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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 73
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P694/07
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OPINION OF LORD
MALCOLM
in the petition of
D.B.
Petitioner:
for
Judicial Review of
the decision taken by the Scottish Ministers on 27 February 2007 to revoke the petitioner's licence
and to recall the petitioner to custody
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Carmichael, Barne; Balfour & Manson (for Taylor &
Kelly, Coatbridge)
Scottish Ministers: Cullen Q.C.; R Henderson
Advocate General for Scotland: Moynihan, Q.C.; H Macdiarmid
4 April 2007
[1] This
application for judicial review concerns a challenge to the lawfulness of a
decision of the Scottish Ministers (the respondents) dated 27 February
2007 made under section 17(1)(a)(ii) of the Prisoners and Criminal Proceedings
(Scotland) Act 1993 ("the 1993 Act") to revoke the petitioner's release on
licence and recall him to prison. On 24 January 2003 the petitioner pled
guilty to a contravention of section 4(3)(b) of the Misuse
of Drugs Act 1971 ("the 1971 Act"), namely being concerned in the supply of
cocaine. He was sentenced to six and a
half years imprisonment. The petitioner
had been sentenced to four years imprisonment for a similar offence in July
1997. Following a recommendation by the
Parole Board for Scotland,
the petitioner was released on licence on 19 May 2006 under section 1(3) of the 1993
Act. It was a condition of the licence
that he "be of good behaviour and .... keep the peace." In
February 2007 the petitioner appeared in Aberdeen Sheriff Court on a petition
specifying two charges of contravention of section 4(3)(b) of the 1971 Act,
involving cocaine and diamorphine with a high street value. The allegations related to the period when
the petitioner was on licence.
Exercising their powers under section 17 of the 1993 Act the respondents
considered that the petitioner presented an unacceptable risk to the safety of
the public and that it was expedient in the public interest that his licence
should be revoked in order that he be returned to
prison to complete the sentence imposed in 2003. As a result bail was not opposed in respect
of the new charges. In terms of section
17(3) of the 1993 Act the respondents have referred the matter to the Parole
Board for Scotland
in order that the Board can consider whether or not to direct the respondents
to re-release the petitioner on licence.
If the Board issues such a direction the respondents must release the
petitioner. However, the Board's main
concern is public safety, and there must be considerable doubt as to the
petitioner's prospects for re-release.
[2] In
these circumstances the issue concerning the lawfulness of the revocation of
the petitioner's licence arises in this way.
Section 3(1) of the Representation of the People Act 1983, as amended,
("the 1983 Act") provides:
"A convicted
person during the time he is detained in a penal institution in pursuance of
his sentence.... is legally incapable of voting at any parliamentary or local
government elections."
The petitioner is registered to
vote, and if at liberty on 3 May
2007 he would be free to participate in the elections to the
Scottish Parliament to be held on that day.
Following on the decision in Hirst
v UK (No. 2) (2005) 42 EHRR 41, the
Registration Appeal Court in Smith v Scott 2007 SLT 137 declared that section
3(1) of the 1983 Act is incompatible with article 3 of the first protocol to
the European Convention on Human Rights (the Convention), which provides:
"The high
contracting parties undertake to hold free elections at reasonable intervals by
secret ballot, under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature."
In Hirst it was decided that article 3 of the first protocol
guarantees individual rights, including the right to vote. Universal suffrage is the basic
principle. Prisoners do not
automatically forfeit their right to vote, and any restrictions applied to them
in pursuit of a state's margin of appreciation must be proportionate and
justified by a discernible and sufficient link between the sanction and the
conduct and circumstances of the individual concerned. However section 3(1) of the 1983 Act imposes
a blanket restriction which applies automatically to all prisoners,
irrespective of the length of their sentence and irrespective of the nature or
gravity of their offence and their individual circumstances, and thus falls
outside any acceptable margin of appreciation.
