Sean Fear investigates

The ruling by the European Court of Human Rights (ECHR) that this country’s blanket ban on prisoners voting is unlawful has handed Cameron’s political opponents a handy stick with which to beat him. The Commons has made it absolutely plain that this ruling is anathema, yet at the same time, Kenneth Clarke, and the Liberal Democrats, are adamant that the ruling must be complied with. Right wing newspapers are arguing that Britain should withdraw from the European Convention on Human Rights (the Convention). Cameron has sought to kick the issue into touch by establishing a commission to look into the relationship between this country and the ECHR, although since the commission includes Lord Lester and Lady Kennedy among its members, it is unlikely to provide Cameron with the sort of answer that might satisfy his critics.

However, Britain’s legal establishment may have provided Cameron with room to manoeuvre. One case which has attracted little attention outside the legal press is R v Horncastle and Others. a Supreme Court decision from December 2009. The case was an appeal against a conviction which was based on hearsay evidence, in that in one case, the victim gave a statement to the police following their assault, but died before they could give evidence at trial, and in the other, the victim was too frightened to give evidence at trial, but their statement was still used in evidence. Both sets of appellants argued that they had been denied the right to a fair trial under Article 6 of the Convention. They relied on earlier rulings by the ECHR, against the British government, that where hearsay evidence is the “sole or decisive” reason for convicting a defendant, Article 6 has been breached. Both appeals against conviction were dismissed by the Supreme Court.

The Supreme Court ruled that the ECHR had misapplied the law, and that this country’s rules (set out in the Criminal Justice Act 2003) complied with Article 6. Seven Law Lords heard this appeal, rather than the usual five, which demonstrates the importance of the case. Their ruling was unanimous, and the ruling was delivered by the President, Lord Phillips, who declared:

“The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.”

Lord Brown went further and declared that, “[there is] the distinct possibility that the Strasbourg Court …… really did intend to lay down an absolute principle along the lines here contended for[that is, ruling out a conviction where hearsay evidence is the “sole or decisive reason for it] and it may be, indeed, that the outcome of that very case itself tends to support such a view. In this event the question then arises: what should this Court do? Should we accept and apply this absolute principle with the inevitable result that these appeals must be allowed or should we instead decline to follow the Strasbourg decision … I have not the least doubt that the latter course is to be preferred.”

What is significant is that this country’s most senior judges are effectively stating that ultimately, they, and not the ECHR are entitled to determine whether this country’s laws are compliant with the ECHR.

How is this relevant to votes for prisoners?

British judges have proved extremely unsympathetic to claims by prisoners against the British government that they have been denied the right to vote, in breach of Article 3 of the Convention. In the class action of Tovey & Others v Minister of Justice (2011) Mr. Justice Langstaffe struck out a claim by prisoners who were deprived of the right to vote, declaring “This judgment is to the effect that, applying those laws, including the Human Rights Act 1998, 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. Note, the claim was not even allowed to proceed to trial. This followed the ruling of the Court of Appeal in Chesters (2010) which made much the same point.

From these decisions we can conclude, firstly, British judges are not necessarily bound to follow decisions made by the ECHR, and will reserve the right to depart from such decisions; secondly , if they conclude that a piece of British legislation complies with the Convention, they will uphold it, even in the face of an adverse ruling from the ECHR; and finally, no British Court will entertain a claim based on breach of Article 3 of the Convention by a serving prisoner.

Should the government fail to enfranchise prisoners, it is hard to see what legal sanction it could face.

Sean Fear has been posting on PB since 2004 and is a lawyer