prison population has two or more mental health disorders; male prisoners are 14 times more likely to have two or more disorders than men in general, and female prisoners are 35 times more likely than women in general. And, according to the organisation Care Principles [3], government statistics indicate that of the 83,000 prisoners inEngland in 2008, there were more than 19,000 people with an identifiable learning difficulty. However, only an estimated 5,800 prisoners received formal diagnosis of learning disability. They suggest that prison is often a desperately inappropriate environment for vulnerable people with a learning disability and more prisoners require assessment urgently.

It is sometimes difficult to persuade prisons to recognise disability related to mental health and learning or IQ. In the case of R (on the application of PA) v Governor of Lewes Prison [2011] EWHC 704 (Admin) a prisoner convicted of GBH was denied early release on Home Detention Curfew because, according to PSI 31/2006, HDC was only available in exceptional circumstances for his type of offending and, although he suffered from moderate to marked social phobia, he was not recognised as “infirm” for the purposes of the ‘exceptionality’ requirement. A judicial review of that decision found that the term ‘infirm’ was not medical but instead a value judgment and the Governor was entitled to conclude that the prisoner was not infirm.

 This area of law is a growing one and we wait with interest to see if the introduction of the Equality Act 2010 does in fact, as was intended, make it easier to establish discrimination on grounds of disability.

Those provisions under the DDA 1995 are now contained in a similar way under the 2010 Act at sections 29, 20, 29(6) and 149 respectively.

1. http://www.mentalhealth.org.uk/help-information/mental-health-statistics/prisons
2. http://www.careprinciples.com/news-and-media/care-principles-in-the-press/prison-is-not-always-an-appropriate-environment-for-those-with-learning-disabilities

A Comparative View: Prisoners Voting Rights, Part 2 – An European Perspective

The comparative law section in the last bulletin looked at prisoner voting rights in the United States, Canada and Australia. This article focuses the rights of prisoners to vote in other European countries and the impact that this could have on any Government proposal to reform prisoner voting laws in theUnited Kingdom.

The UK is one of only a limited number of Member States of the Council of Europe where prisoners are unable to vote.  Armenia,[4] Bulgaria, Estonia, Georgia, Hungary, Liechtenstein[5] and Russia[6] all have an outright ban on prisoners voting.

In Hirst (No.2) v UK,[7] the Grand Chamber recognised that State Parties to the Convention may want to legitimately prevent some prisoners from voting. A wide margin of appreciation should be afforded to a state when deciding on which prisoners should have the right to vote. A blanket ban on prisoners’ right to vote however exceeded any margin of appreciation afforded to Member States and amounted to a violation of Article 3 Protocol 1.[8]

The Grand Chamber declined to give any specific guidance on what how the United Kingdom should change the law in order to make it compatible with Article 3 of Protocol 1.[9] However, it gave some indication of what elements of the law should be changed. It stated that the fact that the ban applied automatically, irrespective of the length of sentence, the nature or gravity of the offence committed and the individual circumstances of the offender, rendered the ban incompatible with the Convention.[10] By holding that the prisoner’s individual circumstances should be taken into account, the Grand Chamber indicated that a judge or court should decide whether the right to vote should be taken from an individual prisoner. 

On 20 December 2010, Mark Harper MP, Minister for Political and Constitutional Reform, announced that prisoners serving custodial sentences of less than four years would be given the right to vote.[11] This proposal has proved to be extremely controversial and has sparked considerable public debate. It is worth assessing the systems in place in other Member States of the Council of Europe to see whether this would be a viable option.

Of the 47 Member States of the Council of Europe, at least 14 countries allow prisoners to vote without any restrictions including: Albania, Croatia, Denmark, Finland, Macedonia, Iceland, Ireland, Lithuania, Moldova, Serbia, Montenegro, Serbia, Slovenia, Spain, Swedenand Switzerland.[12]

In some states the restriction is only imposed on prisoners who are detained for the most serious of crimes. In Bosnia and Herzegovina, for example, only those prisoners accused serious violations of international law or indicted before the International Criminal Tribunal for the Former Yugoslavia lose the right to vote.[13] In Greece, restrictions apply to prisoners who are sentenced to over ten years imprisonment and the right to vote is permanently withdrawn from those who have been sentenced to life imprisonment.[14]

Luxembourg leaves the decision on disenfranchisement to the sentencing court.[15] Similarly, the courts in Norway have the power to revoke the right to vote in cases concerning treason or nationality security. However, this power is rarely used and in recent times has only been invoked in cases relating to the Second World War. [16]

