July 21 2022

Prisoner voting: ‘more an issue for the Daily Mail than the average prisoner’

Prisoner voting: ‘more an issue for the Daily Mail than the average prisoner’

Photographs by Andy Aitchison at PRISONiMAGE, (@prisonimage)
Photographs by Andy Aitchison at PRISONiMAGE, (@prisonimage)

Photographs by Andy Aitchison at PRISONiMAGE, (@prisonimage)

Both Prime Minister David Cameron and the Ministry of Justice are no doubt relieved by today’s judgment by the European Court of Justice (ECJ) on the vexed issue of whether member states can maintain an indefinite ban on prisoners voting in elections. As it turns out, the ECJ has endorsed the practice of certain EU states to disenfranchise those who have been convicted of serious offences even after their release from custody.

In Britain the ‘votes for prisoners’ question has been a regular cause of much outrage among Conservative politicians, with the PM going as far as to state that the very idea makes him feel ‘physically ill‘. So the timing of the latest ECJ ruling could have been decidedly inconvenient, coming in the midst of this week’s Conservative Party Conference.

With the UK having defiantly refused to implement previous decisions by the European Court of Human Rights (ECHR) in favour of allowing at least some prisoners the vote, today’s judgment by the ECJ – which would have been legally binding on Britain – could have made the current standoff over votes much worse. However, the Court today rejected a challenge from a French citizen, M. Thierry Delvigne, who argued that he had been deprived of his civic rights (including the right to vote in both French and European Parliamentary elections) following his conviction for a serious criminal offence back in 1988, for which he received a 12-year sentence.

Prisoner voting in France
Until March 1994, anyone convicted of a serious offence under French law automatically lost the right to vote permanently. Since then, a ban has ceased to be automatic and disenfranchisement is the subject of a specific decision by the court. In such cases, the ban cannot exceed 10 years. However, the current legislation was not retrospective and Delvigne remains subject to the old system, so has lost his right to vote indefinitely. It was this discrepancy he was challenging before the ECJ, and more specifically his loss of voting rights for the European Parliamentary elections.

The Court, while accepting that the question was indeed admissible, has come down on the side of the French government. In the judgment, the reasoning given is that the Article 39(2) of the Charter ‘does not preclude legislation of a Member State… from excluding, by operation of law, from those entitled to vote in elections to the European Parliament… .’  It also states that limitations can be proposed on the exercise of fundamental rights, provided that these are ‘proportionate’.

Moreover, the Court also pointed out that there is a procedure in France whereby a person in M. Delvigne’s position can apply for the reinstatement of his civil rights. In essence, there is a review mechanism.

Impact on prisoners in the UK?
So what impact will this have on prisoners in the UK? The short answer is none whatsoever.

The British government had already let it be known that had the ECJ decision gone against its French counterpart, that it wouldn’t alter its fundamental stance that such decisions should be made by the UK Parliament, not by the courts – more specifically not by European courts. Unlike ECHR decisions, ECJ judgments are legally binding on EU member states, so the stakes would have been rather higher.

While this might have led to an ongoing standoff with the European Court, essentially the government would have tried to subvert the outcome. No doubt an argument would have been made that the judgement would only be relevant to the European Parliament elections.

As it happens, however, the outcome of Delvigne’s legal challenge has been to strengthen Cameron’s hand. The ECJ has endorsed the right of national legislatures to make decisions on disenfranchisement as long as these are ‘proportionate’.

This issue does arouse strong feelings on both sides, although hardliners opposed to prisoners having the vote while they are imprisoned seem to get far more impassioned about the issue than serving prisoners, many of whom have never voted in their lives (quite a number are also non-EU nationals who wouldn’t be affected anyway). In fact, the issue is more a concern for the Daily Mail headline writers than for the average prisoner – even those held on remand pending trial who technically retain the legal right to cast their vote, even if no actual arrangements are put in place by the Prison Service for them to exercise it.

Of course, some prisoners do feel strongly about their disenfranchisement, even though it is only limited to the period they are actually in custody. Unlike the French system, the British concept of ‘civil death’ for convicted criminals does not extend beyond their release from custody, even if this is on licence or home detention curfew (HDC).

There are other anomalies, of course. Someone who is sent to prison won’t lose their voting rights if they serve their sentence at any time between General or European Elections, so it is really the ‘luck of the calendar’ whether a conviction also involves the loss of the right to vote. Technically, an individual could be sentenced to a substantial term of imprisonment – say seven years – shortly after voting in an election. He or she could then serve the full custodial element of their sentence (usually half) and be released in time to register to vote before the next parliamentary poll. So no loss of voting rights at all, even on a lengthy term of imprisonment.

In contrast, someone could be sent down for a very short prison sentence of a few days just before a general election and be disenfranchised as a result of the timing, even if they were released the day after polling closed. Moreover, anyone who receives a suspended custodial sentence or a community penalty is also unaffected, so the present system is pretty arbitrary.

It’s unlikely that the ECJ judgment will have any impact on the ongoing campaign to give at least some serving prisoners the vote in the UK, especially those on short sentences. However, the outcome will doubtless strengthen the position of those opposed to prisoners casting votes – and will be one less European headache for David Cameron to deal with, particularly in respect of the very vocal anti-EU faction in his own party.