Yesterday, for the fourth time, the European Court of Human Rights ruled again that the UK is in breach of human rights by having a blanket ban on allowing convicted prisoners serving a custodial sentence the right to vote: it’s nearly ten years now since the UK was first ordered to make some change in this ban, and neither Labour nor Conservatives have cared to do so. (The ECHR has made no order for monetary compensation, which is the only thing likely to move either party.)
In October 2014, there were 7,755 prisoners serving a custodial sentence in Scotland: the imprisonment rate in Scotland is 147 out of 100,000 people (via the Howard League). Since August 2010, there has been a statutory presumption against convicted criminals being sentenced to short periods of imprisonment, unless the court can show reason why this should be so. From the Criminal Justice and Licensing (Scotland) Act 2010
“a court must not pass a sentence of imprisonment for a term of three months or less on a person unless the court considers that no other method of dealing with the person is appropriate.”
If a person goes to jail, it will under most circumstances be because they committed an offence that the court decided mandated a sentence of four months at least. The general rule for any sentence of 12 months or less is that a prisoner will be released automatically on probation after they have served half their sentence.
Any person sentenced to four months in prison after 9th March 2015 until 7th May 2015 will, in addition to the penalty of spending time in prison, also be deprived of their right to vote. Any prisoner released from custody after 20 April 2015 has also lost their right to vote in the 7 May 2015 election (unless their voter registration at their previous address is still current and available to them) since a convicted prisoner serving a custodial sentence is not allowed to register to vote. (A prisoner on remand, who has not yet been sentenced, is still entitled to register and to vote from the prison: as the Prison Reform Trust notes, this is a difficult right to exercise as a prisoner on remand is unlikely to be told they still have this right if they wish to exercise it. But the right to vote applies until a prisoner is actually sentenced, so that in the case of the General Election this year, a prisoner on remand who was sentenced on Wednesday 6th May loses their right to vote: a prisoner sentenced on Friday 8th May does not.)
Losing your right to vote is a serious matter: it is a loss of your basic citizenship. In the UK prison system, both in Scotland and in England and Wales, this loss of citizenship is arbitrary: it could quite literally depend on the day of the week you were convicted or sentenced: what day of the week you were released from custody: for prisoners serving less than 12 months, you could lose your right to vote because you were homeless when convicted and were released after the deadline to register to vote.
How is this just? When a person commits a crime, when a court rules they must serve time in prison, their sentence should be based on the facts of the law and on the details of their offence. If the court rules that they are to lose their right to vote, this should be based on something less arbitrary than the day or the time of year they were sentenced.
The European Court of Human Rights has ruled that this is a breach of prisoners’ human rights. The ECHR has not ruled that all custodial prisoners must be allowed to vote: only that in agreeing to Article 3 of the First Protocol, the right to free elections, removal of a person’s right to vote must have a clear link to the criminal action of the person whose right to vote has been removed. This the UK courts do not do.
In particular, disenfranchisement is a very serious matter and it will require a discernible and sufficient link between the sanction of disenfranchising someone and the conduct and circumstances of the person being disenfranchised. A blanket, automatic restriction that applies regardless of individual circumstances will be in breach of the right to vote.
The 2013 ban on prisoners receiving parcels from outside – which ensured women in prison would be denied clean underwear and other items not available in the prison shop, and which ensured anyone inside would not be allowed to receive books from friends or charities, was accepted as a human rights issue: to be sentenced to prison does not mean, should not mean, that you are sentenced to wear filthy underwear for the duration of your time in prison, and neither should it mean that you are not allowed to read or write while locked in a cell. That it is easier to get illegal drugs than clean underwear in prison should shame us.
Mark Haddon wrote – specifically about the ban on books, though the ban on receiving parcels was broader than a ban on books –
There is, I think, one main reason, and it is a theme that runs through so much coalition thinking about society: their inability – their refusal perhaps – to imagine what it is like to be on the receiving end of many of their policies.
One aspect of the ruling that was seldom discussed during the campaign was that a ban on receiving gifts is also a ban on giving gifts. Most prisoners have families on the outside – children, parents, partners, siblings, none of whom have done anything wrong – and this was a punishment for them, too. Especially around birthdays. Especially in the run-up up to Christmas.
But the ban on prisoners’ voting is not merely a refusal to consider what it’s like not to be a wealthy, privileged person who’s unlikely ever to see the inside of a jail cell: it’s similar to the equally arbitary and unjust sanctioning system instituted by the Department of Work and Pensions: the belief that the people to whom it is applied are beneath contempt, that a politician who advocates injustice done to them will win kudos with the “general public” – the large majority who are not ever going to experience prison, the smaller but still significant majority who don’t have to claim benefits. The blanket ban on all prisoners sentenced to a custodial sentence having the right to vote is too unjust to be anything but a populist measure; the cheery belief by David Cameron and his ilk that they will only win by denying prisoners and benefits-claimants their basic rights, because no one cares enough to make this an electoral issue.
I wrote in November 2012 that to make the system less arbitrary, it would simply have to be related to length of sentence: anyone sentenced to less than two years shouldn’t lose their right to vote: anyone due to be released within the term of the next Parliament (or council election) should have the right to vote in that election: prisoners entitled to vote should receive the usual electoral material, should be allowed to hold a hustings in prison which all prisoners entitled to vote may attend, and all prisoners entitled to vote should be encouraged to register to vote and to make use of the franchise.
No one should be deprived of their vote by an essentially arbitrary process dependent on date of sentencing.