In the Czech Republicand Latvia, prisoners are able to vote in national elections but are not allowed to vote in municipal and regional elections.[17]

Since the Hirst judgment in October 2005, a number of countries have amended their laws on prisoner voting rights. Ireland had a blanket ban on prisoners voting prior the enactment of the Electoral Amendment Act 2006. The new law means that prisoners are able request a postal vote in the constituency where they would have ordinarily lived.[18] Cyprus had a similar ban to Ireland and the UK. However, since 2006, all prisoners are able to vote and prisons have been set up with polling booths to facilitate prisoners exercising their right to vote.[19]

The European Court of Human Rights has handed down two recent judgments, which may impact upon any decision that the government takes on how to end the blanket ban. In Frodl v Austria [20], the European Court of Human Rights considered the compatibility of Austrian laws on prisoners voting with Article 3 of Protocol 1. The right to vote is removed from all prisoners who are serving a prison sentence of one or more years for a crime committed with intent in Austria.[21] The Austrian Government argued that as the Criminal Code allowed people serving suspended sentences to vote, it was not a blanket ban like the one that exists in the UK. The Court held however, that the law amounted to a violation of Article 3 Protocol 1. It held that any decision on disenfranchisement should be taken by a judge.[22] Furthermore, there must be a sufficient link between the sanction, the conduct of the offender and the circumstances of the individual concerned.[23] It made it clear that disenfranchisement should only be used in exceptional circumstances.

In Italy, prisoners who are sentenced to five or more years imprisonment or who are given a life sentence are barred for life from holding public office. Those who are given a term of imprisonment of between three and five years are barred for five years.[24] This means that they are automatically stripped of their right to vote.[25]

The Court considered Italian prisoner voting laws in Scoppola v Italy.[26] The Applicant had been sentenced to life imprisonment for murdering his wife. This sentenced was reduced to 30 years imprisonment in 2010. 

The Court held that depriving prisoners of the right to vote should only be used as a measure of the last resort.[27] The general measure permanently preventing the applicant from voting had been applied indiscriminately. It was done not on the basis of the offence committed, but rather on the duration of the punishment. No consideration had been given to the seriousness of the offence that had been committed or to the possibility that the applicant may one day be rehabilitated.[28] The Court found that this amounted to a violation of Article 3 of the Protocol 1.

What do these judgments mean for reform of the law in the United Kingdom? Disenfranchisement of all prisoners serving a sentence of four or more years imprisonment could still be incompatible with Article 3 of Protocol 1. Frodl and Scoppola make it clear that any ban on voting should not be applied universally. Some consideration must be paid to the facts of the offence and the individual offender’s circumstances. According to the Frodl judgment, judges should be given the power to determine whether an individual sentenced to a term of imprisonment should have the right to vote taken away from him or her.

Many countries acrossEuropeallow all prisoners to vote regardless of the crime committed. In recent years bothCyprusandIrelandhave decided that giving prisoners the vote is not harmful. TheUKstands with a small number of countries includingRussia, which continue to deprive all prisoners of the right to vote. The judgments of the European Court of Human Rights suggest a halfway house. Nevertheless, in the current environment, it is unlikely that the Government would propose such measures.

[1] From Hirst (No.2) v UK Application No. 74025/01. Judgment of 6^th October 2005, paragraph 33

[2] Appendix A, House of Commons Library, Prisoner’s Voting Rights,  SN/PC 01764, 27^th April 2011,

[3] See FN 2, page 12

[4] Application No. 74025/01, judgment of 6^th October 2005

[5] See paragraphs 82 of the judgment

[6] Paragraph 83

[7] Paragraph 82

[8] See Hansard,  20 Dec 2010: Column 151WS

[9] See FN 2.

[10] See FN 4 of Hirst (No.2)

[11] See FN 6 of Hirst (No.2)

[12] See FN 7 of Hirst (No.2)

[13] See FN 10 of Hirst (No.2) and FN 2 above

[14] See FN 2 above, p.44

[15] p. 26, Joint Committee on Human Rights, Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008, HL Paper173

[16] See FN 2 above, p.44

[17] Application No. 20201/04, judgment of 8^th April 2010

[18] Section 22 of the National Assembly Act, see paragraph 14 of the judgment

[19] Paragraph 34

[20] Paragraph 35

[21] Article 29 of the Penal Code

[22] Article 2 of the D.P.R. 20 marzo 1967, n. 223. See paragraph 25 of Scoppola v Italy, Application No.