In Smith the Registration
Appeal Court decided that section 3(1) could not
be "read down" in a manner which would remove the incompatibility identified by
the Strasbourg court. While the UK Government is taking steps
to introduce a Convention compliant alteration to the law, this process will
take some time to complete. In the
meantime the Registration Appeal Court
observed that it is apparent "that the Scottish parliamentary elections in May
2007 will take place in a manner which is not Convention compliant." In these circumstances it was considered
appropriate to declare the incompatibility between section 3(1) of the 1983 Act
and article 3 of the first protocol to the Convention.
[3] Unless
the petitioner is released before then, the revocation of his licence will result
in him being disenfranchised on 3 May
2007 by virtue of the operation of section 3(1) of the 1983 Act, a
provision which has been declared to be incompatible with a Convention right. The petitioner contends that this is
sufficient to render unlawful the respondents' exercise of their powers under
section 17 of the 1993 Act. It is said
that this flows from the terms of section 57(2) of the Scotland Act 1998
("the Scotland Act")
which, so far as relevant, provides:
"Any member of
the Scottish Executive has no power.... to do any ... act, so far as the ... act is
incompatible with any of the Convention rights...."
A first hearing took place on 3 and
4 April 2007. The petitioner and the respondents were
represented by counsel, as was the Advocate General for Scotland,
who has intervened in the proceedings.
At the conclusion of the hearing I refused the petition on the ground
that the revocation of the petitioner's licence was lawful. In this opinion I give my reasons for that
decision.
[4] For
the petitioner Miss Carmichael's submission was straightforward. The consequence of the revocation of the
petitioner's licence is that he is once again subject to disenfranchisement on
the basis of legislation which infringes his rights under article 3 of the
first protocol. It follows that the revocation
is incompatible with the Convention and thus, standing the terms of section
57(2) of the Scotland Act, it falls outside the powers of the respondents. The revocation is null, void and of no lawful
effect. She sought declarator, reduction
of the revocation, and liberation of the petitioner. There is an attractive simplicity and
apparent logic to Miss Carmichael's submission, but, as explained below, I am
satisfied that it is wrong. For the
respondents Mr Cullen, Q.C. submitted that the revocation was a link in the
chain of events leading to the petitioner's disenfranchisement, but it did not
follow that it was an act incompatible with the Convention rights granted in article
3 of the first protocol. The act of
revocation engaged only articles 5 and 8 of the Convention. Any connection between the revocation of the
petitioner's licence and the infringement of article 3 of the first protocol is
too tenuous. Relying on a recent
decision in Northern Ireland,
which I mention below, Mr Cullen submitted that
the "real mischief" is the 1983 Act, which is an Act of the UK Parliament. Both he and Mr Moynihan, Q.C. for the
Advocate General for Scotland
emphasised that the franchise is a reserved matter in terms of schedule 5 to
the Scotland Act. Mr Cullen
stressed the unacceptable consequences of releasing the petitioner. He conceded that if the revocation is
incompatible with a Convention Right, it would be unlawful and fall to be
reduced. However, the public safety
reasons for the revocation should be weighed in the balance when determining
whether there is any incompatibility. At
the very least the Parole Board procedures should be allowed to run their
course. In judicial review the Court has
a wide discretion as to remedy, and, on any view, open-ended liberation is an
excessive request. Mr Moynihan
suggested that the petition is unusual in involving the interaction of devolved
and reserved powers. He described it as
an ingenious attempt to circumvent section 4(6) of the Human Rights Act 1998
(HRA) which operates to preserve the sovereignty of the Westminster Parliament and
maintains in force section 3(1) of the 1983 Act, notwithstanding the rulings in
Hirst and Smith. There is no good
reason why the petitioner should be excluded from the ban on voting which, pending
the current procedures to amend it, continues to apply
to the prison population. The
petitioner's position would have the absurd result that the Scottish Ministers'
hands would be tied whatever the dangers of leaving a convicted person at
liberty on licence. Both Mr Cullen and Mr
Moynihan observed, and Miss Carmichael agreed, that serious questions
would arise as to the power of a court to impose a discretionary sentence of
imprisonment. Counsel referred to various
authorities, most of which are mentioned in the discussion below. Neither Mr Cullen nor Mr Moynihan moved
their pleas to the competency. They both
asked me to refuse the petitions on the basis that the revocation of the
licence was lawful.
