Prisoner voting consultation: analysis of responses

2. Linking prisoner's right to vote to the length of their sentence

2.1 The consultation paper sets out four possible options for change around prisoner voting:

• Option 1: to link enfranchisement to the length of a prisoner's custodial sentence.
• Option 2: to make disenfranchisement an additional sentencing option, to be applied at the discretion of the sentencing judge.
• Option 3: to link disenfranchisement to the type of crime committed.
• Option 4: to link a prisoner's regaining the right to vote to the length of time remaining on their custodial sentence.

2.2 The Scottish Government's favoured option is to extend the right to vote only to prisoners who have been sentenced to a shorter period of imprisonment (Option 1). The consultation paper suggests that the length of the sentence imposed is, generally speaking, a reflection of the seriousness of the case and that Option 1 would strike an appropriate balance between removing the right to vote only where the circumstances are serious enough to justify such a longer sentence and wider objectives of the rehabilitation and reintegration of prisoners in order to reduce reoffending.

Question 1: Do you think that prisoners' right to vote in Scottish Parliament and Local Government elections should be linked to the length of their sentence?

2.3 Responses to Question 1 by respondent type are set out in Table 2 below.

Table 2: Question 1 - Responses by respondent type

Type of respondent	Yes	No	Not answered	Total
Community Justice Partnership	1	4		5
Electoral Body or Group			4	4
Legal or Justice Sector Body	1		2	3
Local Authority	4		1	5
Other		3	1	4
Public or Representative Body	1	1	1	3
Religious Body or Group	1	2		3
Third Sector Organisation		7	1	8
Total organisations	8	17	10	35
% of organisations answering	32%	68%
Individuals	63	165	2	230
% of individuals answering	28%	72%
All respondents	71	182	12	265
% of all respondents	27%	69%	5%*
% of all those answering	28%	72%

* Figures do not sum to 100% due to rounding

2.4 Around 3 in 10 (28%) of the respondents to the consultation thought that prisoners' right to vote should be linked to the length of their sentence (option 1).

2.5 A majority of respondents, 72% of those answering the question, did not think that prisoners' right to vote should be linked to the length of their sentence. As covered below, further comments suggest that those who did not think that prisoners' right to vote should be linked to the length of their sentence included both those who thought no prisoners should have the right to vote and those who thought that all prisoners should have the right to vote.

Question 2: If your answer to Question 1 is 'no', what would be your preferred approach to extending prisoners' voting rights?

2.6 A total of 210 respondents made a comment at Question 2^[2]. Most of these respondents (181 respondents) had answered 'no' at Question 1, that is, as per the question, they did not think that prisoners' right to vote should be linked to the length of their sentence^[3]. These respondents often went on to take one of two broad positions^[4]:

• Nobody who is serving a prison sentence should be able to vote. Around 1 in 2 of those who did not think that prisoners' right to vote should be linked to the length of their sentence were of this view. All but one of these respondents (a Religious Body or Group respondent) were individuals.
• All prisoners should have the right to vote. Around 2 in 5 of those who did not think that prisoners' right to vote should be linked to the length of their sentence were of this view. This group of respondents included individual respondents and many of the organisations that had answered 'no' at Question 1.

No extension of voting rights

2.7 The views of those who argued that nobody who is serving a prison sentence should have the right to vote are encapsulated within the comment that:

Prisoners should not have any right to a vote at all. If an individual commits a crime serious enough to warrant a custodial sentence away from society, they should then forfeit certain rights including the right to vote. (Individual respondent)

2.8 Other issues raised, in each case by one or a small number of individual respondents, included that:

• If we deem that someone should not be within open society, they should not be able to influence decisions on how that society operates.
• As is already the case, only those on remand should be allowed to vote.
• Voting rights should be re-established once parole has been granted.

Extension of right to vote to all prisoners

2.9 Other respondents thought that all prisoners should have the right to vote, and that Scotland should legislate to remove the ban on prisoner voting in its entirety. Many of the comments made are summed up by the respondent who expressed an opinion that:

I think all people in custody, regardless of sentence length, should have the right to vote… If Scotland aims to support individuals in custody to lead better lives when they leave prison, then encouraging and supporting people in custody to vote acknowledges that they are still citizens and have the right as a citizen to vote. (Individual respondent)

2.10 A number of respondents who thought that all prisoners should have the right to vote went on to make extensive comments^[5]. These respondents included Third Sector Organisations, Public or Representative Bodies and individual respondents.

