©secretlondon123/Flickr

©secretlondon123/Flickr

The European Court for Human Rights has ruled that it is illegal for the UK to have a complete ban on prisoners being able to vote in elections. In a survey for You Gov last year 69% of the public said that they believed no prisoners at all (irrespective of the length of their sentence) should be allowed to vote.

 John Hirst was the man who successfully petitioned the ECHR to overturn the UK’s blanket ban.

 John Hirst also spent 25 years in jail after killing his landlady with an axe.

Is it possible to agree with him?

People who commit monstrous crimes are not necessarily monsters. If they were, things would be easy. But they aren't and it is one of the experiences of life.”
―Bernhard Schlink

 

There was nothing easy for Nina Burton-Harris following her mother’s death at the hands of John Hirst. In an interview with The Guardian she reported that she wasn’t allowed to identify her mother’s body at the police station because of the nature of the crime.

Concepts like redemption and forgiveness, which are usually argued over abstractly when discussing crime and prisons, are difficult for her to consider when the consequences of her mother’s murder are still profoundly affecting her 27 years later.

She said that she will never forgive the man who took her mother away. An event that led to the break-up of her relationship of her fiancé and her being proscribed tranquilisers, and an event that she believes changed her father irrevocably and led to his early death.

The notes from the trial of John Hirst recount the murder of Mrs. Bronia Burton as follows:

“On the evening of June 23 they were watching television when Mrs Burton asked the defendant (Hirst) to collect some coal from the shed. He went to the shed, got the coal and at the same time picked up a heavy hand axe. He returned to the living room, put the coal on the fire, and then approached Mrs Burton and hit her, perhaps seven times, on the head with the axe. He then went to the kitchen to make coffee and drank it, waiting for Mrs Burton to die."

Hirst eventually spent 25 years in prison.

In 2001 he decided to sue the High Court over the law that prevents all prisoners from voting, and lost. Undeterred, he took his case to the European Court of Human Rights, and in 2004 they ruled in his favour.  This ruling consequently required the U.K. to amend legislation that had been set down in the Forfeiture Act 1870 and to allow some prisoners the vote. The justification was that the current law violates Protocol 1, Article 3 of the European Convention on Human Rights (ECHR), which provides citizens “the right to regular, free and fair elections”.

This was not a popular proclamation.

  ©JamesRussell/Flickr

©JamesRussell/Flickr

 

When You Gov surveyed 2097 adults in 2011 they asked people to decide which of the following options best reflected their view on this matter:

-          All prisoners should be allowed to vote (8%)

-          Prisoners serving less than four years should be allowed to vote (3%)

-          Prisoners serving a sentence less than one year should be allowed to vote (9%)

-          Prisoners serving less than 6 months should be allowed to vote (6%)

-          No prisoners should be allowed to vote (69%)

-          Don’t know (5%)

As Neil O’Brien, director of think tank Policy Exchange, who commissioned the survey, wrote in the Daily Telegraph “This isn’t what the public want”. He added: “And this on a question strongly loaded towards giving prisoners the vote”.

In response to the ECtHR’s suggestion that this law was archaic and outdated and had not been properly reconsidered, Jack Straw MP and David Davis MP tabled a motion in the House of Commons to debate the matter. In the consequent vote MPs were overwhelmingly in their opposition to the ECHR’s ruling by a sum of 234 to 22.

David Cameron has gone on record declaring that the thought of subsequently being forced to give prisoners the vote makes him feel “physically sick”.

It seems though that other leaders in Europe are perhaps not as weakly stomached as Mr Cameron. The only other European countries who share the UK’s outright ban are Armenia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg, Romania and Russia. The other countries either allow all prisoners to vote or have legislated that only those convicted of certain crimes or serving whole-life sentences are excluded. According to the BBC News website: “Germany's laws actually urge prisons to encourage their inmates to vote.”

 

If such a ban had never existed in the UK and was being proposed now, would the public or the press feel that this consideration would be a valid use of MPs time in Parliament when facing a potential triple-dip recession? And in the same circumstance if the introduction of such a law put the prerogative for disenfranchisement into the hands of sentencing judges how prolifically would it be enacted? Judges currently determine punishments based on parameters set by the Sentencing Council.

