The Strasbourg Court decision is rubbish, but we should accept it
I have no idea how the Prime Minister is going to get out of his prisoners’ dilemma over the European Court of Human Rights, having declared in the House of Commons yesterday: “Prisoners are not getting the vote under this Government.”
I have suggested a solution before, based on the exclusion from the British ban of remand prisoners, fine defaulters and people detained for contempt of court, which means that we do not have the blanket ban that the Court alleged.
77. The Government have argued that the measure was proportionate, pointing out inter alia that it only affected some 48,000 prisoners (not the 70,000 stated in the Chamber judgment which omitted to take into account prisoners on remand who were no longer under any ban) and submitting that the ban was in fact restricted in its application as it affected only those convicted of crimes serious enough to warrant a custodial sentence and not including those detained on remand, for contempt of court or default in payment of fines. On the latter point, the Latvian Government have also placed emphasis on the fact that in Contracting States imprisonment was the last resort of criminal justice (paragraph 55 above). The Court, firstly, does not regard the difference in numbers identified above to be decisive. The fact remains that it is a significant figure and it cannot be claimed that the bar is negligible in its effects. Secondly, while it is true that there are categories of detained persons unaffected by the bar, it nonetheless includes a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. Further, the Court observes that, even in the case of offenders whose offences are sufficiently serious to attract an immediate custodial sentence, whether the offender is in fact deprived of the right to vote will depend on whether the sentencing judge imposes such a sentence or elects for some other form of disposal, such as a community sentence. In this regard, it may be noted that in sentencing the criminal courts in England and Wales make no reference to disenfranchisement and it is not apparent, beyond the fact that a court considered it appropriate to impose a sentence of imprisonment, that there is any direct link between the facts of any individual case and the removal of the right to vote.
So the Court admits that it got the numbers hopelessly wrong in its initial ruling, overlooking 22,000 remand prisoners, but says it changes nothing. Despite the evidence, it insists that the UK has imposed an indiscriminate, blanket ban. Which it has not.
It is a useless decision and I completely sympathise with MPs who think that the House of Commons should take precedence. It is tempting to take the vote away from fine defaulters and people detained for contempt of court; thank the Court for drawing attention to this anomaly; and to ask judges to take into account the suspension of the right to vote in sentencing policy.
But the question is whether, having submitted to the Court’s jurisdiction, which is generally a good thing, this decision is so offensive that the UK should repudiate it.
I don’t think so.
*We don’t agree, but he knows what he is talking about: do read his blog.Tagged in: echr, prisoners' votes
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