[5] The
key question is whether the revocation was an act incompatible with article 3
of the first protocol. While there has
been much discussion in the cases as to what is meant by "incompatible" in this
context, I suspect that few, if any, relate to circumstances where there is
such a disconnection between the nature of the act complained of and the
content of the Convention right at issue.
Section 17 of the 1993 Act provides a power to protect the public by
returning potentially dangerous convicted persons to prison in order that they
complete their sentence. Article 3
of the first protocol imposes an obligation on contracting states to ensure
regular elections based on universal suffrage.
There is no direct or even indirect inconsistency or conflict between the
Scottish Ministers' powers under section 17 and article 3 of the first
protocol. That article says nothing
about when someone can and cannot be imprisoned, and section 17 says nothing
about when someone can and cannot vote.
It can only be argued that there is an inconsistency because
re-imprisonment brings section 3(1) of the 1983 Act into operation. Is this causal link sufficient to create the
kind of incompatibility aimed at by section 57(2) of the Scotland
Act? Or is the true and only
incompatibility that between section 3(1) of the 1983 Act and the Convention
right to vote? As a matter of
construction of section 57(2) I would expect that an incompatibility should be
apparent from a comparison between the relevant act and the relevant Convention
right. If the contravention of the
Convention right flows directly from the operation of some other factor, which
itself has been declared as being incompatible with that right, why should one
look beyond that factor with a view to identifying other incompatible and thus
unlawful acts? To my mind it would be
surprising and undesirable that a decision might be unlawful because it is allied
to what might be an unforeseen or at least unexpected independent factor,
especially if that factor is outwith the control of the person making the
decision. Should it be different if the decision
maker can foresee that his act will create the conditions necessary for an
infringement? These considerations are
all the more important when the decision is made for good and perhaps
overwhelming public safety reasons. Further,
some of the cases suggest that the Court has no discretion once an
incompatibility is identified, and that, however unpalatable the consequences
might be, the result of the vires
control in section 57(2) of the Scotland Act is that the unlawful act must
be stopped or struck down. In these
circumstances I consider that the court should be cautious when asked to adopt
a broad approach to the identification of incompatibility under section
57(2). Is it not more likely that,
consistent with its dictionary definition, "incompatible" was intended to
connote a mutual intolerance or inherent inconsistency between the act and the
Convention right when one is placed with or against the other? Miss Carmichael submitted that the
present is a case equivalent to joint wrongdoing, where two persons are
separately culpable and responsible for a detriment. However, if section 3(1) was repealed,
revocation of a licence would become an entirely harmless event so far as article
3 of the first protocol is concerned. To
my mind this suggests that true and sole responsibility for the incompatibility
rests with the 1983 Act. While private
law concepts may show that an act can be wrongful because it has foreseeably
harmful consequences, I am not convinced that this is the correct approach when
determining incompatibility in the context of either section 57(2) or the
equivalent provision in section 6(1) of the Human Rights Act 1998 (HRA). In any event, even in the context of breach
of private law obligations, there are many examples when neither foreseeability
nor "but for" causation are sufficient to create legal liability. The matter often boils down to the
identification of true or legal responsibility for the act or damage at
issue. In my view something similar is
in operation when addressing the question posed in this case.
[6] These
are immediate or first impressions. I
now turn to some of the cases where section 57(2) and its equivalent in
HRA have been discussed. All counsel
made reference to R v HMA 2003 SC (PC) 21. At paragraph 47 Lord Hope of Craighead agreed
with the view expressed by Lord Millett in an earlier case that if a member of
the Scottish Executive acts incompatibly with Convention rights, there is no discretion
to withhold a remedy. At
paragraph 50 he agreed with Lord Steyn that "incompatibility" conveys
the idea of inconsistency. "It requires
a comparison to be made between the act of the member of the Scottish Executive
and the relevant Convention right....". There was a difference of view between their
Lordships as to the nature and content of the Convention right at issue in R., but that is separate from how the
Court should go about identifying an incompatibility in the first place. At paragraph 17 Lord Clyde said that the
word "incompatible" simply requires that the act should be in conflict with the
Convention right. Lord Rodger of
Earlsferry referred to a public authority "violating" or "infringing" a
Convention right. In the present case
the petitioner can plausibly seek support from these passages by pointing out
that but for the revocation of his licence he would be free to vote, and that
the revocation has subjected him to the objectionable blanket ban under section
3(1) of the 1983 Act. However, I
consider that, properly understood, incompatibility in terms of
section 57(2) is based on a mutual irreconcilability between the relevant
act and the relevant Convention right, as opposed to the causality approach contended
for by Miss Carmichael.
