Which Prisoners Can Vote on December 12th?

December’s General Election will be the first since the UK settled the prisoner voting cases in the European Court of Human Rights. In the Hirst group of cases, the Court found that the blanket, automatic restriction on all convicted prisoners voting in parliamentary elections violated Article 3 of Protocol No. 1 to the European Convention on Human Rights which requires that elections ensure the free expression of the opinion of the electorate in the choice of the legislature. After years of toing and froing, in November 2017 then Justice Secretary David Lidington somehow managed to satisfy the Council of Europe that some very minimal administrative reforms brought the UK into compliance. So where do these leave prisoners’ rights to vote next month?

As before the Hirst cases, remand prisoners (both untried and convicted but unsentenced) will be eligible to vote- there were 9,512 at the end of September 2019. So too will those subject to suspended sentences of imprisonment (about 40,000), prisoners released under Home Detention Curfew (2,809 at the end of last week) and civil non-criminal prisoners detained for matters such as non-payment of council tax or contempt of court. There were 850 non- criminal prisoners at the end of September, but the figure includes people held under the Immigration Act who do not qualify to vote.  The 50 odd fine defaulters in jail are also be able to vote if they wish.

The new group of prisoners who are eligible to vote following the Hirst settlement are those on temporary release from prison- so called ROTL.  Lidington told the Commons in November 2017 that he expected the change to affect up to 100 offenders at any one time, but the basis of the estimate is not clear. In the fourth quarter of 2018, there were almost 99,000 “incidences” of release on temporary licence- involving 4,283 individuals.  On the face of it Lidington’s, estimate looks on the low side.

So will all prisoners subject to ROTL on 12 December be able to vote? To do so they will of course have to register by 26th November. Lidington told MPs that any prisoner wishing to vote would have to satisfy the conditions for registration at a genuine home address. He said that they would not be able to register at the prison and seems to have ruled out registration in a constituency where the prisoners has lived previously, following a “declaration of local connection”. These two modes were available to prisoners eligible to vote pre-Hirst but appear not to be for the ROTL prisoners. Lidington told a fellow Tory MP that he thought it unlikely in the extreme that anybody serving a long sentence could demonstrate in practical terms that they had a continuing home residence other than a prison.

This may explain why the number of prisoners on ROTL who will be able to vote is estimated to be so small. It explains too the puzzling claim in the Government’s report to the Council of Europe that the prisoners who will be eligible “are primarily, as in other countries, prisoners who are serving short sentences”.  ROTL is mainly used in Open Prisons where 80% or more of prisoners are serving sentences of more than 4 years. On the face of it, it’s only a very rare bird- a short term prisoner on ROTL -who will in practice be able to vote thanks to the Hirst judgement.  

Guidance was sent to Prison Governors last year about the new arrangements – which I have not seen so I may have misunderstood what has happened. It's quite possible that once MPs had been placated, a more sensible set of arrangements have been put in place under the radar. But there seems to be no revision to the Prison Service Order on Prisoner Voting Rights. In the absence of proper scrutiny of the new system, the suspicion must be that the government can say that their policy is that those on ROTL will no longer be barred from voting while implementing it in a way that continues a de facto ban. Expect another case in the European Court before too long.

Tagging Along

Boris Johnson’s efforts to increase prison time served by serious sexual and violent offenders by way of a Statutory Instrument were stymied by the House of Lords. Before the election was called, the Lords Secondary Legislation Scrutiny Committee also put paid to the other proposal to emerge from the so-called Sentencing Review- the national rollout of the Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag. This requires an offender to abstain from alcohol for up to 120 days with compliance electronically monitored. The tag worn on the ankle takes a sample of sweat every 30 minutes which is analysed for the presence of alcohol. First piloted in London when  Johnson was Mayor, both the PM and his erstwhile advisers now in No 10 are enthusiastic about it.

Back in 2015 the Conservative manifesto pledged to make Sobriety Orders, reinforced by tags available to all courts in England and Wales- but it didn’t happen (and the policy was not mentioned in the 2017 manifesto). It was not until The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019 was laid before Parliament last month that the government has sought to enable the Sobriety Tags to be imposed as part of a requirement of a community order or a suspended sentence order throughout the country.   