2.11 Points made in support of this argument, in each case by one or a small number of respondents, sometimes had a human rights focus:

• The proposed approach is contrary to the advice of the United Nations International Covenant on Civil and Political Rights (ICCPR), Human Rights Committee, which advised that not giving a prisoner the right to vote "amounts to an additional punishment". Specifically, Article 10 paragraph 3 of the ICCPR states that "The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation." In its 2001 review of the UK, the Human Rights Committee (which monitors the implementation of ICCPR) expressed concern that the general deprivation of the right to vote for convicted prisoners did not meet this requirement.
• Judgments of the European Court of Human Rights (ECtHR) in terms of Article 3 of Protocol 1 to the European Convention on Human Rights (ECHR) also support a well-established position that an automatic blanket ban on prisoner voting is a disproportionate measure. Given this context, the Scottish Government's recognition that reform is needed was welcomed.
• All adults having the vote is a human or civic rights issue. In turn, that universal franchise is a measure of the legitimacy and strength of our democracy.
• Irrespective of length of sentence, it was noted that the results of elections can influence matters that affect prisoners or their families and local communities.

2.12 It was also noted that while the ECHR does leave a state a wide margin to determine the proportionate disenfranchisement of prisoners, it defines the floor rather than the ceiling of human rights protection. Given this, it was suggested that general human rights principles and international human rights standards (for example around maximum suffrage, inclusion, proportionality and against arbitrariness) should be at the heart of decisions about which approach would be most proportionate and would best protect and promote human rights.

2.13 There were also suggestions, primarily from organisational respondents, that the proposals do not, but should, reflect the conclusions of the Scottish Parliament Equalities and Human Rights Committee's report on Prisoner Voting in Scotland^[6].

2.14 Other comments addressed the profile of the prison population. It was suggested that the majority of prisoners are vulnerable members of society and that a ban on prisoner voting impacts disproportionately on the most deprived. Further comments included that many people who end up in the criminal justice system have struggled to access education or employment and that there is a disproportionate representation of people in prison with mental health problems, a background of being in care, with addiction problems, or with a background of abuse and neglect.

2.15 A Third Sector Organisation respondent highlighted that, given that women are far more likely to receive a short-term sentence following a non-violent offence, the current law acts as an unnecessary barrier to women's participation in public life.

2.16 There was a view, expressed by a diverse range of types of respondent, that allowing prisoners to vote should help their rehabilitation by making them feel less marginalised and more a part of the community. It was reported that research has shown that reintegration is aided by strong links between prisoners and their local community. On a similar theme, there was a question as to why those in prison for the longest periods of time, and who are therefore most in need of assistance in reintegrating into civic life, should be excluded.

2.17 It was also reported that there is no evidence that restricting the right to vote increases either public protection or community safety or that it prevents or reduces crime. It was also seen as at odds with the aims of Scotland's justice and wider societal system, as reflected in Justice in Scotland: Vision and Priorities, the National Community Justice Strategy, Mental Health Strategy 2017-2027 and more recently Rights, Respect and Recovery: alcohol and drug treatment strategy. Another perspective was that too much emphasis has been placed on the rights of the victims of crime and insufficient emphasis on possible benefits to wider society.

2.18 A small number of primarily individual respondents thought that all prisoners should be able to vote other than under certain circumstances^[7]. The circumstances suggested, in each case by only one or a small number of respondents, were:

• Being a repeat offender, either if the prisoner shows no signs of changing or on reaching more than two sentences of six months or less.
• Dependent upon their behaviour within the prison.
• Having completed a short course on voting rights.

2.19 It was also suggested that those serving community sentences should have restrictions placed on their right to vote.

2.20 Finally, a small number of issues relating to types of offence or sentencing arrangements were raised:

• With specific reference to extending voting rights based on length of sentence, it was argued that length of sentence is not a reliable indicator of the seriousness of offence. It was also suggested that decisions about imprisonment are often not clear-cut, including the divide between the types of offences which attract imprisonment.
• The withholding of any right to vote is arbitrary because its impact depends on a combination of the date of sentencing, how long someone has previously been on remand and the timing of elections, rather than the sentence or offence committed.

Comments about the proposed approach

2.21 There were also a small number of comments from those who had either answered yes, or who had not answered Question 1. They included a view (from a Legal or Justice Sector Body respondent), that while noting the report of the Scottish Parliament Equalities and Human Rights Committee on Prisoner Voting in Scotland, any decisions are ultimately for the Scottish Parliament.

