Since serving a 35 years prison sentence John Hirst has campaigned for prisoners rights and penal reform. Mr Hirst argues here that in the run up to a general election we should be asking “Why should a prisoner (or indeed anyone) seek the permission of the State to legally challenge the State?”
“Mighty oaks from little acorns grow”. The seed for the Prisoners Votes Case (Hirst v UK(No2)) was planted in my head during 1989-1991 whilst I was in the Special Unit at HM Prison Hull. Chapter 8 of Vivien Stern’s Bricks of Shame – Britain’s Prisons is titled “No Votes in Prisons”. The subtitle is “Politics and imprisonment”. In spite of being admonished by a tutor for underlining text and turning down the corners of pages of my books, I note that I have once again ignored this. I continue to study in my way. “There are supposed to be ‘no votes in prisons’ and no political prizes for doing something about them. Any politician brave enough either to tell the truth about them or grasp the nettle and try to change the way they are run is likely, so it is believed, to run into difficulties with public opinion”(Penguin, 1989, p.133).
I recall thinking to myself at the time ‘Yes. Why are there no votes in prison?’. My Asperger Syndrome kicking in, I mistakenly thought it was a reference to there being no votes for prisoners and started conducting some research into the franchise. Later, on reflection, I realised I had misinterpreted what had been written. However, it was too late to go back. Because as Confucius say: “A journey of a thousand miles begins with a single step”. And in spite of my initial confusion, I believed that this was a case I could win, and had already started on my journey of ‘Going to Europe’.
Unfortunately, I had to wait for the law to catch up with me. The sheer frustration when my barrister in some cases, Tim Owen, kept mentioning that the European Convention has not yet been incorporated into English law! I was at that time, at least in the UK, a pioneering, trail-blazing, jailhouselawyer. Labour came into power in 1997 and the Human Rights Bill made its way through Parliament, and then the Human Rights Act 1998 was passed. I only had to wait another 2 years until the Act came into force. I was concerned at the time about the absence of Articles 1 and 13 of the Convention not being incorporated into the Act and into English law, and still concerned to this day. I did not expect to get the ball I had started rolling past the Secretary of State’s goalkeeper in the High Court, because of O’ Reilly v Mackman http://law.hku.hk/hkadmlawsb/admlawcases/OreillyMackman.htm.
Why should a prisoner (or indeed anyone) seek the permission of the State to legally challenge the State? In refusing the application Kennedy LJ, stated that he was deferring to Parliament. In other words, he applied the “hands-off” doctrine. This case needed a hands-on approach. It was simply a matter of declaring that s.3 of the Representation of the People Act 1983 is incompatible with Article 3 of the First Protocol of the Convention and HRA 1998. In my view, if any judge is not prepared to do the job that he/she has been entrusted with then they should, at least, do the honourable thing and step down from the case and/or resign. English law suffers if a judge is allowed to abdicate responsibility. The ECtHR criticised the “reasoning” and decision taken by Kennedy LJ, particularly when relying upon Sauvé v. Canada (No. 1) ( 2 SCR 438), as it had already been overruled by the Canadian Supreme Court in Sauvé (No. 2) ( 2 CF)!
Channel 4 Television News had been following my progress with this case since I won another case relating to prisoners access to the media, and Simon Israel kept it under wraps. He first asked my barrister, Flo Krause, and then me, whether we had won it. Both assured him of the result, and the night before the Grand Chamber read out its judgment in open court Channel 4 News ran with an 11 minute special on the case. It was the first time that both the cameraman and producer got a credit on a news item. The exclusive had the media hounds belatedly following the scent and the next day I was performing for the media circus. BBC1 Look North had whisked me off for another exclusive, I told them that an AP journalist was in court and I was awaiting his confirmation by mobile phone. They got their scoop to go out in time for the One O’ Clock News bulletin on BBC1. The TV presenter said, as the Champagne bottle cork popped, “You’re famous”. I replied, “Infamous, more like. In any event, I have made history”. It was a double whammy!
There’s always one, a party pooper! Charles Falconer, the Lord Chancellor and Secretary of State for Constitutional Affairs, rushed into the BBC World At One studio, with a faxed copy of the 41 page judgment, ink still wet, to announce to the world what the judgment did not say, when he had not even read it to see what the judgment did say! Since then, Jack Straw, Secretary of State for Justice, has been trying to defend the indefensible.
The legal battle has been won. I stare down into the big hole and wonder ‘When is Jack Straw going to stop digging?’. This cannot be a hollow victory. The political battle is still raging. “It is no accident that the most crucial question raised by lawyers at a 1971 Prisoners’ Rights Conference ‘How does one get a court decision implemented?’ remained unanswered” (Mike Fitzgerald, Prisoners in Revolt, Penguin 1977, p.225). Perhaps, the students reading this can answer the question, particularly in relation to the Prisoners Votes Case? Even though it never has been a qualification for the franchise, the government has claimed that by committing their crimes and being imprisoned convicted prisoners have lost the moral authority to vote. When the MPs expenses scandal broke the former Archbishop of Canterbury, Lord Carey, opined that Parliament has lost the moral authority to govern.
‘Should convicted prisoners be allowed the vote?’ is not a debating issue because the pros are for it, and the cons are for it too! Seriously, it beggars belief in a so-called liberal democracy that an issue as important as depriving a large section of the public was not first debated in Parliament before the law was passed for a blanket ban. MPs believe that if they vote for prisoners to have the franchise that they will lose votes themselves. Vivien Stern went onto to say that MPs were wrong about public opinion. The results of the first consultation exercise showed that 47% favoured the full franchise, whereas only 4 people supported the government’s view for a limited franchise. Convicted prisoners do not live in a democracy. And neither does Joe and Joanna Public outside of prison, because MPs are too busy knee-jerking to The Sun and Daily Mail headlines and editorials to bother what public opinion says. In any event, the Court stated: “There is, therefore, no question that a prisoner forfeits his convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion”.
The UK signed up to: “The decision of the Court is final”. Upon what lawful authority does the losing party to an action usurp this jurisdiction? Every revolution in history started in prison. We are on the verge of a constitutional crisis. Who amongst you will speak out to avert this happening?