As with the Statutory Instrument which would have increased the proportion of time served by prisoners convicted of serious crime, the Lords Committee raised concerns. Being asked to approve the programme on the basis of very limited information was “unacceptable”; it was “interesting”, but rollout was “premature”.   The Committee recommended that the House press the Minister for more detail on all aspects of the plans for rollout and anticipated long-term outcomes. There was no time to do this before Parliament was dissolved so the law hasn’t changed.  

The 2012 Act provided that  national implementation could only happen after piloting and the Government claimed that two pilots had proved sobriety tags a success. A process and performance review of the scheme across the capital – one of four published evaluations – has reported on more than 1,000 AAMRs imposed between April 2016 and March 2018. There was a compliance rate of 94% with the tag- although compliance with the overall order of which the tag was a part was lower- a distinction about which the Lords Committee wanted clarification. More significantly, there is no data about re-offending with an analysis from the Mayor’s office almost a year late.  

The evaluation of the other pilot in Humberside, Lincolnshire and North Yorkshire is not due to be completed until February 2020. Despite this, the MoJ considers that it now has the information necessary to fully commence the legislation and roll out AAMR across England and Wales. Their Lordships disagreed.

It’s certain that sobriety tags will figure in the Conservative manifesto, alongside perhaps  the promises of swift and certain punishment or flash incarceration made before . Whether they come to anything is of course another matter.    

The Lords of Mercy

What happened to the Government’s plans to increase the time in prison served by serious offenders? On 1st October, Justice Secretary Robert Buckland told the Tory Conference that for the most serious violent and sexual offenders … this Conservative Government will abolish automatic early release at the halfway point”. Two weeks later the Queen’s Speech duly announced a Sentencing Bill which would change the automatic release point from halfway to the two-thirds point for adult offenders serving sentences of four years or more for serious violent or sexual offences, bringing this in line with the earliest release point for those considered to be dangerous. The Bill of course got nowhere before the election was called. 

But on the same day as the Queen's speech, Buckland tabled in Parliament the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019. This Statutory Instrument (SI) would have brought the same change into force from April 2020- much sooner than primary legislation would have allowed- but for prisoners sentenced to seven years or more, rather than four. Buckland explained the different thresholds to the Justice Committee on 16 October in terms of “trying to make sure that we create a system that is supported by the resources I need”.  

Whatever length of sentence qualifies for the more restrictive arrangements, it’s surprising that secondary legislation can be used to introduce a measure which would so substantially increase levels of punishment, requiring 2,000 new prison places by 2030. But that’s what the Criminal Justice Act 2003 permits. At least the SI had to be laid under the affirmative procedure which means it must be actively approved by both Houses of Parliament.

The Commons Joint Committee on Statutory Instruments raised no concerns about it on 23 October but the following week the House of Lords Secondary Legislation Scrutiny Committee were less sanguine, drawing it to the special attention of the House “on the ground that it gives rise to issues of public policy likely to be of interest” to it.

In particular, the Committee took the view that the Order “represents one piece of a large and complicated jigsaw and the House may wish to ask the Minister for more information about how the pieces fit together. In particular the House may wish to seek reassurance from the Minister that adequate resources will be available in good time to meet this expanded remit, both in relation to prison accommodation and prison service staff”. The dissolution of parliament meant there was no time for such reassurance to be sought so the law has not been changed.

Should the Conservatives form the next government, the policy will presumably return whether through primary or secondary legislation. Before it does, the Ministry of Justice should take a step back and conduct a proper review of sentencing unlike this summer’s charade.

The MoJ redeemed itself a bit by preparing a detailed impact assessment about the longer periods of imprisonment. These highlighted not only the financial costs of the policy but the possible effects on prisoners and their families, on stability in prisons and on the lengths of sentences imposed by courts. In the light of these broader concerns, the House of Lords declined to be steamrollered in the way that Mr Buckland presumably hoped. It performed a valuable service.