Prisoner voting: consultation

Options for Scottish Parliament and Scottish Local Government Elections

As set out above, the Scottish Parliament gained new powers over elections as a result of the Scotland Act 2016. Consideration must now be given as to how to comply with the ECHR in relation to prisoner voting.

There are various factors, including the rehabilitation of prisoners, which the Scottish Government has considered when determining a suitable, ECHR-compliant approach to prisoner voting.

The starting point, as indicated by the ECtHR caselaw, is the principle of universal suffrage. While certain Convention rights cannot be restricted by the state (for example, the Article 2 right to life and the Article 3 prohibition on torture) there are some Convention rights that can be restricted in prison (for example the Article 5 right to liberty and the Article 8 right to private and family life).The ECtHR caselaw makes clear that the franchise of prisoners may also be restricted, provided that the restriction is proportionate to a legitimate aim. Legitimate aims include sanctioning the conduct of convicted prisoners and enhancing civic responsibility and respect for the rule of law.

As noted previously, the Scottish Government considers it to be neither appropriate, nor necessary to ensure compliance with the ECHR, to extend the right to vote to all prisoners. The length of the sentence given to the prisoner is an indication of the seriousness of the case. While those sentencing take into account various considerations, the more grave offences typically attract longer sentences, and other factors – such as the record of the accused – which are relevant on sentencing may also be regarded as relevant to an assessment of the seriousness of the case.

The ECtHR in Hirst (No 2) emphasised the wide margin of appreciation given to member states in terms of developing a compliant solution on prisoner voting. This reflects the wide variety of approaches on prisoner voting across Council of Europe member states.

The following section of the consultation paper explores the different options available, and sets out factors to consider in the Scottish context. The Scottish Government has considered the scope of Article 3 of Protocol 1 and its different application to Scottish Parliament and Local Government electoral franchises. Currently, these franchises are linked and it is intended that the proposal which will ultimately be adopted following this consultation will apply to both Scottish Parliament and Local Government elections.

In broad terms, the options are:

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

A fuller summary of the options is provided below. Having carefully considered the requirements of the ECHR, the Equalities and Human Rights Committee's report and international practice, the favoured approach is to enfranchise only those prisoners serving a sentence of imprisonment for a length of time which is under a defined threshold. This proposal seeks to strike an appropriate balance, taking into account the nature, gravity and circumstances of the offending.

In all of these options prisoners would be registered to vote in a home constituency or ward, not at the address of the prison.

Option 1: Enfranchisement based on Length of Sentence

The Scottish Government's favoured option is to remove the right to vote only from prisoners who have been sentenced to a longer sentence of imprisonment. Views are sought on the threshold length of sentence, below which prisoners should be entitled to vote. Although sentencing judges take various factors into account, the length of the sentence imposed is, generally speaking, a reflection of the seriousness of the case – having regard to all the circumstances, including the nature of the offence, the circumstances in which it was committed, and the offender's previous criminal record. Accordingly, this approach strikes an appropriate balance between removing the right to vote only where the circumstances are serious enough to justify such a longer sentence^[9] and the promotion of the rule of law and responsible citizenship, as well as wider objectives of the rehabilitation and reintegration of prisoners in order to reduce reoffending.

This approach would ensure that there is no longer a blanket restriction on voting in devolved elections for all prisoners in Scotland, irrespective of the length of their sentence or the nature, gravity and circumstances of their offence. Such a blanket restriction was central to the ECtHR's finding of a disproportionate interference with Article 3 of Protocol 1 in the case of Hirst (No 2).

It is an approach which is implemented among other member states of the Council of Europe. An approach based on sentence length is used in Austria, Belgium, Greece, Italy, Luxembourg, Romania, Slovenia and Turkey. A cut-off of 12 months is used in Malta where most prisoners lose their right to vote (for the duration of their sentence) except those serving a sentence of 12 months or less or those serving a sentence as a result of their failure to pay a fine.

Relying on the length of sentence in this way would be consistent with approaches elsewhere in the justice system. For example, depending on the length of sentence received, different rules apply in terms of disclosure of previous convictions. The longer the custodial sentence received, the longer an individual is required to disclose the conviction when, say, applying for a job or seeking home insurance. Similarly, different rules apply on the eligibility of prisoners for parole or HDC depending on the length of sentence received.

Sentences of determinate length in Scotland are split into two categories: short-term sentences which are for less than four years and long-term sentences which are for four years or more. A short-term prisoner is automatically released from prison into the community after serving half of their sentence.

A long-term prisoner sentenced prior to February 2016 will be released automatically on licence at the two-thirds stage of their sentence but can be released from the halfway stage on Parole Board recommendation. A long-term prisoner sentenced after February 2016 can be released from the halfway stage of their sentence on Parole Board recommendation which failing, they will be released automatically for the final 6 months of their sentence.