According to Mr. Justice Globe, speaking on the BBC News Website, there are five broad principles that inform the Sentencing Council's decisions, “protecting the public, punishing the offender, deterring crime, rehabilitating the offender and offering reparation to the victim”. Into which of these would the revocation of voting right fit?

Peter Selby, former Bishop to HM Prisons has said: “Denying convicted prisoners the right to vote serves no purpose of deterrence”. The European Court of Human Right similarly said that they “found no evidence to support the claim that disenfranchisement deterred crime and considered that the imposition of a blanket punishment on all prisoners, regardless of their crime or individual circumstances, indicated no rational link between the punishment and the offender”.

But there also seems to be a lack of proportionality to the ban when used as punishment. On Election Day both those imprisoned for failing to pay their TV license and convicted serial killers are similarly prevented from casting a vote.

Andrew Neilson, Director of Campaigns at the Howard League for Penal Reform believes that “In general the public mood is punitive and the suggestion that prisoners should be able to vote is seen as evidence of ‘being soft’ on prisoners.”

Interestingly, the turnout at the last general election in 2010 was 65% of the eligible voting population; so it would appear to follow that at least 4% of those polled by YouGov would deny prisoners the vote while they themselves choose not to vote.

 

  ©Ivana Vasilj/Flickr

©Ivana Vasilj/Flickr

It is much easier to maintain that those who commit crimes are simply evil. To see the world in black and white, where the distinction between good and evil is a cavernous gulf, and not where wrongdoing occurs on a sliding scale. The public may think that the question as to whether to extend any kind of suffrage to prisoners is an obvious “no”, but an immediately hostile and emotion response to crime leaves little opportunity to tackle its causes and rehabilitate offenders.

In the book A Place of Redemption: A Christian Approach to Punishment and Prison it is argued that it is unrealistic to simply hope that each prison sentence relieves the outside world of another problem: “For too long there has been a tendency to consider prison at the ultimate backstop for all society’s problems. This must stop. Prison must not be a dustbin for the problems society fails to address elsewhere… Prisons without hope are mere storage pens. Our present penal policy is tantamount to a sentence of banishment and little more…”

Shami Chakrabati, Director of Liberty has said: “A victim of a crime may feel understandable revulsion if a convicted prisoner re-builds any kind of life but this re-building can prevent future crime. Depriving some people of their liberty is vital for public protection but depriving all prisoners of the vote is as petty and counter-productive as depriving them of books or communication with their families.”

But are there positively active reasons for giving all prisoners the vote?

It’s not that simple says Andrew Neilson: “Giving prisoners the right to vote would have some symbolic value in rehabilitation, as it is a step away from the kind of civic alienation which poses a barrier to people desisting from offending.  It is much harder to evidence a meaningful impact in something like reoffending rates, however.”

This positive symbolism at least contains belief in the potential for reforming offenders. Maintaining the opposite surely can have no constructive outcomes.

 Prison Library  ©Gavin Harper/Flickr

Prison Library ©Gavin Harper/Flickr

For John Hirst a turning point in his life came when Stephen Shaw, then Director of the Prison Reform Trust visited his prison and handed him a copy of Prison Rules: A Working Guide. This transformed Hirst’s perception of how to challenge authorities and alleged abuses of power in a constructive way. Speaking to The Independent in 1996 he recalled how he used to try and get his own way with violence, but not only was that easily contained by prison guards it also diminished his authority when later posing legitimate complaints. For him, reading extensively on Law and giving himself an education, gave him a voice. This knowledge was empowering, and a much more productive and successful way to enact change than violence ever had been.

In spite of their legal obligation, and a lack of logical justification for the status quo, the government appears to be stalling for time.

Their tactic of postponing amending the current law by publishing a draft bill on potential options for allowing some prisoners to vote seeks to outwardly show kind of progressive gesture to the European Court. But, according to Joshua Rozenberg writing in The Guardian, the re-enacting of the ban to cover those sentenced to six months, or four years or more both may not suffice either:  "There are arguments that a ban determined by sentence length only remains 'general, automatic and indiscriminate', and as such incompatible."