2.22 A Local Authority respondent thought that linking enfranchisement to length of sentence would seem a logical option as the length of sentence imposed is generally a reflection of the seriousness of the case, having regard to all circumstances including the nature of the offence, the circumstances and a person's previous convictions. They also suggested that Option 1 best balances the right to vote for short-term prisoners, the promotion of the rule of law, responsible citizenship, rehabilitation and the perspectives of victims of crime.

2.23 Other issues, raised by a Community Justice Partnership respondent, a Local Authority respondent, a Third Sector Organisation respondent, a Legal or Justice Sector Body respondent and a Public or Representative Body respondent included:

• The distinction between summary and solemn procedures should be recognised^[8].
• There are many incidences of cases being 'kept' and then prosecuted at one time, resulting in consecutive sentences well over 12 months. This may be problematic, as certain individuals would be excessively punished through disenfranchisement for multiple minor offences when a more serious (harmful) offence does not result in disenfranchisement.
• There should also be a mechanism to balance voting rights for prisoners who are initially sentenced below the proposed threshold and those who commit a serious crime but have served a sentence which is subsequently reduced to below any threshold introduced.

Comments on other options

2.24 As noted above, in addition to the Scottish Government's preferred way forward, Option 1, the consultation paper set out three possible alternatives. A small number of respondents who either did not favour Option 1 or who did not answer Question 1 went on to make comments about the other possible options^[9].

Option 2: Disenfranchisement applied as an additional penalty

2.25 This option would empower courts to impose loss of the right to vote as a sentence in itself. This would mean that a judge could impose disenfranchisement at their discretion when sentencing a person convicted of a crime.

2.26 A small number of primarily individual respondents stated a preference for Option 2, either in its own right, or in preference to Option 1 if their preferred alternative (voting for all prisoners) was not pursued. Reasons given in support of Option 2 included that:

• It is individualised and proportionate. Each individual and each case will have its own particular set of circumstances and the judges who preside over the cases would be best placed to take those into account.
• It has been implemented successfully in other countries, such as in France.
• Of the available options, the fairest is basing disenfranchisement on the offence committed. For example, it could be based on removing voting rights for anyone who has committed crimes of dishonesty or fraud at a certain level, or who has attempted to interfere with the machinery of the state.

2.27 Other comments included the rationale behind the use of disenfranchisement would, however, need to be clarified by Parliament or that sentencing judges should receive clear guidance on when this loss of civil rights should be included in the prisoner's sentence. On a connected point, it was suggested that the loss of voting rights should be presumed, with the onus on the accused to plead 'special reasons'.

2.28 It was noted that Option 2 has been opposed by the judiciary because of its subjectivity and a Legal or Justice Sector Body respondent observed some practical implication, including that it would have an impact on the Scottish Courts and Tribunals Service in respect of: court time and relative court programming; associated staff training and accommodation resources; and costs involved in relevant IT changes.

Option 3: An approach based on type of crime

2.29 This option would link the disenfranchisement of convicted prisoners to the type, or severity, of crime committed. With this option, prisoners convicted of crimes deemed to be more serious would lose their right to vote. It would require the offences or broad types of offences which would carry a loss of the right to vote to be specified.

2.30 A small number of individual respondents commented that the right to vote should depend on the crime committed or that only those who have committed the most serious crimes, and particularly those who have harmed another or committed offences relating to voting or political participation, should not be able to vote.

2.31 Other comments about Option 3 included that there is difficulty with adopting any limitation which relies on the 'moral fitness' of individuals or their crimes to be assessed. A Public or Representative Body respondent suggested that, if there is a concern that there are different levels of seriousness within the definition of a specific crime, judicial decision-making on disenfranchisement (as at Option 2 above), could be combined with Parliament identifying the offences for which disenfranchisement could be considered at sentencing.

Option 4: Enfranchisement towards end of sentence

2.32 Option 4 would be to give each prisoner the vote for a specified period before the end of their sentence. A prisoner would lose the right to vote upon being sentenced to time in prison. They would then regain the right to vote upon reaching a point where they had a defined amount of their sentence remaining.

2.33 Only three comments were made, the first being that Option 4 would be the preferred option if all prisoners were not given the vote; the option was seen as aiding reintegration back into society. One suggestion was a hybrid approach based on length of sentence and enfranchisement towards the end of sentence, particularly if one of the aims is reintegration into society in preparation for their full release.

2.34 A Third Sector Organisation respondent noted that, since women are far more likely to receive a short-term sentence, Options 2 and 4 would often have the same impact on women. They went on to comment, however, that Option 4 would offer the additional benefit of recognising upcoming physical re-entry into public life by returning voting rights. They also suggested that complexity and novelty do not offer a valid justification for not pursuing Option 4.