Under section 27(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, consecutive or concurrent terms of imprisonment are to be treated, for the purposes of Part 1 of the 1993 Act, as a single term. For example, if the eligibility threshold for prisoner voting is set at 12 months and an offender receives a 6 month sentence, that prisoner would be eligible to vote. If that prisoner receives an additional 7 month sentence for another offence and that sentence is to be served consecutively to the previous sentence, that prisoner will be serving a single-term of 13 months which will take them past the prisoner voting threshold.

Fixing the threshold at 12 months or less 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. A court of summary jurisdiction (which may comprise a sheriff, a summary sheriff or a justice(s) of the peace sitting alone without a jury) deals with less serious offending. On summary complaint, a sheriff can impose a sentence of imprisonment up to 12 months or a fine up to £10,000. In solemn proceedings, a sheriff can impose a sentence of imprisonment up to 5 years or an unlimited fine while there are no limits on the length of prison sentence or fine which can be imposed by the High Court. As can be expected, solemn courts deal with the most serious cases. The proposal would be consistent with what was proposed by the UK Parliament Joint Committee in the Voting Eligibility (Prisoners) Draft Bill in 2013.

It should be noted, however, that a prisoner serving a sentence of 12 months or more could be serving several shorter sentences imposed on summary conviction (which have been single-termed under section 27(5) of the 1993 Act) rather than one sentence imposed following conviction on indictment.

Option 2: Disenfranchisement applied as an additional penalty

Another option would be to empower courts to impose the 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.

This method is intended to be more precise than others. In theory, by leaving the decision on disenfranchisement to the sentencing judge, it can be more precisely applied. This is because the judge will be in full possession of the facts of a case, and so able to fit the punishment (i.e. disenfranchisement) to the crime more accurately.

This approach has been adopted by several Council of Europe member states. In France, for example, the removal of the right to vote is an additional penalty that judges can apply at their discretion for a certain period of time. It is also a mandatory part of the sentence for certain serious crimes. However, even where it is a mandatory part of the sentence, judges can choose to not apply this penalty if they feel that it would not be appropriate in a particular case.

However, this approach has been criticised by the Scottish judiciary. In a letter to the Scottish Parliament's Equalities and Human Rights Committee^[10], provided as part of their investigation on prisoner voting, Lord Carloway, the Lord President of the Court of Session, said:
"I have consulted the senior judiciary (the High court judges). All are opposed to such a course of action."

Lord Carloway stressed that, after "due democratic consultation", the key principles of the prisoner voting issue should be decided by Parliament and not be left to be developed on a case by case basis by individual judges.

The Scottish Government is persuaded by the arguments put forward by the Lord President and so does not favour this option.

Option 3: An approach based on type of crime

A further option would be to 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. An approach based on the type of crime rather than length of sentence would require to specify the offences or broad types of offences which would carry a loss of the right to vote.

This approach to the issue aims to make the punishment proportionate. Disenfranchisement is a serious penalty; it should be applied to people convicted of serious crimes. Another approach taken by some countries has been to tie disenfranchisement to crimes against the state or electoral system. In Italy, certain specified crimes attract disenfranchisement, all related to dishonesty. These cover various abuses of public office and crimes of dishonesty committed while exercising a public office.

A number of Council of Europe states have taken this path. In Germany, for example, prisoners that have committed crimes targeting the 'integrity of the state' or the 'constitutional protected democratic order', such as political insurgents, lose their right to vote. This disenfranchisement continues until the full sentence has been served. However, many states that take this approach limit disenfranchisement linked to specific offences to a small number of crimes.

A clear disadvantage of this option is that there are different levels of seriousness within the definition of a specific crime. For example, defrauding a pensioner of their life savings might be viewed more seriously than defrauding a business of a few thousand pounds. Indeed, a key factor in determining the seriousness of a particular crime is reflected by the length of sentence imposed by the Court.

It should also be noted that the Representation of the People Act 1983 already makes provision for a person found guilty by an election court of "corrupt or illegal practices" at an election to be barred from:

• Registering to vote or voting.
• Being elected to Parliament.
• Holding any elective office.

This is temporary, and can last for either 3 or 5 years. As these provisions reflect a specific punishment which is directly linked to electoral offences, we propose that these provisions are retained as they apply to devolved elections.

Option 4: Enfranchisement towards end of sentence

Another possibility 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. The period before the end of sentence during which a prisoner would regain the right to vote would need to be determined by the Scottish Parliament.

This approach aims to aid the rehabilitation of convicted prisoners by allowing them to be reintegrated into society as preparation for their full release. The object would be to demonstrate to prisoners that they still have a stake in the society to which they will soon return, encouraging a greater sense of social responsibility. However, this approach would enfranchise people who have committed serious offences whilst they are still serving their sentence which may cause understandable distress to the victims of crime.

None of the other member states of the Council of Europe have adopted this approach.

In addition, the complex nature of sentencing and prisoner release arrangements would mean that this approach would be difficult to implement.