Despite the loud and provocative protestations coming from parliament about giving rights to rapists and burglars and paedophiles, Andrew Neilson believes that MPs are less concerned about the ethics of disenfranchising prisoners and more concerned with their authority being superseded by the European Court: “Ultimately I think it is the ECtHR which is the target of much of the media and political opposition. So the real issues driving opposition to prisoner voting would be concerns around parliamentary sovereignty and an antipathy to all things ‘Europe’.”

That the real issue might not be about prisoners voting at all is reflected in the incongruous current legislation on electoral fraud. It is believed that those who commit electoral fraud – who actively seek to manipulate elections themselves for their own personal, financial or political gains – can duly be trusted to vote again after a ban of just five years. So it seems inconsistent to suggest that the government’s opposition to the ruling is simply based on ethical considerations about criminals being given an equal say in society and not a long held opposition to the ECtHR.

The UK was instrumental in drafting the European Convention on Human Rights, and when it ratified the document in 1951 it wilfully gave up a small amount of sovereignty to the associated Court. And let it not be forgotten as well, say Humanrightsblog.com that “much of what the Court (and, more broadly, human rights law) does is to protect unpopular groups from popular but aggressive state acts”.

The Prison Reform Trust argues that “voting should not be privilege; it is a basic human right. This entitlement is not a selective reward for those who have been judged morally decent by a government”.

This idea is echoed by James Graham from Unlock Democracy who has written that “it is a mark of civilisation that the majority does not always get its way and that we respect the rights of minorities; this is the basic standard we expect all countries to respect.”

Unfortunately, the Court’s ruling and its persistent calls for the UK to act on this matter are offering the largely Europhobic government a perfect, and seemingly reasonable, opportunity to rebel against the ECtHR and use this as an excuse to withdraw from the convention.

With regards to the actual debate on prisoner voting, James Graham believes that “all sense of proportion in this debate appears to have been lost.”

At one point, in 2011, David Blackburn, writing for The Spectator, reported that the UK’s refusal to comply with the ruling could lead to an eventual “compensation liability of £143million”.

It has subsequently been reported that Chris Grayling is considering blocking prisoners from access to legal aid to try to stem this potential liability. But despite this, and other similar posturing, David Blackburn claims that parliament will not be able to escape compensation claims if they vote to keep a blanket ban on prisoner voting, even if they took the most extreme action of withdrawing from the European Convention, as they would still be legally obliged to compensate prisoners.

To maintain parliamentary sovereignty and authority and power it appears that the government may be willing to defy the European Court, and the example of many of its neighbours, and readily give prisoners thousands of pounds rather than the vote.


John Hirst has Aspergers Syndrome.

John Hirst was incessantly passed around from care homes to foster families when he was younger.

John Hirst pleaded guilty to manslaughter by reason of diminished responsibility, but not guilty to murdering his landlady Mrs Bronia Burton with an axe. Cruelly this then caused Mrs Burton’s family to hear, and be forced to consider, the extenuating circumstances to this unprovoked murder.

Nina Burton said in her interview with The Guardian: "Yes he'd had a bad upbringing. He was sexually abused. And I do feel very sorry for him for that. But there was no reason to be a criminal. The judge said he should serve a minimum of 15 years, but I just couldn't believe it. I wanted him in prison for the rest of his life.”

Nina Burton should not be expected to agree with any leniency shown to convicted criminals. Nobody should seek to convince her that there are strong economic or philosophical or moral arguments to giving prisoners the vote, or preach to her that suffrage may improve their rehabilitation and be another factor in attempting to prevent recidivism.

But society as a whole should not be so quick to dismiss these arguments, and should demand a better standard of scrutiny from their elected representatives. And when somebody points to low voter turnout in prisons in the Republic of Ireland, at their last general election, and says that prisoners probably never voted in the past, and wouldn’t even vote if they were given the chance anyway, society should respond by asking ‘why’ and wonder if this apathy can be explained.

Why are they so dislocated and what effect has that been having? And what could happen if we helped to change this?

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