[26] 1/05, judgment date, 18^th January 2011,

[23] Application No. 126/05, judgment of 18^th January 2011

[24] Paragraph 40 of the judgment.

[25] Paragraph 49 of the judgment

Issue 1 – March 2011
(Published 30 March, 2011)

Round-up of domestic case law

BREACH OF ARTICLE 5 (4) AND DAMAGES 

R (Faulkner) v Secretary of State for Justice and another [2010] EWCA Civ 1434

14^th December 2010

Prisoner entitled to award of damages for ten months he spent in prison when he ought not to have done, in breach of Article 5(4). 

The Secretary of State twice rejected a Parole Board’s recommendation that F, a prisoner eligible for parole, should be transferred to an open prison. He therefore remained in closed conditions. Under prison guidance he should have had an oral hearing to review that decision within 26 weeks (i.e. at the beginning of 2008). However, due to various delays caused by the SSJ, F did not have his review until January 2009. The decision to release him was not reached until March 2009. A claim for judicial review failed and F appealed.

Although the SSJ contended that F would not have been released in any event in January 2008, the Court of Appeal held that the delays were unjustified and breached Article 5(4). F was entitled to compensation for the 10 month delay. He also showed that on the balance of probabilities he would have been released if the review had taken place in March 2008.

R (Morales) v Parole Board and Others [2011] EWHC 28 (Admin) [2011] All ER (D) 94 (Jan)

14^th January 2011

Parole Board is an independent body or tribunal within the meaning of article 5(4), but failure to conduct an expeditious review of detention following recall on licence breached article 5(4).

M was released on licence in January 2007 but was recalled in February 2007 in relation to an alleged breach of his licence. He remained in prison until November 2007 when the Parole Board found that M had not actually breached his licence conditions.

In an application for judicial review on grounds that the delay in reviewing recall breached article 5(4), the judge found that delay on the part of both the probation service and the Parole Board breached Article 5(4) and M could claim damages for the periods of delay. However, it was reasonable for hearings to be adjourned for the Parole Board to gather further information about the case, so there was no breach between July and November 2007 when the defendants had acted with proper expedition and did not delay unduly. Further, the Parole Board was an independent tribunal for the purposes of Article 5(4).

NO BREACH OF ARTICLE 8

R (Francis) v West Midlands Probation Board [2010] EWCA Civ 1470

21^st December 2010

Probation Board entitled to exercise discretion in refusing to transfer supervision to another Board and had not misdirected itself or unlawfully interfered with the prisoner’s Article 8 rights.

During the custodial term of a life sentence murder, F met and got engaged to a woman with whom he ultimately wished to reside when released. He requested that his probation service supervision be transferred from the West Midlands to Avon and Somerset and his release plan to include residence at a hostel in Bristol. The Respondent refused to approve the transfer as it believed that the risk posed to F’s fiancé was too great if his release plan was approved.

F applied for judicial review on the grounds that: (i) the Respondent had misdirected itself – It was for the Parole Board to decide on release and it would only authorise his release on the basis that he presented minimal risk; (ii) Refusal to transfer was in breach of the couple’s Article 8(1) right to a family life. The application was refused (after a substantive hearing) and F appealed.

The Court of Appeal dismissed the appeal, finding that the West Midlands Probation Board had not usurped the function of the Parole Board or acted inconsistently with any decision that the Parole Board might in due course make. It needed to make its own assessment of the viability of the proposed transfer in order to deicide whether to agree to the transfer request. Furthermore, the Respondent had acted proportionately with regards to F’s Article 8 rights.

RE-CATEGORISATION
Abel Oge-Dengbe v Secretary of State for Justice [2011] EWHC 266

21^st January 2011

A prison review board was wrong to refuse to recategorise a foreign national on the basis that it appeared his refugee status was going to be withdrawn. Read more…

The prison authority’s refusal to reclassify the Claimant from a Category C to a Category D prisoner following a reclassification review was based solely on the Claimant’s deportation status and failed to take account of other relevant policies. Accordingly, it was found that the prison’s decision was both irrational and unreasonable. The fact that an issue was “paramount” in the eyes of the prison, namely his refugee status, did not mean all other factors were to be ignored or not given proper weight.

TRANSFER TO OPEN CONDITIONS

R (D’Cunha) v Parole Board [2011] EWHC 128

1^st February 2011

Recommendations by the Parole Board regarding the transfer of IPP prisoners to open prisons must be done in accordance with Parole Board Directions of August 2004 on release, recall and transfer of life prisoners.