[7] The
complication of the necessary involvement of another factor did not arise in R.
However, something similar was considered in the earlier case of Montgomery v HMA 2001 SC (PC) 1, which was concerned
with whether the Lord Advocate was entitled to continue a prosecution
notwithstanding pre-trial publicity which threatened a fair trial. All the parties accepted that a devolution
issue arose, though doubt on this point was expressed by some of their
Lordships. They asked whether the Lord
Advocate was truly responsible for any possible incompatibility with article 6
of the Convention, or whether it lay with the court as the body with ultimate
responsibility for the fairness of the proceedings. The reservations expressed on this point are
instructive in the particular circumstances of the present case. Lord Hoffman said that a decision was
required "on whether an infringement of a Convention right is attributable
to a particular organ of government, in this case the Lord Advocate" (page 7F,
emphasis added). I think it clear that
attribution was intended to mean more than a purely causal connection. Rather
Lord Hoffman focussed on the issue of responsibility for the conflict with the
Convention. Having observed that one
must decide, as a matter of construction, what kind of acts the Convention
right forbids, Lord Hoffmann continued at page 7B by saying that it is
necessary to
"identify the persons upon whom article 6(1) imposed a
correlative obligation. Whom does it
oblige to act in such a way as to ensure a fair and public hearing? If as a matter of construction of the
article, no obligation is imposed on the Lord Advocate, then no complaint of an
infringement of this particular Convention right can give rise to a devolution
issue."
In the present case a similar
question can be asked as to whether article 3 of the first protocol imposes an
obligation on the Scottish Ministers to ensure that the petitioner can vote, or
at least not to exercise their otherwise lawful powers in a manner which,
because of electoral law, causes the petitioner to lose his opportunity to
vote. Article 3 of the first
protocol places an obligation on the UK
state. It is presently exercising its
relevant responsibilities through the terms of the 1983 Act, and, given the terms
of section 4(6) of HRA, section 3(1) continues to have full force and
effect notwithstanding the declaration of incompatibility in Smith.
Lord Hoffman answered his question by saying that the obligation to
provide a fair trial was imposed on the court, not upon the Lord Advocate, therefore the Lord Advocate could not be acting
incompatibly with the Convention by bringing the prosecution, albeit it was the
prosecution which created the conditions necessary for the alleged
infringement. Similarly, in the present
case any obligation to allow the petitioner a vote is imposed upon the UK
authorities, not upon the Scottish Ministers, thus the Scottish Ministers are
not acting incompatibly with a Convention right by exercising their powers
under section 17 of the 1993 Act.
[8] By
way of analogy, Lord Hoffman observed that the unfairness of a trial determined
on the basis of evidence obtained by torture was the responsibility of the court,
not that of the torturer. His actings
were a sine qua non of the unfairness,
but he was not acting incompatibly with article 6, though he was with
regard to article 3. At
page 8C, Lord Hoffman said,
"The acts of the
Lord Advocate in bringing and maintaining the prosecution, tendering evidence
and so forth, are likewise in my opinion capable of creating the conditions for
an unfair determination of the charge but they cannot in themselves cause such
an event and therefore infringe the provisions of article 6(1)."
In my opinion similar reasoning can
be applied to the particular circumstances of this case. Such disagreement as there was in the Privy
Council related to the position of the Lord Advocate as "master of the
instance" in Scottish criminal procedure and thus whether he had direct
responsibility for the continuation of the trial, an issue peculiar to the
circumstances of Montgomery. In my view this disagreement does not detract
from the utility of Lord Hoffman's analysis in the circumstances of this
case.
