Prisoners not entitled to compensation for voting ban

19 February 2011 by Rosalind English

Tovey & Ors v Ministry of Justice [2011] EWHC 271 (QB) (18 February 2011) – read judgment.

In a case heard the day before Parliament debated whether it should amend the law preventing prisoners from voting, the High Court struck out a claim for compensation by a prisoner in respect of his disenfranchisement.

Although it was “not part of the court’s function to express any view as to the nature of legislative change”, this ruling confirmed that as a matter of English law, including the Human Rights Act 1998, a prisoner will not succeed before a court in England and Wales in any claim for damages or a declaration based on his disenfranchisement while serving his sentence.The law in this country provides that a prisoner may not vote, in any parliamentary, European, or local election. The case law and debate on this issue is discussed here, here and here on this site.  Very briefly, in 2005 the Strasbourg Court ruled, in the case of Hirst v UK  (2006) 42 EHRR 41, that this blanket ban violated the right to vote under Article 3 Protocol 1. Despite this ruling the UK government has not yet amended the offending provisions of s.3 of the Representation of the People Act 1983.

In proceedings by prisoners subsequently heard in Scotland (Smith v Scott [2007] SC 345), Northern Ireland (R v Secretary of State ex parte Toner and Walsh [1997] NIQB 18) and in England and Wales (Chester v Secretary of State for Justice [2010] EWCA Civ 1439)  the relevant Secretary of State has expressly accepted that the ban on prisoner voting is incompatible with the ECHR.

The most recent ruling on the issue by Strasbourg, Greens and MT v UK, (23rd November 2010) makes clear that the continuing breach does not give rise to compensation sounding in damages; the court concluded that the finding of a violation of the prisoner claimants’ rights “constituted sufficient just satisfaction.” (see our earlier post)

No damages in for prisoner vote ban

This claim was for damages for “being prohibited from voting in the May 2010 General Election” and a declaration of unlawfulness. After the Strasbourg ruling in Greens and MT the lead claimant Mr Tovey sought permission to discontinue and the issues were considered under a similar claim brought by Mr. Hydes.

His claim was also based on the Hirst decision, and the failure of the Government to honour its undertaking given in Article 46(1) of the Convention to “abide by the final judgment of the Court in any case to which [it is a party]”, which it was said infringed his rights under Article 3 of the First Protocol in Part II of Schedule 1 to the Human Rights Act 1998. He sought damages and a declaration to the effect that the blanket ban was incompatible with his Article 3 rights.

The Secretary of State sought to have the claim struck out, or in the alternative sought summary judgment in the sense that the claim had no prospect of success. His contention was that he had not acted unlawfully under Section 6 of the Human Rights Act 1998, since the provision imposing a blanket ban on prisoner voting could not be interpreted in any way that would have enabled him to act otherwise. Section 3 of the HRA imposed an obligation to interpret a statute in a way that was compatible with the ECHR only insofar “as it is possible to do so”.  In Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 Lord Bingham emphasised that in the case of Section 3 of the Representation of the People Act any such interpretation would be beyond such possibility:

change the substance of (the) provision completely, or would remove its pith and substance.

The defendant also contended that his failure to amend the legislation did not amount to an “act” which could be said to be unlawful under Section 6(1) .

No prospect of success

Given that this was a strike out application, Lanstaff J did not have to reach any final determination on these claims. He concluded that the case should be struck out on the basis that

there are no reasonable grounds in domestic law for bringing a claim for damages or a declaration for being disenfranchised whilst a prisoner. Statute precludes it. Case-law is against it. European authority is against the payment of compensatory damages in respect of it.

Although there was no English authority that prevented this particular court from interpreting the offending provision in such a way as to permit Mr Hydes to have the vote, the judge was persuaded by the “force of the combined reasoning” in the relevant Scottish and Irish authorities, which went all one way.

As to argument that failure of the Secretary of State to amend the legislation (as distinct from denial of franchise)  of itself justified  compensation, the judge observed that Section 6(6) HRA could not lend itself to such an interpretation. The section itself was not the one that prevented the claimant having the vote, which was the only foundation of his claim:

Its only relevance to the claimant’s case is that it prevents him from suing for compensation, not for a breach of that right but a failure to introduce legislation to remedy it.

As for the application for a declaration, this had already been made in Smith v Scott and therefore there was nothing of additional practical use which granting a declaration would serve.

A large element of this judgment was given over to the matter of “lead” claimants in cases such as this where there is a cohort of similar applications. This, and the related matters of the proper procedure for allowing a lead claimant to discontinue, substituting another claimant and the question of dividing liability for costs between them, will be discussed in a later post.

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