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Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

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26 February, 2014
Civil Liberties, Colin Murray, Human Rights Law
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David Miranda

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

Stop and Search certainly was the hot human rights news story of last summer within the UK. Schedule 7 powers under the Terrorism Act 2000 allow for extended powers to stop and search, and even detain for up to nine hours individuals in the context of ports and airports, for the purpose of assessing whether they are linked to terrorism. That police powers should be extensive in this context might be thought relatively uncontroversial. After all, the potential to trap hostages in such a confined space was attractive to terrorist groups long before the 9/11 attacks displayed the potential of using civilian airliners as weapons.

The problem, as so often is when counter-terrorism is at issue, is that when such exorbitant powers are assumed, legal systems can find it very difficult to constrain their abuse. The problem really comes to the fore when, as David Anderson QC, the UK’s independent reviewer of counter-terrorism powers, told Parliament on 12 November, criticism of the security services within the UK is often muted, partly because of national pride in their activities (dating from the work of the code breakers at Bletchley Park during the Second World War) and partly as a result of the 007 brand’s ongoing appeal.

This situation produces one key question. In rather feverish context of the security debate, and with a seemingly in-built national deference to the activities of the security services, what is to stop police and security officials from abusing extended stop and search powers? For over a decade the airport powers attracted little attention. This is especially the case when their operation is compared to the furore which surrounded the day-to-day use of extended counter-terrorism stop-and-search powers on the UK’s streets, which ultimately led to the European Court of Human Rights finding a breach of Article 8 ECHR. The police seem to have appreciated, as Joshua Rosenberg picked up from Anderson’s reports on the use of Schedule 7, that the power was not simply valuable, but that “like all valuable things, it needs careful handling”.

The powers suddenly became an issue of national importance with the detention for nine hours at Heathrow of David Miranda (pictured above), partner of US journalist Glenn Greenwald. The police were investigating whether Miranda had in his possession US national security documents received from the NSA whistleblower Edward Snowden. Embarrassing for a key ally perhaps, but where is the basis for using counter-terrorism powers, Greenwald and his supporters asserted? Miranda was not a member of any banned terrorist group. For the police, however, the link between these security-related documents and counter-terrorism powers was indirect, based upon the damage that the release of these documents could do to counter-terrorism operations. This attempt to link his case to terrorism has been likened to a “conjuror’s trick” by barrister and blogger Adam Wagner.

Yesterday the High Court ruled that a challenge to the legitimacy of this exercise of the power and to the compatibility of the power generally with the freedom of expression under Article 10 ECHR could not succeed. First off, Lord Justice Laws (giving the lead judgment) quickly dismissed the contention that the power had been used for an improper purpose, ie, that the examining police officers’ purpose in stopping Miranda was out with the scope of a counter-terrorism power. Laws LJ summed up the purpose of the Detective Superintendent involved stopping Miranda (at [24]): “given the connection with Mr Snowden and the latter’s movements, that the claimant might have been concerned in acts falling within the definition of terrorism in s.1 of the 2000 Act which might be carried out by Russia and designed to influence the British government”.

The key factor is that the court accepted that the definition of terrorism under section 1 of the Terrorism Act 2000 was broad enough to provide a basis for this arrest, notwithstanding that Miranda himself could not be described as a “suspected terrorist” (at [29]):

[T]he bare proposition that the definition of terrorism in s.1 is very wide or far reaching does not of itself instruct us very deeply in the proper use of Schedule 7. … S.1(2) is concerned only to define the categories of “action” whose use or threat may constitute terrorism: not to impose any accompanying mental element. Similarly, the expression “concerned in” in s.40(1)(b) is not to be taken to import the criteria for guilt as a secondary party which the criminal law requires in a case of joint enterprise.

As long as Miranda was linked to Snowden, who was intent on publishing materials which would influence government policy and could endanger the lives of UK agents, this was sufficient for the court to find that the purpose was proper (at [32]):

Putting all these features together, it appears to me that the Schedule 7 power is given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2). If the possibility is established, the statute prescribes no particular consequence. What happens will depend, plainly, on the outcome of the Schedule 7 examination including any searches where those have been carried out. There may be a prosecution for an offence under the Act, or indeed some other offence; materials in the subject’s possession may be retained if the general law allows it; the subject may be released with no further action.