The court held that the section of the “Directions to the Parole Board” under s.32(6) of the Criminal Justice Act 1991 which invited the Parole Board to advise on the suitability for transfer of a lifer to open conditions, also applied to those imprisoned for public protection (“IPP” prisoners). When advising on transfer the Board was required to make a balanced assessment. This assessment was not precisely the same as that to be applied to release, otherwise there would be no point in having a separate request for advice in cases where the Board was unable to direct release.

On the facts of the case the Board, having accepted the SSJ’s invitation, had not considered the question of transfer to open conditions separately from the question of release. Thus, the Board had erred in its approach to consideration of suitability for open conditions by not undertaking a separate assessment from that applied to the issue of the Applicant’s release.

ERRONEOUS RELEASE

R (Smith) v Secretary of State for Justice and Anor [2011] EWHC 81 (Admin)

12^th January 2011

Where a prisoner is unlawfully at large through no fault of his own, whether or not that period should be deducted from time to be served following recall is a matter for the discretion of the Justice Secretary under s.49(2) of the Prison Act 1952.

As a result of an administrative error, S was released from custody and was unlawfully at large between 20 April 2010 and 18 July 2010 when the warrant for his arrest was executed. The Court found that the SSJ had a discretion on whether to make a discount for the period unlawfully at large under s.49(2) of the 1952 Act. Wyn Williams J also made reference to the issued guidance on the exercise of the discretionary power which was to be found in Prison Service Order 6650 Ch 7, para7.1.1., which provides that: “…In exceptional circumstances it may be appropriate to allow a period spent unlawfully at large to count towards completion of the sentence. Each case will be considered on its individual merits”. Since the SSJ had, in refusing to remit the period unlawfully at large, complied with the issued guidance he had not acted unreasonably or irrationally.

THE RIGHT TO VOTE

Tovey, Hydes & Ors v Ministry of Justice [2011] EWHC 271 (QB)

9^th February 2011

Denial of a prisoner’s right to vote (Protocol 1 Article 3 ECHR and Representation of the People Act 1983 s.3) does not give rise to any claim in damages or declaration while the prisoner is serving his/her sentence.

The case was heard the day before Parliament debated whether it should introduce legislation to amend the 1983 Act. The High Court found that, though the subject matter under consideration is the same – the enfranchisement of prisoners – the roles of the courts and of the legislature are distinct. It is no part of the Court’s function to express any view as to the nature of legislative change: merely to rule on the law as it currently stands. This judgment means that a prisoner will not succeed before a court in England and Wales in any claim for damages or a declaration based on his disenfranchisement while serving his sentence.

Scotland, Northern Ireland and Eire

PRISON POLICY

An application by Paul Morgan for Judicial Review [2010] NIQB 103

1 October 2010

The application for judicial review of a prison’s failure to provide sufficient library facilities was successful. The court rejected the Respondent’s submission that Rule 54 of the Prison and Young Offender Centre Rules (NI) 1995 allowed such a discretionary margin for a Governor to provide “inadequate, unsatisfactory [library services] with no consistent and reliable access”.

An application in the matter of Thomas Sloan for Judicial Review [2010] NIQB 122

5 November 2010

A prisoner applied for judicial review of the decision to remove him from a unit from where he could enjoy home leave (the removal effectively preventing him from taking home leave which he had expected). The application was refused on the basis that the discretion enjoyed by the governor, established in a prison policy document, to remove the prisoner from the unit was broad and precautionary. It did not disrupt this discretion that the prisoner may have acted in good faith and the governor acted on incorrect legal advice from the prisoner’s solicitors.

ECtHR CASES

BREACH OF ARTICLE 3

Gladkiy v Russia (Application no. 3243/03, 21 December 2010)

Inadequate medical care in a detention facility had violated the applicant’s rights under Article 3.

G had been diagnosed with and received treatment for tuberculosis in two detention facilities when he was transferred to a third. This facility, built in 1929 and not renovated since, had been the source of previous complaints by applicants to the European court. G claimed that the cells were infested with insects, covered in mould, lacked natural light and air, were excessively humid, unsanitary, lacking in privacy, and that due to overcrowding inmates were unable to sleep or bathe properly. Additionally, G claimed (under Article 3 also), that prison authorities had not taken adequate steps to safeguard his health, causing him to contract tuberculosis in the first place.