[9] I
recognise that my approach may not be wholly consistent with a passage in the judgment
of Lord Hope of Craighead at 18A-C in Montgomery which, on one view, extends incompatibility
to any act which leads to an infringement of a Convention right. However the premise of this part of his reasoning
was that the relevant Convention obligation was imposed on a body of which the
Lord Advocate was a member. In the
present case it can be noted that only the UK authorities
are responsible for the franchise, whereas the petition is directed at a
decision of the Scottish Ministers, who have no such responsibility. The vires
control in section 57(2) is based on the fact that the Scottish Executive and
the Scottish Parliament are confined to the powers granted to them by the UK
Parliament in the Scotland Act. The
Scottish Parliament does not enjoy the constitutional sovereignty and legislative
supremacy possessed by the Westminster Parliament. As Mr Moynihan submitted, it would be
odd if the protection given to section 3(1) of the 1983 Act by section 4(6) of
HRA was circumvented, at least so far as the petitioner is concerned, simply
because he happens to be in prison after revocation of his licence by the
Scottish Ministers. Before leaving Montgomery I
note that both Lord Nicholls of Birkenhead and Lord
Clyde expressed support for Lord Hoffman's
approach. At page 34 Lord Clyde said
that "there is a real question whether the bringing of a charge, which may be
seen as a precondition for the article to apply, can itself fall within the
scope of the article", the article being concerned with the determination of
the charge. Similarly in the present
case I do not consider that the Scottish Ministers revocation of the
petitioner's licence falls within the scope of article 3 of the first protocol. As it is sometimes put, article 3 of the
first protocol is not engaged.
[10] In R. at paragraphs 7
and 14 Lord Steyn asked whether the act complained of "automatically" or
"by itself" triggered a breach of the Convention right relied on. Again this suggests a need for a direct link,
not one dependent on the operation of a separate and independent factor, such
as the blanket ban imposed by the 1983 Act.
While the majority of their Lordships disagreed with Lord Steyn's view
of the nature and content of the Convention right at issue in R., and thus with his answer to the
ultimate question in the case, I do not detect any quarrel with his explanation
of what, as a matter of generality, is needed to create the kind of
incompatibility struck at by either section 57(2) of the Scotland Act or its
equivalent in HRA.
[11] I was encouraged by all counsel to make a value judgement of
the kind discussed by Lords Bingham and Nicholls in M. v The Secretary of State
for Work and Pensions [2006] 2 WLR 637.
In addition Mr Cullen asked me to decide the case by applying the
reasoning of Lord Hope at paragraph 47 of his judgment in R.. However I am not persuaded that I should
accept either of these invitations. M. required a decision as to whether a
distinction based on sexual orientation when assessing the child support
payable by a non-residential parent fell within the ambit of either discrimination
under article 14 or the right to respect for family and private life under
article 8. Lord Bingham indicated
that one must first identify the core values which the article is intended to
protect, and then judge whether there is any "meaningful connection" between
the specific complaint and those core values, or whether any link is too
tenuous or too remote, and thus outside the scope of the protection afforded by
the Convention. Lord Nicholls said that
one should assess how "seriously and directly the discriminating provision or
conduct infringes upon the values underlying the particular substantive
article" in order to decide whether it is within the ambit of that
article. In R. at paragraph 47 Lord Hope addressed the exercise of judgment
involved when determining whether a period of delay in the determination of a
criminal charge amounted to undue delay, and thus was incompatible with
article 6. (That this was the
context of his discussion is confirmed by the explicit reference to the first
of two passages quoted from the judgment of Cooke P. in Martin v Tauranga District Court [1995] NZLR 419). Lord Hope said: "It is at that stage that there is room for
the flexibility which enables a balance to be struck between the competing
interests of the individual and of society."