In terms of whether the stop was proportionate, in light of Miranda’s involvement in journalistic endeavour, drew Laws LJ into a detailed consideration of the freedom of the press in general. Whilst he appreciated that importance of the public interest in a free press, the proportionality of any interference had to be judged in light of other public interests, such as national security (at [46]):

[There is] an important difference between the general justification of free expression and the particular justification of its sub-class, journalistic expression. The former is a right which belongs to every individual for his own sake. But the latter is given to serve the public at large; … It follows that so far as Mr Ryder claims a heightened protection for his client (or the material his client was carrying) on account of his association with the journalist Mr Greenwald … [t]he contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

Whilst he was not willing to give carte blanche to a public official’s assertions of security concerns (see [57]), Laws LJ was clear that valid security concerns had been made out in this case, and that he would not substitute a journalists view of these questions for those of government (at [71]):

Journalists have no … constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government …

Wrapping up, Laws LJ concludes that the powers (limited to a ports and airports context) are hedged by adequate safeguards. For all that complaints have already begun regarding the level of respect accorded to elected decision makers in the security context, it seems that the strongest ground for appeal is this briefly addressed issue of safeguards. After all, it was the basis on which the general no-suspicion stop-and-search power was subject to major reform in the Protection of Freedoms Act 2012, and is already under fresh review by David Anderson QC. This legal battle may be lost, the war over counter-terrorism powers looks set to rage on.

Lessons from the Lex Gabinia

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20 February, 2014
Administrative Law, Civil Liberties, Constitutional Law, Harry Perrin, Human Rights Law
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‘Gnaeus Pompeius Magnus’ (‘Pompey’ or ‘Pompey the Great’)

– Harry Perrin (Independent Scholar and Trainee Solicitor)

It wasn’t all yo-ho-ho and a bottle of rum for the Ancient Romans when it came to pirates. By the fourth decade of the first century BC, Plutarch tells us, the pirates were so prevalent in the Mediterranean that ‘all navigation and all commerce were at a standstill’ causing resource shortages and volatile food prices. ‘Roman supremacy’, Plutarch continues, was ‘brought into contempt’ not only by the pirates’ ‘seizures of high ranking officials, and the ransoms which they demanded for captured cities’, but by ‘their flute-playing, their stringed instruments, their drunken revels along every coast.’ Evil crimes indeed.

The way in which the Romans dealt with the problem tends to spring to my mind whenever our country today is faced with situations billed as ‘emergencies’ or ‘extraordinary’.

The constitution of the Roman Republic in the first century BC was designed so that no one person could amass too much power over too prolonged a period: ‘an elaborate set of precautions against the accumulation of executive power in a single person’, notes Eric Posner, ‘to prevent the recurrence of monarchy’. There were two heads of state, the consuls, who held office for one year. The post which a consul would typically hold afterwards, the proconsulship – governing a foreign province in the Roman territories – was also limited in term to one year to prevent an already powerful individual accruing too much military might away from the watchful eyes of Rome.

If you are a fan of irony, you may already have spotted that from this Republic’s careful constitution sprang one of the most powerful empires we have known. Note also that Sulla, a constitutional reformer who tightened many checks and balances in 81BC (including limiting the proconsulship to one year), did so when he himself was holding dictatorial power on the basis of an emergency; and note the lex Gabinia.

One hundred and twenty thousand infantrymen, five thousand cavalrymen, five hundred ships, and the right to appoint twenty four powerful lieutenants, were among the resources allotted to Pompey by Gabinius’ law, passed in 67 BC, to combat piracy in the Med. In terms of territorial command, Plutarch notes that Pompey’s power over the sea and mainland areas up to fifty miles inland meant that ‘there were not many places in the Roman world which were not included.’ He had not only ‘the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone.’ So much for the elaborate system of checks and balances.

Unsurprisingly with these resources Pompey dealt with the problem with incredible speed. Food prices dropped as soon as the lex Gabinia was passed and piracy was quashed within three months.

But Pompey did not surrender his power. Another ‘extraordinary situation’ justified Pompey not only keeping his naval command and resources, but being allotted further power over the Roman territory in the East, including the military forces already stationed there, then under the command of his colleagues Lucullus and Glabrio. The lex Manilia was passed to this effect in 66BC. The justification: war in the East, against Mithridates and Tigranes.