The Court stated that no matter the reasons for overcrowding, states had to organise penitentiary systems in a way that respected the individual dignity for inmates, no matter the financial or logistical difficulties faced. Regarding medical treatment, detention facilities did not have to provide treatment at the same level as the ‘best civilian clinics’ and the practical demands of imprisonment must be taken into account. However, because G’s illness was prolonged and deteriorating, his treatment unregulated and erratic, and the required conditions of his care (such as dietary needs) not met, there had been a violation of Article 3.

Kashavelov v Bulgaria (Application no. 891/05, 20 January 2011)

The routine handcuffing of a prisoner every time he left his cell is unjustified and as such held that there was a violation of Article 3.  (K had received a life sentence, had a particularly serious criminal record and posed a particular risk to others).

BREACH OF ARTICLE 9

Jakobski v Poland (Application no. 18429/06, 7 December 2010)

Providing a prisoner with meals that meet religious requirements is part of a state’s positive obligation to take reasonable and appropriate measures to secure the prisoners’ rights under Article 9(1) (the right to freedom of thought, conscience and religion). Whilst providing special meals for a single prisoner may place a special demand on an institution, there must be a fair balance between the interests of the institution and that of the prisoner. Because providing meat-free meals would not be particularly onerous for the prison, the Court found there was a violation under Article 9. The Court stated that observing religious dietary requirements could be considered a direct expression of belief in practice under Article 9.

NO BREACH OF ARTICLE 10

Donaldson v The United Kingdom (Application no. 56975/09, 25 January 2011)

D is an Irish national imprisoned in Northern Ireland. He was prevented from wearing an Easter lily, commemorative of the Easter 1916 uprising, under the Northern Ireland Prison Service Standing Order which prevents the wearing or display of emblems in certain circumstances. He claimed breaches of art.10, 14 and 6 ECHR.

The application was refused on all three grounds, taking into account the margin of appreciation for national jurisdictions to take account of relevant local historical context. It was found that “relatively minor” interference with art.10 was prescribed by law, necessary and proportionate to the prevention of disorder and crime; the art.14 complaint, founded on the fact that other emblems were allowed in the prison, was dismissed on the basis that the national jurisdiction was best placed to determine which emblems might be restricted due to their potential to inflame existing tensions, the decision thus falling within the margin of appreciation; the art.6 complaint was dismissed because of a failure to exhaust domestic remedies.

Comment and Analysis: Prisoners’ Voting Rights

For full case citations see the information box below the article

In Hirst the Grand Chamber of the European Court of Human Rights (ECtHR) found that section 3 of the Representation of the People Act (ROPA) 1983, which imposed a blanket restriction on voting for all convicted prisoners, was incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights. The legislative provision had applied indiscriminately and “automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances” and thus fell outside any acceptable margin of appreciation.

Five years on, the legislation in question has still not been repealed or amended, despite the clear finding of incompatibility by the Grand Chamber. As a result, there have been a series of cases (both here and in Strasbourg) challenging this legislative paralysis. The judgment has led to something of a political crisis which has raised some crucial questions, not just about the fundamental issue of UK compliance with the ECHR but also about the nature of democracy itself.

The first of those cases was Smith v Scott where the Scottish Registration Appeal Court was called upon to consider the refusal of an Electoral Register Official to enrol a convicted prisoner on the electoral register. The Secretary of State made several concessions in that case, including that section 3 was incompatible with A3P1, that the applicant’s rights had been violated and that the Scottish parliament was a legislature for the purposes of Article 3 of Protocol 1. The Court was invited to exercise a possible ‘reading down’ of the section 3 ban by adding words to the effect that the voting ban ‘would apply at the discretion of the sentencing judge’. The Court declined, stating that to do so would be to ‘depart substantially from a fundamental feature of the legislation…the Court would, in a real sense be legislating on its own account, especially in view of the wide range of policy alternatives’ from which a possible solution could be selected. Importantly, the Court did make a declaration of incompatibility.

