PROCEDURE

The case originated in an application (no. 74025/01) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr John Hirst (“the applicant”), on 5 July 2001.

The applicant, who had been granted legal aid, was represented by Mr E. Abrahamson, a solicitor practising in Liverpool. The United Kingdom Government (“the Government”) were represented by their Agents, initially by Mr J. Grainger and subsequently by Ms E. Willmott, both of the Foreign and Commonwealth Office.

The applicant alleged that as a convicted prisoner in detention he had been subject to a blanket ban on voting in elections. He relied on Article 3 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, and on Article 10 of the Convention.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 8 July 2003 it was declared partly admissible by a Chamber of that Section, composed of Mr M. Pellonpää, President, Sir Nicolas Bratza, Mrs V. Strážnická, Mr R. Maruste, Mr S. Pavlovschi, Mr L. Garlicki, Mr J. Borrego Borrego, judges, and Mr M. O’Boyle, Section Registrar.

A hearing took place in public in the Human Rights Building, Strasbourg, on 16 December 2003 (Rule 59 § 3). In its judgment of 30 March 2004 (“the Chamber judgment”), the Chamber held unanimously that there had been a violation of Article 3 of Protocol No. 1 and that no separate issues arose under Articles 14 and 10 of the Convention. It also held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

On 23 June 2004 the Government requested that the case be referred to the Grand Chamber (Article 43 of the Convention).

On 10 November 2004 a panel of the Grand Chamber decided to accept the request for a referral (Rule 73).

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The applicant and the Government each filed a memorial. Observations were also received from the AIRE Centre and the Government of Latvia, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments at the hearing mentioned below (Rule 44 § 5).

A hearing took place in public in the Human Rights Building, Strasbourg, on 27 April 2005 (Rule 59 § 3). There appeared before the Court: (a) for the Government Ms E. Willmott, Agent, Mr R. Singh QC, Counsel, Ms M. Hodgson, Mr M. Rawlings, Mr B. Daw, Advisers; (b) for the applicant Ms F. Krause, Counsel, Mr E. Abrahamson, Solicitor. The Court heard addresses by Mr Singh and Ms Krause.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1950.

On 11 February 1980 the applicant pleaded guilty to manslaughter on the ground of diminished responsibility. His guilty plea was accepted on the basis of medical evidence that he was a man with a severe personality disorder to such a degree that he was amoral. He was sentenced to a term of discretionary life imprisonment.

The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired on 25 June 1994. His continued detention was based on considerations of risk and dangerousness, the Parole Board considering that he continued to present a risk of serious harm to the public.

The applicant, who is barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections, issued proceedings in the High Court under section 4 of the Human Rights Act 1998, seeking a declaration that this provision was incompatible with the European Convention on Human Rights.

The applicant’s application was heard by the Divisional Court on 21 and 22 March 2001, together with an application for judicial review by two other prisoners, Mr Pearson and Mr Feal-Martinez, who had applied for registration as electors and been refused by the Registration Officer and who also sought a declaration of incompatibility.