It is easy to turn history into linear narratives and morality tales with the benefit of hindsight, and history’s headlines should be questioned and re-questioned for accuracy and fairness. The headline point here is that the excessive accrual of power by Pompey clashed with the excessive accrual of power by Julius Caesar. Caesar crossed the Rubicon, said ‘the die is cast’; civil war, birth of the empire and the rest, as they say, is ancient history.

Headlines are memorable though, and I do remember the lex Gabinia whenever ‘emergency measures’ are proposed today. Take the detention of terror suspects. Until January 2011, the state could detain those suspected of terrorism-related offences, without charge, potentially without even telling them the reason for their detention, for up to 28 days. Unsuccessful proposals went before Parliament to raise this to ninety and then forty two days. The justification for prolonged detention without charge was that the country was in an extraordinary situation, and emergency measures were appropriate.

And were the laws put back to normal once the emergency had passed; once the pirates had been defeated, as it were? The detention-without-charge period was restored to fourteen days, but, as human rights group Liberty points out, this is still high compared with the USA (two days), Italy (four days), Canada (one day) and Ireland (seven days). Many would argue that the danger still exists here, that the pirates have not been conquered. This may or may not be so, but when a so-called extraordinary situation prevails for so long, it becomes the norm – it becomes ordinary – and we should discount any arguments based on the need to deal with an emergency in our assessment of whether laws in question are proportionate.

And take the trials following the summer 2011 riots, where courts sat throughout the night. Keir Starmer, Director of Public Prosecutions at the time, has praised the role of this swift administration of justice in curbing the disorder. Sentences for crimes committed during the riots were on average 4.5 times longer than those for similar offences in the previous year. This is not problematic per se, provided that due process was followed: judges can take account of the context of crimes when sentencing.

More of a concern is that due process was not followed. Solicitors who acted for defendants in the riot trials have voiced concerns, noting knee jerk reactions from judges, ‘conveyor-belt justice’, and a failure to distinguish between ringleaders and followers. A magistrate stated that the usual sentencing rulebook for children with no previous convictions had been ‘torn up and thrown away’.

The justification for the all-night courts was that the emergency in which the country found itself in August 2011 required an extraordinary response. This may well hold water. My concern though, and that of the defence lawyers cited above, is that these measures may have been disproportionate to the extent that they unjustifiably interfered with the defendants’ right to a fair trial.

I acknowledge that had the judiciary and the government failed to deal adequately with the riots, the consequences would have been dire – even more so than they were, and that all-night courts may well have been the best option. And the lex Gabinia may have been the right way of dealing with the pirates. Pompey succeeded where no other commander did. It is easy to point at it now as the beginning of the end of the Roman Republic, but if the pirates had prevailed, we might all be playing flutes and speaking pirate now. Aargh!

I have never been suspected of terrorism or rioting, or even piracy (though I have once exhibited drunken behaviour in a Mediterranean coastal-town). I do however urge the conscientious citizen to assess any proposals which have the potential to infringe on our rights or constitution and to bear in mind the lex Gabinia. Ask the following, because these issues matter to all of us:

  1. Is the measure proposed proportionate to the issue it is proposed to deal with?
  2. Are the reasons for justifying the measure sufficiently closely related to the measure, and if any of these reasons fall away (‘emergency measures’ when the emergency has ceased) is the measure still justified?
  3. Has consideration of the proposed measure been properly weighed up against a consideration of its effects on the constitution and on our rights?

There we have it: the ‘caveat Gabinia’. I have just coined a phrase. Latin scholars correct my grammar before it catches on.

Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights

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13 February, 2014
Colin Murray, Human Rights Law
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Untitled

Tom Watson MP (Picture Credit: The Telegraph)

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP.