In the UK case of Chester the prisoner (a post-tariff lifer) again applied unsuccessfully for a judicial review of a decision refusing to register him in the electoral register. Chester invited the High Court to either ‘read down’ section 8 of the European Parliamentary Elections Act (EPEA) 2002 so that it conformed to Convention standards and allowed prisoners the vote; or, to make declarations of incompatibility in relation to sections 3 of ROPA 1983 and/or 8 of EPEA 2002. Although Burton J accepted that having regard to section 3 of the Human Rights Act 1998 and the ‘Marleasing Principle’ (the principle that courts of European Union member states have a duty to interpret national legislation in light of unimplemented European Union directives) he would have jurisdiction to ‘read down’ section 8, he found this was not the appropriate remedy. A declaration of incompatibility had already been made in relation to section 3 (in Smith) so a further one was unnecessary. Most importantly however, the issue of enfranchisement was one for Parliament and it would not be appropriate for a court ill-equipped to deal with matters of important social policy to interfere with that process or attempt a ‘pre-emptive strike’ with regard to one category of prisoner. Thus he declined to make a declaration of incompatibility. Chester was appealed to the Court of Appeal and was heard on 3 November 2010 and judgment was handed down on 17 December 2010 (see below).

However, before the Chester Court of Appeal judgment was handed down, there were developments in Strasbourg. In Frodl the relevant Austrian legislation provided, subject to certain qualifications, that a person convicted “of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote”. At paragraph 23 the Court observed that ‘..there is room for implied limitations and Contracting States must be allowed a wide margin of appreciation in this sphere since there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision’. However the ECtHR also repeated the Hirst criteria which had to be respected by member States in imposing such restrictions: 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 law but by the decision of a judge following judicial proceedings. The ECtHR again found a breach of Art 3 of Protocol 1 finding that the Austrian legislation did not meet all the criteria established in Hirst.

In Greens and MT v United Kingdom (November 2010) the Court found that as a result of the failure to amend section 3 (and the parasitic section 8 ) there has been a violation of Art 3 of Protocol 1. However, the Court rejected the Applicants’ argument that a declaration was not an effective remedy and also rejected the contention that the fact that they could not obtain damages constituted a violation of Article 13. The Court however did lay down a deadline of six months from the date of the judgment for the government to introduce legislative proposals to amend section 3 with a view to achieving compliance with Hirst. Although Greens was decided after argument in the Chester appeal, counsel did make written submissions on the effect of Greens on the appeal in Chester. It is important for litigators to note that the ECtHR in Greens deployed its ‘pilot judgment procedure’ and indicated that it would not be necessary to examine every other application raising a like complaint pending the Respondent State’s compliance with the court’s direction to bring forward legislative proposals within the six-month time limit.

Returning to the UK and to the Court of Appeal judgment in Chester in December 2010, Laws LJ said it was ‘a signal feature’ of the case that the Secretary of State conceded that ROPA 1983, s. 3 is repugnant to and that a declaration of incompatibility had already been made. The appellant submitted that the law relating to prisoners’ access to the franchise has been refined and clarified by Frodl which required that a decision whether a prisoner should be deprived of the vote should be taken by a judge. He submitted first that the Court should “read down” ROPA 1983, s. 3(1) by the notional addition of words which would confer on the judiciary the function of deciding whether any given prisoner should be disfranchised. Alternatively, the court should make a fresh declaration of incompatibility to clarify the law and to promote the effect of the Frodl case. His position was that under the Hirst test, besides ruling out automatic and blanket restrictions, it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions. The Court of Appeal rejected the appellant’s interpretation of Hirst (i.e. that there was a requirement that a prisoner’s disfranchisement must be subject to judicial decision) finding that the Court in Hirst did not declare such an “essential element.” The Court of Appeal plainly felt that it was being asked to provide ‘an advisory opinion as to what legislation, as yet undrafted, might properly contain or omit’ and considered this to be ‘quite beyond the pale’. It held emphatically that this is a political responsibility and ‘the government will no doubt consider carefully whether compliance with these standards requires a decision-making role in specific cases to be accorded to the judiciary’.

Most recently, in Tovey the Court struck out a claim for damages brought by two prisoners for being prohibited from voting in the May 2010 general election or European Parliamentary Elections and a declaration that their rights had been breached. The claimants’ argument was that the failure of the Government to implement the Hirst decision speedily or at all entitled them to damages since a declaration would not provide just satisfaction. Langstaff J found that the wording of section 3 and 8 simply could not be stretched to an interpretation which would fly counter to the legislative wording – the Claimant would have to persuade a Court to read a provision that he was ‘legally incapable’ as being that he was ‘legally capable’, which could not sensibly be done. Section 3 of the HRA 1998 did not affect the continuing validity, operation or enforcement of incompatible primary legislation. The fact that the SSJ did not act to address the contravention identified in the ECHR cases did not in itself give rise to a claim in damages. The claim could not succeed and the application to strike out was allowed.