In the Divisional Court judgment dated 4 April 2001, Lord Justice Kennedy noted that section 3 had a long history and cited the Secretary of State’s reasons, given in the proceedings, for maintaining the current policy: “By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period. There is more than one element to punishment than forcible detention. Removal from society means removal from the privileges of society, amongst which is the right to vote for one’s representative.” Examining the state of practice in other jurisdictions, he observed that in Europe only eight countries, including the United Kingdom, did not give convicted prisoners a vote, while twenty did not disenfranchise prisoners and eight imposed a more restricted disenfranchisement. Reference was made to the United States Supreme Court which had rejected a challenge to the Californian Constitution’s disenfranchisement of convicted prisoners (see Richardson v. Ramirez [1974] 418 United States: Supreme Court Reports 24). Some considerable attention was given to Canadian precedents, which were relied on by both parties, in particular that of the Canadian Supreme Court which, in Sauvé v. Canada (no. 1) ([1992] 2 Supreme Court Reports 438), struck down the disenfranchisement of all prisoners as too widely drawn and infringing the minimum impairment rule, and that of the Federal Court of Appeal which, in Sauvé (no. 2) ([2000] 2 Federal Court Reports 117), upheld the subsequent legislative provision restricting the ban to prisoners serving a sentence of two years or more in a correctional institution. While it was noted that the Canadian courts were applying a differently phrased provision in their Charter of Rights and Freedoms, the Divisional Court commented that the judgment of Linden JA in the second case in the Federal Court of Appeal contained helpful observations, in particular as regards the danger of the courts usurping the role of Parliament. The cases before the European Commission of Human Rights and this Court were also reviewed, the Divisional Court noting that the Commission had been consistent in its approach in accepting restrictions on persons convicted and detained. Lord Justice Kennedy concluded: “... I return to what was said by the European Court in paragraph 52 of its judgment in Mathieu-Mohin. Of course as far as an individual prisoner is concerned disenfranchisement does impair the very essence of his right to vote, but that is too simplistic an approach, because what Article 3 of the First Protocol is really concerned with is the wider question of universal franchise, and ‘the free expression of the opinion of the people in the choice of the legislature’. If an individual is to be disenfranchised that must be in the pursuit of a legitimate aim. In the case of a convicted prisoner serving his sentence the aim may not be easy to articulate. Clearly there is an element of punishment, and also an element of electoral law. As the Home Secretary said, Parliament has taken the view that for the period during which they are in custody convicted prisoners have forfeited their right to have a say in the way the country is governed. The Working Group said that such prisoners had lost the moral authority to vote. Perhaps the best course is that suggested by Linden JA, namely to leave to philosophers the true nature of this disenfranchisement whilst recognising that the legislation does different things. The European Court also requires that the means employed to restrict the implied Convention rights to vote are not disproportionate, and that is the point at which, as it seems to me, it is appropriate for this Court to defer to the legislature. It is easy to be critical of a law which operates against a wide spectrum (e.g. in relation to its effect on post-tariff discretionary life prisoners, and those detained under some provision of the Mental Health Act 1983), but, as is clear from the authorities, those States which disenfranchise following conviction do not all limit the period of disenfranchisement to the period in custody. Parliament in this country could have provided differently in order to meet the objectives which it discerned, and like McLachlin J in Canada, I would accept that the tailoring process seldom admits of perfection, so the courts must afford some leeway to the legislator. As [counsel for the Secretary of State] submits, there is a broad spectrum of approaches among democratic societies, and the United Kingdom falls into the middle of the spectrum. In course of time this position may move, either by way of further fine tuning, as was recently done in relation to remand prisoners and others, or more radically, but its position in the spectrum is plainly a matter for Parliament not for the courts. That applies even to the ‘hard cases’ of post-tariff discretionary life sentence prisoners ... They have all been convicted and if, for example, Parliament were to have said that all those sentenced to life imprisonment lose the franchise for life the apparent anomaly of their position would disappear. ... If section 3(1) of the 1983 Act can meet the challenge of Article 3 [of the First Protocol] then Article 14 has nothing to offer, any more than Article 10.”

The applicant’s claims were accordingly dismissed as were those of the other prisoners.

On 2 May 2001 an application for permission to appeal was filed on behalf of Mr Pearson and Mr Feal-Martinez, together with a forty-three-page skeleton argument. On 15 May 2001 Lord Justice Buxton considered the application on the papers and refused permission on the ground that the appeal had no real prospect of success.

On 19 May 2001 the applicant filed an application for permission to appeal. On 7 June 2001, his application was considered on the papers by Lord Justice Simon Brown who refused permission for the same reasons as Lord Justice Buxton in relation to the earlier applications. The applicant’s renewed application, together with the renewed applications of Mr Pearson and Mr Feal-Martinez, were refused on 18 June 2001, after oral argument, by Lord Justice Simon Brown.

On 25 May 2004 the applicant was released from prison on licence.