His impact as a minister may have been limited, and his spell as Deputy Chair of the Labour Party might have ended ignominiously last summer, but as a backbench parliamentarian he has few equals. He knows how to use the power of select committees, castigating Rupert Murdock as a “mafia boss” when the latter appeared before the Culture, Media and Sport Committee. Alongside this grand standing comes the meticulous use of an MP’s privilege to question ministers. The House of Commons’ Questions Book overflows with queries over the minutiae of UK drone policy, systematic probing which aims to build up a picture of UK operations and to identify weaknesses in the Government’s legal and policy justifications. He is also a master of the Trojan-horse question, keeping the issue of drones alive even in tangentially related debates. A couple of weeks ago, in a debate on redundancies in the UK armed forces, he popped up with the following question:

[W]e have deployed military personnel in a US base in Djibouti. Please will he tell me what their role is? Are they involved in the drones programme in Yemen, and will they be affected by this cuts announcement?

Alas, readers, no substantive answer. For the UK Government is seemingly intent on boring Watson and his tenacious APPG into submission, or at least driving the public to disinterest. Questions on “drone strikes” are met by a blizzard of blandishments and technical-sounding acronyms. The UK doesn’t have drones, it operates UAS (Unmanned Aircraft Systems) or RPAS (Remotely Piloted Aircraft Systems) or UAV (Unmanned Air Vehicles), depending on the minister responding.

But Watson appreciates the limits of a parliamentarian’s reach. The APPG is well-resourced and backed by expert groups outside Parliament (declarations of interest show that the legal NGO Reprieve provides regular funding for a researcher to support its activities). Furthermore, in an effort to deflect the claims of political partisanship that invariably accompany any scrutiny work by MPs, Watson’s APPG has turned to commissioning and publishing legal advice on drones. And not simply on drones. With an eye towards the bigger prize, the legal advice sought by the APPG manages to elide the two most pressing security issues of our times; drones and electronic interceptions by UK spy agencies.

The advice, provided by the highly-respected Jemima Stratford QC and her colleague at Brick Court Chambers Tim Johnson, examines a scenario where the UK intercepts information (whether through the contents of an electronic communication or associated “metadata”), permits the United States to access it, and the United States then employs that information as the basis of a lethal drone strike. The barristers explain in their beginning of their advice (at [5]), ‘the authorities must establish that every step in the chain is lawful if they are to be permitted to carry on with these activities’, before making out what seems like a compelling case on which grounds UK law may fall foul of the requirements of Article 8 of the ECHR (the right to private and family life).

Their analysis is at its strongest when it comes to their discussion of various rouses which may be used by GCHQ to enable “mass” interception (ie, interception not permitted by a specific warrant) of contents of electronic communications within the UK (for example, by arguing that it is routed through a US-based internet server). Such efforts to circumvent the legal regime for intelligence gathering under the Regulation of Investigatory Powers Act 2000 are a key plank of the allegations made by Edward Snowden. And it turns out that with advice in hand focussing on this issue Watson is pushing at an open door. Figures who should know better, like Conservative grandee (and former Foreign Secretary) Sir Malcolm Rifkind, who heads up Parliament’s Intelligence and Security Committee, have in recent weeks spectacularly failed to coherently counter allegations over the legality of UK intelligence gathering. In a Channel 4 News interview Rifkind blustered that his committee’s oversight of Government Communication Headquarters (GCHQ) activities had been entirely appropriate as there was lawful authorisation of these activities under RIPA. This approach abjectly fails to deal with the contention in the Stratford/Johnson advice that it is not the existence but the “quality” of the law which is problematic in granting too broad a power to security agencies (see [35]).

Watson must have been laughing at this point, as the security community has so tied itself up in knots over an intervention before the European Court that Rifkind is reduced to repeatedly saying he thinks that the terms of RIPA are sufficient lawful authority. He would be wise to disappear from our TV screens for a while. All of this looks like pointing towards an easy win in Strasbourg, where Big Brother Watch v United Kingdom is pending before the European Court. High-fives for Watson on the way into Court (with a special degree of kudos for finding a way to hitch his APPG’s work on drones to the challenge to RIPA).

