Restriction on right to vote in general election did not breach rights of prisoner serving indeterminate sentence for rape (Hora v. United Kingdom)
In Chamber’s
judgment in the case of Hora v. the United Kingdom (application no. 1048/20) the
European Court of Human Rights held, unanimously, that there had been no
violation of Article 3 of Protocol No. 1 (right to free elections) to the
European Convention on Human Rights.
In the
light of the developments since Hirst, the Court examined the manner in which
the legislation in question had been applied to the specific applicant, in his
particular circumstances. Considering the seriousness of his offending, his
conduct, the risk he was found to pose to the public and the resulting
imposition of a harsh sentence of indeterminate detention, the Court found that
the restriction on his right to vote in the 2019 general election was not
disproportionate.
Facts
The
applicant, Michael Christopher Hora, is a British national who was born in 1966
and is detained in Norwich (the United Kingdom). In 2007 the applicant was
convicted of two counts of rape and one count of sexual assault, perpetrated on
the victim in her home. He was sentenced to an indeterminate sentence of imprisonment
for the public protection with a minimum term of four years. The applicant had previously
been convicted of rape in similar circumstances in 2000.
Pursuant to
section 3 of the Representation of the People Act 1983 (“the 1983 Act”),
convicted prisoners are not allowed to vote in elections in the United Kingdom
unless one of the exceptions in the legislation applies.
In 2005, in its judgment in Hirst, the Grand Chamber of the Court considered that section 3 of the 1983 Act amounted to a blanket ban on prisoners on voting in elections and held that such a general, automatic and indiscriminate restriction on a vitally important Convention right was incompatible with Article 3 of Protocol No. 1.
The United Kingdom subsequently introduced administrative measures intended to ensure compliance with the Hirst judgment. These measures changed policy and guidance to prisons to make clear that prisoners could vote while released on temporary licence; clarified guidance to confirm that prisoners were permitted to vote if released on home detention curfew; and ensured that prisoners were notified of their disenfranchisement when sentenced to imprisonment.
On 6 December 2018 the Committee of Ministers, the Council of Europe
body responsible for supervising the implementation of the Court’s judgments,
adopted a Resolution declaring that it was satisfied with the administrative
measures adopted by the Government of the United Kingdom and decided to close
its examination of the case.
A general election took place in the United Kingdom on 12
December 2019. The applicant
was ineligible to vote as he was in detention on that date and none of the
exceptions in the legislation applied in his case. He did not challenge his
disenfranchisement before the courts in the United Kingdom because the alleged
violation of his Convention rights resulted from an Act of Parliament, which
the courts had no power to disapply.
Relying on
Article 3 of Protocol No. 1 to the Convention, the applicant complained that he
had been prevented from voting in the 2019 general election.
Decision of the Court
The Court
found that the applicant’s disenfranchisement had not been disproportionate to
the legitimate aims behind restricting convicted prisoners’ voting rights.
There had accordingly been no violation of Article 3 of Protocol No. 1 to the
Convention on account of the ineligibility of the applicant to vote in the
general election on 12 December 2019.
The Court’s
approach to the examination of the applicant’s complaint took into account the
relevant developments since the Hirst judgment was adopted.
Ultimately, having widely debated the issue of prisoner voting at the domestic level and having engaged in enhanced dialogue with the Committee of Ministers and the Secretary General of the Council of Europe, the State had chosen to maintain its existing legislative approach and to make administrative changes to the disenfranchisement regime in place.
During that process various consultations had taken place, culminating in the preparation of a draft bill and its examination by a Joint Committee of Parliament. The Joint Committee had recommended the enfranchisement of those sentenced to a term of twelve month or less. That recommendation had not subsequently been enacted in England, but the Government had introduced administrative measures which had been accepted by the Committee of Ministers in 2018 as sufficient to comply with the Hirst judgment, in the light of the State’s freedom to choose how to address the concerns regarding the general legislative framework expressed in Hirst.
As to other relevant developments since the judgment in Hirst, the Court had given clear guidance in other rulings on whether the disenfranchisement of a prisoner, such as the applicant, serving an indeterminate sentence following conviction for a serious offence would be compatible with Article 3 of Protocol no. 1.
The
Supreme Court of the United Kingdom had moreover examined the disenfranchisement
of a prisoner convicted of a serious offence and serving a life sentence, and
had declined to make a declaration that section 3 of the Act was incompatible
with the Convention on the ground that it was clear, having reviewed the
Court’s post-Hirst case-law, that the ineligibility to vote in respect of that particular
claimant was compatible with Article 3 of Protocol No. 1 to the Convention.
Once the process of dialogue between the Committee of Ministers and the State had reached its conclusion and the Committee’s Supervision process closed it remained for the Court to determine in a particular case whether the application of the legislative framework in the applicant’s case had resulted in a violation of Convention rights.
The focus of the Court’s examination at
that stage remained on securing the practical and effective observance of the
Convention. The Court therefore concluded that, in light of the wide margin of
appreciation applicable, it was not justified to examine the Convention
compatibility of section 3 of the 1983 Act in the abstract in the present case
or to identify, in the abstract, particular categories of prisoners whose
disenfranchisement might be incompatible with the right to vote. Instead, it
had to examine the manner in which section 3 of the 1983 Act had been applied
to the specific applicant, in his particular circumstances, in order to determine
whether the restriction on his right to vote had been compatible with Article 3
of Protocol No. 1.
The Court
observed that had the domestic courts been given the opportunity to carry out a
proportionality review of the applicant’s disenfranchisement, it would have had
the benefit of their views in determining the compatibility of the applicant’s
ineligibility to vote at the 2019 general election.
Examining the facts of the applicant’s case, the Court noted that there could be no doubt as to the gravity of the offences of rape and sexual assault of which the applicant had been convicted, which constituted a serious attack on the values of society and on social order. It observed that his 2007 conviction followed a previous conviction in 2000, also for rape.
Taking into account the seriousness
of the offences leading to the 2007 convictions, the pattern of offending
demonstrated by the applicant’s previous criminal conduct and the significant
risk of serious harm he posed to members of the public, the sentencing court
had decided to impose an indeterminate sentence. It could not be said that the
disenfranchisement of the applicant, on account of the seriousness of his
offending, his conduct, the risk he was found to pose to the public and the
resulting imposition of a harsh sentence of indeterminate detention, had been
disproportionate to the legitimate aims pursued by restrictions of the
franchise applied to convicted prisoners. The Court therefore concluded that
there had been no violation of Article 3 of Protocol No. 1. (source: echr.coe.int/photo freepik.com)
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