Question 3: If your answer to Question 1 is 'yes', what length of sentence would be appropriate as the eligibility threshold for prisoner voting rights?

2.34 Responses to Question 3 by respondent type are set out in Table 3 below.

Table 3: Question 3 - Responses by respondent type

Type of respondent	6 months or less	12 months or less	Another duration	Not answered	Total
Community Justice Partnership		1	1	3	5
Electoral Body or Group				4	4
Legal or Justice Sector Body			1	2	3
Local Authority		2	2	1	5
Other				4	5
Public or Representative Body		1	1	1	3
Religious Body or Group			1	2	3
Third Sector Organisation		1		7	8
Total organisations		5	6	24	35
% of organisations answering	0%	45%	55%		100%
Individuals	17	24	35	154	230
% of individuals answering	22%	32%	46%		100%
All respondents	17	29	41	178	265
% of all respondents	6%	11%	15%	67%*	100%
% of all those answering	20%	33%	47%		100%

* Figures do not sum to 100% due to rounding

2.35 Most frequently, respondents who thought that length of sentence would be appropriate as the eligibility threshold for prisoner voting rights favoured 'Another duration' (47% of those answering the question). Of the remaining respondents, 33% favoured a threshold of 12 months or less and 20% favoured 6 months or less.

2.36 Organisations were more likely than individuals to favour a threshold of 12 months or less (45% and 32% respectively). There was no support for a threshold of 6 months or less among organisations, although 22% of individual respondents supported this option.

2.37 Although there was no opportunity to comment at Question 3, a small number of respondents made comments elsewhere in their response about the length of sentence options set out at Question 3. (These are over and above those relating to 'Another duration' which are covered at Question 4 below).

Up to 6 months

2.38 The only specific comments made were that:

• If changes need to be made, 6 months would be the preferred threshold given that the sentence length for some serious crimes could fall within the 12-month timeframe.
• Six months or less is too small a step towards meeting the requirements of the ECHR.

Up to 12 months

2.39 A small number of respondents addressed a possible 12-month threshold. Views included that extending voting rights to prisoners serving a sentence up to 12 months is fair and reasonable. An alternative perspective was that the 12-month option offers the best way forward if full franchise is not to be taken forward.

2.40 Reasons for supporting the 12-month timescale given were:

• It would be consistent with the distinction within the Scottish criminal justice system between the sentencing powers of courts of summary jurisdiction and courts of solemn jurisdiction.
• It is in line with the conclusion of the 2013 cross-party joint committee of the UK Houses of Parliament, that all prisoners serving sentences of 12 months or less should be entitled to vote.

2.41 However, it was also suggested that, given the Scottish Government's policy objective to end prison sentences of less than 12 months, the impact of a 12-month or lower threshold would seem to be lessened.

Question 4: If your answer to the above is 'another duration', please specify this here.

2.42 A total of 39 respondents who had selected 'Another duration' at Question 3 went on to make a further comment made a comment at Question 4. Of these, 23 made a specific suggestion for another timescale:^[10s] The suggestions made, in ascending order of length of sentence, are set out in the table below.

2.43 The most frequently suggested timescale was 4 years or less (nine respondents), followed by 2 years or less (five respondents). Six respondents favoured a threshold that was shorter than 3 months.

Table 4: Alternative lengths of sentence suggested as an eligibility threshold

Duration suggested	Individual	Organisation	Total
1 week or less	1		1
1 month or less	2		2
1 - 3 months or less	1		1
3 months or less	2		2
12-18 months or less	1		1
2 years or less	4	1	5
4 years or less	6	3	9
5 years or less	1		1
10 years or less	1		1

2.44 Other timescale-related suggestions were: if the prisoner is expected to be released during the term of the Scottish Parliament or Local Government administration that is being elected (raised by three individual respondents); the last 12 months of a sentence of three years or more (raised by one individual respondent); or when a long-term prisoner is no longer deemed as presenting a risk to the public or when parole has been granted (one organisational respondent).

Reasons for favouring 4 years or less

2.44 A small number of respondents explained why they favoured a threshold of four year or less. Reasons given included that:

• It reflects the length of a Scottish Parliament session. Local Government electoral terms are also, typically, a period of four years.
• It reflects the differentiation between a short- and long-term sentence. It was suggested that the distinction represents an important difference in the treatment of prisoners and would be consistent with the overall structure of the management of offenders in Scotland at the present time.