But as I noted last summer, the European Court has rarely challenged Security Service judgements over the requirements of national security and has often given considerable leeway, provided a legal framework is in place, on questions of whether interference with privacy interests are “proportionate” (for the classic example of this case law, see Klass v Germany). The claimants will have to establish that abuse of the RIPA framework has occurred or that the framework itself is inadequate constraint upon state surveillance. Even a “win” on the basis that there are not adequate protections surrounding the harvesting of metadata is unlikely to ultimately prevent the Security Services from undertaking this activity. As the Stratford/Johnson advice notes (at [46]):

RIPA is now 13 years old. As discussed above, the statute draws a sharp distinction between content and communications data. That distinction derives (at least to some extent) from the traditional ‘postal’ distinction between the address on the envelope and its contents. However, the significance of that boundary has been eroded by the realities modern internet usage. Communications data now encompasses each individual URL visited, the contents of an individual’s Twitter and Facebook address lists, messages posted on social media websites and numerous other significant elements of an individual’s online private life. Given modern trends in internet use, the binary distinction between contents and communications data has become increasingly artificial.

Precisely because this material is so useful for the work of security agencies across Europe, the European Court is highly unlikely, even if the current RIPA regime is found to be inadequate, to require specific authorisation for every interception of such information (as is required for the contents of communications). Defeat for the UK Government is likely to be embarrassing (and may require enhanced oversight), but in all likelihood GCHQ will be left with sufficient leeway to continue widespread surveillance of metadata.

As for drones, the supposed focus of the Stratford/Johnson advice hardly gets off the ground before running into the brick wall of the Khan case, where just last month the Court of Appeal emphatically refused to get drawn into passing judgment on the illegality of activities of a foreign state (in this case the US). The advice continues to look at the question based on the issue of data transfer ([85] onwards), but with the courts maintaining this stonewalling approach (effectively saying that claimants should pursue a claim against the US directly), it all begins to sound rather hopeful. So much for Government having to make out every step in the chain to win its case, if the courts will not even grant such claims permission to proceed to full judicial review.

Not that this issue necessarily matters. Fear of adverse judgements in the security sphere can have as salutary an effect on Government policy as joyful scenes of victorious claimants. The UK Government seems particularly defensive on issues of drone policy and intelligence sharing, as Professor Michael Clarke of the defence think-tank RUSI noted late last year:

We share information and it’s very hard to say that it is not used to target individuals. There’s a reasonable presumption that sharing information makes us complicit in the US policy…the UK silence [on the UK’s role in the US drone programme] is deafening.

Watson (with a little help from his legal team) appears to have his foes on the run even when the ground he stands on is weak.

Victims’ Law: A Need for Reform?

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9 February, 2014
Criminal Law, Hannah Harrison, Law & Practice
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(Image Attribution:By Lonpicman (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons))

– Hannah Harrison (LLB Law, Newcastle University) h.e.harrison@newcastle.ac.uk

Since his tenure as Director of Public Prosecutions ended on 1st November 2013, Keir Starmer has been leading an enquiry for the Labour Party about transforming victims’ rights in the criminal justice system. In a recent article for the Guardian, Starmer called for a Victims’ Law to protect vulnerable victims of sexual abuse and to support them through the invasive, distressing trial process. Although witness services exist to comfort victims throughout their time in court, Starmer suggests that change is needed to ensure victims feel safer and have more confidence in the criminal justice system.

Starmer evidences the need for change by highlighting the inability victims often feel to even report a crime in the first place. All of the ‘214 victims of recordable offences’ in Operation Yewtree, known as the Jimmy Saville case, reported the incidents following his death and when asked why there was a delay in making a statement ‘many cited a fear of not being believed or a feeling that the criminal justice system would be ineffective in prosecuting the offender’. Starmer states that the ‘crude’ police tests into checking witness credibility often discourage victims from making a statement. Even if a victim does have the courage to step forward, the focus by police and prosecutors, on whether the ‘victim was able to give a coherent and full account first time, whether the victim had returned to the perpetrator, and whether the victim had been affected by drink or drugs’ disheartens many who feel they are not being taken seriously. As Starmer indicates, ‘if the criteria for testing their credibility match the characteristics that make them vulnerable in the first place’ surely this is a fundamental flaw in the approach of criminal justice? We should be identifying victims’ vulnerabilities and supporting them and not discriminating them because of these things.

