Local government – Penology and criminology – Declarations of incompatibility

Peter Chester v (1) Secretary of State for Justice (2) Wakefield Metropolitan District Council: CA (Civ Div) (Lord Neuberger (MR), Lords Justices Laws, Carnwath): 17 December 2010

The appellant prisoner (C) appealed against a decision ([2009] EWHC 2923 (Admin)) dismissing his claim for judicial review, which had challenged his statutory disfranchisement from voting in domestic and European parliamentary elections.

C had been sentenced to life imprisonment for rape and murder. The ‘minimum term’ that he was required to serve had expired. Nevertheless, a parole board determined that he was too dangerous to release and continued to detain him. As a consequence, C was informed that he could not be registered to vote in any elections in the UK. Following a decision of the European Court of Human Rights in Hirst v United Kingdom (74025/01) [2006] 42 EHRR 41 ECHR (Grand Chamber), the Ministry of Justice conceded that a blanket or absolute prohibition against prisoners voting was incompatible with article 3 of protocol 1 to the European Convention on Human Rights 1950 but could not, in the event, confirm any timescale within which legislative amendments to the provisions of section 3 of the Representation of the People Act 1983 in respect of UK elections, and section 8 of the European parliamentary elections Act 2002 in respect of European parliamentary elections, would be sought. Consequently, C brought judicial review proceedings, seeking a declaration of incompatibility, pursuant to section 4 of the Human Rights Act 1998, in respect of section 3 of the 1983 act and a favourable interpretation of section 8 of the 2002 act. Following the refusal of C’s judicial review claim, the European Court of Human rights promulgated two further decisions concerning the rights of prisoners under article 3 of the Convention: Frodl v Austria (application no: 20201/04) and Greens and MT v UK (application no: 60041/08 and 60054/08). C submitted that the court should mediate the recent decisions of the European Court of Human Rights so as to indicate to the government what should be the essential content of the future legislation and, in doing so, make it clear that the disfranchisement of a prisoner could lawfully be effected only by the discretionary decision of a judge. The secretary of state contended that it would be constitutionally inappropriate for the court to grant relief or express a concluded view as to the effect of the decision in Frodl: the legislature should be left free to select what measures should be established in the law of the UK to reflect the Strasbourg jurisprudence and to settle domestic policy in this sensitive area.

Held: What C sought was, in effect, an advisory opinion as to the legally proper content of forthcoming legislation. While there was possible utility in the exercise of such a jurisdiction in very carefully controlled circumstances, the instant case did not constitute such a circumstance. The nature and scope of the amendment and replacement of the relevant legislative provisions was likely to be acutely controversial and remained a political responsibility. The law, as it stood, meant that a blanket ban was impermissible and that there had to be a discernible link between the sanction, and the conduct and circumstances of the individual concerned, Hirst applied, Frodl and Greens and MT considered. No doubt the government would consider carefully whether compliance with those standards required a decision-making role in specific cases to be accorded to the judiciary (see paragraphs 30-35 of judgment).

Appeal dismissed.

Hugh Southey QC (instructed by Chivers) for the appellant; James Eadie QC, Jason Coppel (instructed by Treasury Solicitor) for the respondent.