Margin of Error: Government Proposals on Prisoner Voting Are Not Good Enough

So the Government may finally allow convicted prisoners to vote in elections albeit in very limited circumstances. It’s not clear from the reports the categories for whom the current ban will be lifted. Will it be those serving sentences of less than 12 months who happen to be outside prison on day release on the date an election happens to fall? Or will a more proactive scheme be introduced for enabling those short term prisoners who would be eligible for so called Release on Temporary Licence (ROTL) either to go out to a polling station or cast a vote in jail?  We’ll have to wait for the eventual proposal but either way it’s a tiny number who will be enfranchised. The leaked Government paper talks of hundreds (out of 86,000 prisoners) but it could be tens. Day release is seldom used for the 6,000 odd short term prisoners as things stand.

The idea presumably is to make a change significant enough to satisfy the European Court of Human Rights that their rulings in the Hirst case have been complied with; but so insignificant that Parliament and the public can swallow it, without in the case of the former Prime Minister regurgitating.

Will the strategy work? Dominic Raab, now a Justice Minister, thought six years ago that “giving the vote to prisoners sentenced to six months or less or a year or less is not a compromise, because it is bound to be rejected by Strasbourg”. The apparently narrower offer now on the table – a sub-group of short sentenced prisoners- could presumably be thought more likely to fall outside the margin of appreciation allowed by the Court. But since 2011, the ECtHR has bent over backwards for the UK. It refused to allow prisoners to be compensated for their inability to vote in spite of its ruling that the blanket ban was unlawful. In controversial decisions too, it decided that the regime for whole life tariffs in England and Wales is compatible with the ECHR although in truth the scope for review and prospect for release in such cases are so limited that it is hard to see how the sentence is reducible or  gives a genuine right to hope.  The ECtHR also allowed extradition to a US Supermax prison described by a former warden as “a clean version of hell”. For what it’s worth I reckon that the court will be content with at least some move towards compliance, however token.

What about domestic reaction? In 2011 an overwhelming majority of MPs the supported the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand. Those who voted for the status quo included Raab and his current colleagues in the MoJ Phillip Lee and Prisons Minister Sam Gyimah. The current Home Secretary and Solicitor General backed the motion put forward by David Davis and Jack Straw as did three other current Cabinet Ministers. If the new line is agreed by Government they would need to support it or resign. One of them, now culture minister Karen Bradley told parliament that she “was elected to be the voice of my constituents in this place, and many of them have contacted me to express their concern about the matter. They are firmly, to a man and a woman, against any move to give votes to prisoners, and I am wholeheartedly in agreement with them”.

While many Labour members voted to keep the ban, Jeremy Corbyn was a teller for the noes. His argument in the debate is surely the right one. “If we as a country are signed up to the European convention on human rights, ...and if the Court makes a judgment on the question of prisoners' voting rights within that convention, we are bound by that judgment, by treaty and by law”. 

The Government should legislate for a much more generous arrangement on prisoner voting than the pitiable offer  doing the rounds in Whitehall and bring to an end a  shameful episode for the rule of law. 

A Matter of Judgement

Earlier this week, Labour peer Lord Adonis shifted his fire from university bosses to judges. Both are often considered (and consider themselves) to be world class; but Adonis tried to use the large increase in the prison population since the 1990’s to claim that the judiciary were far from that. In a series of provocative tweets, he accused them of sins of commission – pushing up the going rate for offences - and omission- failing to stand up to illiberal government criminal justice proposals and the punitive tabloids.

Various legal tweeters rushed to the judges’ defence pointing out that it was New Labour’s criminal justice legislation which had driven up prison numbers while judges simply and faithfully applied the law as they must. As often on twitter, an interesting debate quickly descended into ridicule and abuse, albeit modest by the standards that prevail. I even got caught up in it myself. Having suggested to Adonis that the Sentencing Council – whose president and chair are senior judges-could have done more to limit prison growth since 2010, I retweeted his take that the Council “has followed the Daily Mail out of fear”. I was told by an Oxford academic that my retweet was fostering misunderstanding and I had an obligation to make clear that Adonis’s juvenile view was manifestly wrong.

Adonis may have been unfair on the Council, although it is arguable that of the matters to which they must have regard when producing guidelines, more attention has been paid to the need to promote public confidence than to the costs and effectiveness of sentences. Indeed I have argued this in a report for Transform Justice. But leaving to one side Adonis's combative and somewhat disdainful approach, what of his wider point. How culpable have the judiciary been in the matter of the spiralling prison population in England and Wales?

Mike Hough and colleagues’ detailed study of the 71% rise in the adult prison population from 36,000 in 1991 to 62,000 in 2003 found that tougher sentencing - longer prison sentences for serious crimes and more short prison sentences instead of community penalties -came about through the interplay of an increasingly punitive climate of political and media debate about punishment; legislative changes and new guideline judgements; and sentencers’ perceptions of changes in patterns of offending. So everyone’s to blame.

The study found that statistics did not lend support to sentencers’ beliefs that offenders were becoming more persistent, and committing more serious crimes, although more research was needed about that. Sentencers told researchers that they could resist pressures to ‘get tough’ from the media and the public, but at the same time, “they feel they have a duty to ensure their sentencing decisions reflect and reinforce the norms of wider society.”  It’s not clear where they learn about those norms but the study does not wholly vindicate the legal tweeters who held the judges wholly blameless for booming prison numbers.

Since 2003, it’s Adonis’s former colleagues in the Blair government who have a good deal to answer for.  David Blunkett’s monstrous IPP sentence was used far more than anticipated and new minimum tariffs for murder cases have hauled up the going rate for less lethal crimes of violence. While no doubt it’s the legislature in the dock for these prison boosting measures, could – and should- judges have done more to mitigate their baleful impact through more creative interpretation of the statutory provisions?  Discuss.

One lesson from all this is that Twitter is unlikely to be the best forum for resolving complex legal and constitutional problems. Another is that there’s something of a two nations divide between lawyers and the rest of us. Some in the legal profession, by no means all, seem disproportionately  touchy about criticism from outsiders. Those congratulating each other that their tweets had successfully “schooled” Adonis on his apparently uninformed barbs about the judiciary will I hope  be prepared to engage with the bigger questions he raises.  A proper debate about the roles and responsibilities of the legislature and judges in sentencing policy is long overdue.