Furthermore, the adversarial system in court lacks support for victims, especially those of sexual abuse. The battle between prosecution and defence to extract all of the intimate and humiliating details from a witness is traumatising to them. Having to retell the worst event of their lives in excruciating detail to a room full of strangers, whilst facing the perpetrator, is highly distressing. Very recently, Tracy Shelvey fell to her death after being told that the man she accused of rape was acquitted. Officers reported that she was ‘angry and upset’ and was even visited at home, before her death, by ambulance and police staff after she called them in a highly distressed state. The Greater Manchester Police and Crime Commissioner, Tony Lloyd expressed a need ‘to learn from this tragedy and others that have come before’ as it ‘is abundantly clear is that victims and witnesses are not where they should be – at the heart of the criminal justice system’. He further highlighted that the issue of victim support was of grave concern and that it is crucial to constantly support victims from the initial reporting of the crime until after the trial has concluded. Starmer and Lloyd both agreed that a more radical review and an upheaval of the current system are needed.

Sadly, this is not the first case where a victim has been so deeply affected by a trial. The family of Francis Andrade are adamant that she was driven to suicide after she accused her former teacher of rape. Mrs Andrade took her own life whilst the trial was ongoing, mere days after she was cross-examined on events that had occurred when she was a teenager. Her son Oliver stated that being branded a liar and a fantasist during the trial seriously compromised her personal integrity, ‘more than she could bear’. It was reported that the judge had to ask Mr Brewer to avert his gaze from her after she felt too under pressure from his stares whilst in the witness box. Mrs Andrade’s husband told the court that she had become deeply depressed following her initial police interview and the fact that she died before a verdict was reached illustrates the intense pressure victims are under in the witness box. Tragically, another woman took her own life two years after alleging she had been raped by two soldiers. The inquest was told that Corporal Anne-Marie Ellement, a royal military police officer who was found hanging in her barracks, was left absolutely devastated by the decision not to prosecute the two soldiers she claimed had raped her while she was stationed in Germany.

A code of practice for victims was released in October 2013 but the death of Miss Shelvey since then, confirms that more must be done to help those in need. Although the code of practice is detailed and comprehensive in how victims can obtain support, it does little to address the need for mental health support, which often troubles victims of sexual abuse.

Starmer’s investigation is still ongoing and he is yet to release any details on his proposals for reform. Following the death of Miss Shelvey, the Ministry of Justice admitted that ‘more could be done’ to help vulnerable witnesses. It added that they are currently trialing a new way of ‘sparing vulnerable witnesses the trauma of appearing in court’ through pre-trial cross examination. Despite this, Tony Lloyd announced that he would be writing to the Home Secretary and the Justice Secretary to demand a review of the current support system for witnesses and alleged victims.

Giving evidence is a harrowing often brutal ordeal, especially for victims of violence or sexual abuse so what is needed is a focus on those deeply affected by crime. As Starmer identified, ‘this is a golden opportunity to recast the criminal justice system as a criminal justice service fit for victims’.

Prisoner’s Voting Rights: Constitutional Implications at their Finest

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19 January, 2014
EU, Human Rights Law, Michael Keightley, North East Law Review Blog Competition
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A prisoner

(Image Source: http://www.theguardian.com/politics/2013/oct/16/votes-prisoners-supreme-court-rejects-appeal)

– Michael Keightley (LLB Law, Newcastle University) m.keightley@hotmail.co.uk

The European Court of Human Rights (ECHR) ruling that embodies more than the question of prisoner’s rights to vote in the UK is the case of Hirst v United Kingdom ((2006) 42 EHRR 41, [70]). It was a ruling that sparked controversy in 2005 and has set an eight-year resistance against a ruling that has been followed by an incredible 2,354 ‘clone’ cases of people claiming an infringement of their human rights – thereby forcing the question ‘should prisoners be allowed the vote?’

Regardless of your answer it is easy to see that, in principle, a blanket ban is somewhat immoral. It seems unconstitutional to withhold a right that is crucial to the continuation of democracy from a group of people only on the basis that they are part of that group. Arguably, comparisons can be made to the mistreatment of people based on their gender, race, or belief; if it is immoral to unequally treat people based on such groupings, then is it not immoral to disenfranchise prisoners?