Political Moves

In December 2009, the Committee of Ministers (charged with supervising the execution of the Court’s judgments by the Member States) expressed ‘serious concern’ at the substantial delay on the part of the UK government in implementing Hirst (followed up in similar terms in both June and September 2010). In March 2010 the Joint Committee on Human Rights commented that “So long as the Government continues to delay removal of the blanket ban on prisoner voting, it risks not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation”. In Greens & MT the Court itself said “the failure of the Respondent State to introduce legislative proposals to put an end to the current incompatibility … is not only an aggravating factor as regards the State’s responsibility under the Convention for an existing or past state of affairs, but also represents a threat to the future effectiveness of the Convention machinery.” In November 2010 the PM acknowledged that the government was required to bring forward legislative proposals to deal with the issue. On 10 February 2011 after debate, MPs in the House of Commons supported the status quo by a majority of 234 to 22. On 22 February 2011 the Library of the House of Commons published a standard note on the current position, including Cabinet Office Minister Mark Harper’s statement that offenders subject to a custodial sentence of less than four years would have the right to vote unless the judge considered this inappropriate when passing sentence. On 15 March 2011 in a written answer to shadow justice secretary Sadiq Khan, Mark Harper said that the number of prisoners applying to the ECt.HR on this issue had risen to 3,500.

Conclusion

The very fact of the inexcusable delay in responding to the Hirst judgment is evidence of how politically difficult this proposition is (or is seen to be) by the Government. The argument of opponents to the principle in Hirst goes something like this: those convicted of crimes have so far distanced themselves from the values of civil society that it would not be right to allow them to participate in its governance. The alternative view described (though not subscribed to) by LJ Laws at para 33 of the Chester judgment is that:

“it is unconstitutional to regard disfranchisement as part of a criminal’s punishment: his punishment is strictly what the law prescribes as punishment; and that is his incarceration and nothing more. They might also question the reasoning in the last sentence, which in one breath treats the franchise as a privilege, and in the next as a right. Given those points, there is no principled basis on which any imprisoned criminal should be deprived of the vote unless, perhaps, his crime has somehow subverted the democratic process”.

So where does this leave the disenfranchised prisoner? In November 2010 there were 2,500 similar applications at the European Court of Human Rights. The Equality and Human Rights Commission has estimated that more than 100,000 prisoners are likely to have been affected by the ban since Hirst. We have clear ECHR jurisprudence holding that a blanket policy of disenfranchisement of prisoners is contrary to the Convention. We have actual declarations of incompatibility and concessions of incompatibility. We have some domestic courts now refusing to issue these cases at all, and those that are issued are being transferred to the High Court and no doubt applications for strike out will follow. Domestic proceedings are currently bound to fail in any event in light of Chester. The Court of Appeal has made it clear that:

‘…. the court has no role to sanction government for such failures. Under the HRA the minister has no obligation to act on a declaration of incompatibility. If he does not, the complainant’s remedy is to take proceedings in Strasbourg where he will be able to deploy the domestic court’s judgment to the effect that his Convention rights have been violated. And failure by a Member State of the Council of Europe to give effect to a decision of the European court of human rights sounds at the political level; it is as such not amenable to sanctions in the national courts….’

Proceedings therefore have to be brought in Strasbourg which has a six month time limit and it appears that the ECtHR is staying all cases anyway. Sadly, it would appear that the executive is taking advantage of our fundamentally important doctrine on the separation of powers which leaves the judiciary powerless to dictate to it as it continues to ignore the Strasbourg jurisprudence. This issue highlights the limited power of the HRA 1998 and reminds us, once more, that Parliament is supreme.

A Comparative View

Australia
Australia practices a compulsory voting system at federal level, with all of the states/territories also following the same model – absent a valid or sufficient reason, it is an offence not to vote in an election. Yet, prisoners’ right to vote is restricted. The Commonwealth Franchise Act 1902 removed the right to vote to anyone who had been convicted of treason or who had been sentenced to a term of imprisonment of one year or longer. In 1983, the Commonwealth Electoral Legislation Amendment Act 1983 was passed allowing those serving terms of less than five years imprisonment to vote in federal elections. 2004 saw the passing Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004, which allowed those prisoners serving terms of three years imprisonment or less to vote in federal elections. The Howard government in 2006 passed the Electoral & Referendum Amendment (Electoral Integrity & Other Measures) Act 2006 which removed the right to vote from all those serving a prison sentence of any length, a hugely controversial measure which was immediately challenged in the courts. In 2007, a majority of the High Court of Australia in Roach v Electoral Commissioner (2007) HCA 43 overturned this ban, restoring the earlier regime as it was under the 2004 Act. Voting is thus currently restricted to those prisoners serving three years imprisonment or less.