These examples, however, are incredibly general and do not follow similar patterns to the disenfranchisement of prisoners. Take someone’s gender and race, obviously these are dependent upon biological circumstances, as opposed to an active decision. Beliefs are born from socialisation, which can influence action – but people are imprisoned for actions against the state, not the beliefs that may or may not influence that action. Prisoners are sentenced for their actions against the state and consequently are, as a group, disenfranchised for those actions. Allowing prisoners the right to vote in the democratic society that they have committed a crime against undermines the idea of taking responsibility for one’s actions – with civil responsibility being crucial in the structure of a healthy democracy, undermining such a concept is counterproductive to the sustainment of democratic principles.

Outside of constitutional and moral considerations are the wider implications of the European Union (EU). The financial implications seem to be the first at hand as the Strasbourg court could issue orders of compensation as a result of this failure to follow the ruling of the UK courts; seen as though no damages have been awarded in such cases previously, it is open to theory and contemplation as to what financial loss this could cause the government and the taxpayer. Say, for example, if a mere £1,500 was awarded in compensation to all 2,354 prisoners; the government would suffer a loss of £3,532,500 in total (not including court fees). Dominic Raab, Tory MP, simply argues “the Strasbourg court can’t force Britain to give any of these prisoners the vote, let alone compensation.” He then goes on to say that it is a matter of “democratic principle” to let Parliament make such a choice – however, Parliament have been delaying this crucial decision for eight years, surely now is the time for the EU to step in? Regardless of whether or not Raab is correct, defying the issuing of compensation from Strasbourg would hardly benefit the current tenuous relationship that the UK has with the EU. With murmurs of referendum from the Conservatives, shouts of independence from UKIP, and a plethora of statistics scattered across the web stating the consequences of being remaining in the EU the pressure only mounts for action to be taken.

But by blatantly ignoring the ECHR ruling for eight years are we not – in the words of Dominic Grieve, attorney general – “creating a degree of anarchy in the international order that [the UK is] trying to promote?” Thorbjørn Jagland, the secretary-general of the Council of Europe, views England as a “founding father” of convention and a “leading nation on human rights”; and the UK’s refusal to co-operate with the convention they are said to embody undermines the foundations and values of the EU and threatens the UK’s EU-membership.

MPs have now made the decision to draft the Voting Eligibility (Prisoners) Draft Bill, which outlines three main options for allowing prisoners to vote: continue with the current blanket-ban that is in force (option one), allow those with sentences of four years or less to vote (option two), or to allow prisoner’s with sentences of six months or less to vote (option three). This Bill is clearly influenced by the political motivation to hold off threats from Strasbourg and not influenced by a motivation to alter, or grant, constitutional rights.

The political motivation is reflected in the Bill’s inflexible options, which fail to address the real issue of prisoners voting rights. First of all, it does not fully consider the crime committed and its context, only sentence length. The issue here being that there seems to be no clear reason as to why the limit was set at four years, or even six months. The inflexibility and general-nature of these options only lead one to believe that such legislation would only be enacted to allow the UK to attempt to maintain positive relations with the EU and not to respect the concept of human rights; this political move is a poor attempt to respect the value of the right to vote and only shows a lack of consideration of the real issue.

Perhaps it would be more constitutional to create a system where people are not subject to a blanket disenfranchisement, or disenfranchisement based on general sentence length, but a consideration of the crime and its context before disenfranchisement; which could lead to a disenfranchisement system based upon precedent as opposed to generalised sentencing. This proposition opens up room for further debate on how such a system would initially be judged and where the limitations of disenfranchisement should lie. Not to mention, the bill that the taxpayers would be footing to have the cases considered in court could be potentially enormous.

The question to consider in regard to prisoner’s voting rights is whether or not you consider the right to vote as a privilege or a human right. If you consider it a privilege then you delve into further questions of defining what would allow such a privilege; but if you consider it a human right then, considering that prisoners are human, then prisoners should have the vote – I feel it is fair to say that there is little deliberation about the definition of human.

Whatever your personal opinions on prisoners voting rights and the UK’s membership to the EU it is clear that these two issues would ideally be decided separately. However, given the eight-year long wait for action in consideration of the ECHR’s ruling and the distant proposals for a referendum these issues have become closely intertwined and something of concern to the UK public. In theory, the outcome here stands on the same grounds as the infamous Factortame decision (Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (Costs) (No.2) [2002] EWCA Civ 932) – deciding a crucial constitutional decision for the UK and concerning the supremacy of UK Parliament over the European Union.