The states have their own voting rules in relation to prisoners and those voting rules, unlike in the USA, are conceptually distinct from the federal voting rules. Under the current system it is possible, therefore, for a prisoner to be allowed to vote in a federal election whilst imprisoned, whilst not being allowed to vote in their state or local elections. The length of prison sentences that entail disqualification from voting in Australia are as follows: (i) New South Wales (one year), (ii) Victoria (five years), (iii) Queensland (any prison sentence), (iv) Western Australia (one year), (v) South Australia (no restriction), (vi) Tasmania (three years), (vii) ACT (no restriction), (viii) NT (three years).

Once disqualification from voting has occurred due to a particular term of imprisonment, the individual in question must go through an often complex restoration process which can often contain stipulations – for example, in relation to abode. This lingering process, as in the USA, can often render re-enfranchisement difficult, especially for those very many who upon release, have meagre resources and support networks.

Canada

The Constitutional Act 1791 specifically provided for criminal disenfranchisement. The Canada Elections Act 1985 followed, with section 51(e) holding that all prisoners who were serving a sentence of imprisonment of any length were prohibited from voting. In 1988 the Manitoba Court of Appeal in Re Badger and Attorney-General of Canada et al v Re Picher et al and Attorney-General of Canada et al (1988) 55 DLR (4th) 177, held that the issue of prisoner enfranchisement was one for the legislature rather than the courts, but it was a court, rather than a particular legislative body that should properly determine this area. Section 51(e) of the 1985 Act was then held to be an unconstitutional in Sauvé v. Canada (Attorney General) [1993] 2 S.C.R. 438. In response, the law changed to deny the right to vote to all those inmates serving terms of imprisonment of two years or more. The same inmate brought a second challenge In Sauvé v. Canada (Attorney General) [2002] 3 S.C.R. 519 and the Supreme Court of Canada held that the prohibition on voting on all prisoners serving sentences of imprisonment of two years or more was unconstitutional as the government could not show that it pursued a constitutionally valid purpose or objective, and that the prohibition was reasonable and demonstrably justified. It also failed the proportionality test of the Charter in that the government failed to establish a rational connection between the section 51(e) denial of the right to vote and its stated objectives. The result is that imprisonment per se is no bar to the vote in Canada.  

United States of America

The advent of the Civil War from 1861-1865 changed the political landscape with regard to voting, culminating in the passage of the Fifteenth Amendment to the US Constitution in 1870, which reads: ‘The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude’. Many Southern states in opposition to African American suffrage passed prima facie race-neutral laws narrowing the right to vote for citizens in general, for example property ownership, literacy, and tailored criminal disenfranchisement, all of which were passed in order to limit the extent of the African American vote. Prisoner disenfranchisement was thus used as a tool of racial segregation; crimes that were statistically more likely to be committed by white such as assaults / fighting, not penalised with disenfranchisement.

The US Supreme Court in Richardson v Ramirez 418 U.S. 24 (1974) held that, prisoner disenfranchisement per se was not unconstitutional as against the equal protection clause of the Fourteenth Amendment to the US Constitution and that treating them differently vis-à-vis voting as a class of persons was fully justified by virtue of their criminal conduct. In Hunter v Underwood 471 US 222, 223 (1985), the Supreme Court held that disenfranchisement laws specifically targeting a particular racial group were directly discriminatory. Now, the status of prisoners (and indeed released prisoners) greatly differs from state to state. Among the reforms that have taken place are included the repeal or amendment of permanent disenfranchisement, the amendment of laws denying those prisoners on parole and/or probation the right to vote, and a simplifying of the restoration process of those who have been released from imprisonment. At present only Kentucky and Virginia have permanent disenfranchisement laws for convicts, whereas Maine and Vermont states allow prisoners to vote whilst imprisoned. All other 46 states have systems and laws which fall somewhere between these two poles. Taking into account racial disparities in the US correctional system, the prisoner disenfranchisement laws disproportionately hit minority communities.

Contributors to this edition of the Garden Court Prison Law Bulletin

Maya Sikand
Sarah Hemingway
Deirdre Malone
Umar Azmeh
Fatima Kola
Siobhan Lloyd
Simao Paxi-Cato
Nathaniel Wade