However, once incompatibility is found "the result which section 57(2)
requires follows .... automatically." Helpful though the guidance in M. and in Lord Hope's judgment in R. will be in many cases, I am not
convinced that they apply in the perhaps unusual circumstances of this
case. The incompatibility between the
blanket ban contained in the 1983 Act and the rights granted by article 3
of the first protocol has been authoritatively determined. The issue before me is whether an act of the
Scottish Ministers, which is otherwise unconnected to voting rights, lawful,
and in the public interest, becomes incompatible with that article because one
consequence is that the ban in the 1983 Act once again applies to the
petitioner. While I can see the
potential relevance of concepts such as remoteness and "meaningful connection",
I think it important to recognise that this is a very different question
raising separate issues from those considered in M. and at paragraph 47 of Lord Hope's judgment in R.
In these circumstances I am content to base my decision on the reasoning
set out above.
[12] Miss Carmichael sought to support her position by reference to
"the foreign cases" as explained in R.
(Ullah) v Special Adjudicator [2004] 2 AC 323. For her the relevance of cases of this type
was that they illustrate circumstances in which an act, which in itself is Convention
compliant, for example extradition or explusion, is struck down because it
leads to a breach of a Convention right by another party, namely a foreign
government not subject to the Convention, typically by conduct amounting to
inhuman or degrading treatment. Miss
Carmichael submitted that, by parity of reasoning, this indicates that the
Scottish Ministers revocation of the licence can be quashed as unlawful, even
if, when viewed on its own, it is harmless so far as the Convention is
concerned, and only creates the conditions required for an infringement by
operation of the 1983 Act. It is
therefore necessary to consider these cases as explained in Ullah in a little detail, especially
since my view is that, rather than support Miss Carmichael's argument,
they confirm that it is wrong.
Mr Ullah was an Ahmedi Preacher from Pakistan. He entered the UK
and claimed asylum, alleging religious persecution if returned to his own
country. The claim was refused on the
basis that the facts did not disclose anything sufficient to infringe the
rights guaranteed in article 9, were he to be returned to Pakistan. A similar claim by Miss Do, a Roman Catholic
from Vietnam,
was also considered. By the time these
claims reached the Judicial Committee the issue had become focussed on whether
a contracting state could incur liability under the Convention by removing a
person only under and in terms of article 3, or whether issues might arise
when foreseeable ill-treatment in the country of origin violated other
articles, such as articles 2, 5, 6, 8 and possibly 9. It was held that the decision of the Court of
Appeal that only article 3 could be engaged in cases of this nature was too
narrow and restrictive. Lord Bingham of
Cornhill quoted the Strasbourg court's
decision in Soering v UK
(1989) 11 EHRR 439. Miss Carmichael
relied on the passages from Soering rehearsed
at paragraph 11 of Lord Bingham's opinion, including:
"Inherent in the
whole of the Convention is a search for a fair balance between the demands of
the general interest of the community and the requirements of the protection of
the individual's fundamental rights." (Paragraph 89).
Thus a decision by a contracting
state to extradite a fugitive may give rise to an issue under article 3 and
hence engage the responsibility of that state under the Convention where
substantial grounds have been shown for believing that the person concerned, if
extradited, faces a real risk of being subjected to torture or to inhuman or
degrading treatment in the requesting country (paragraph 91). Subsequently the Strasbourg court said in Bankovic v Belgium (2001) 11 BHRC 435, paragraph 67, that it is "only in
exceptional cases" that acts of the contracting states performed, or producing
effects, outside their territory can constitute an exercise of jurisdiction by
them within the meaning of article 1 of the Convention. After a detailed review of the Strasbourg
jurisprudence it was decided in Ullah
that such exceptional cases are not restricted to article 3 but might
arise where the circumstances reveal that expulsion or extradition would
directly violate the principles of fundamental justice such that, in effect,
the removing state would be participating in a flagrant denial or gross
violation of fundamental rights. It was
stressed by Lord Bingham at paragraph 24 that "successful reliance demands
presentation of a very strong case". He
continued:
"The lack of
success of applicants relying on articles 2, 5 and 6 before the Strasbourg
court highlights the difficulty of meeting the stringent test which that court
imposes. This difficulty will not be
less where reliance is placed on articles such as 8 or 9, which provide for the
striking of a balance between the right of the individual and the wider
interests of the community, even in a case where a serious interference is
shown. This is not a balance which the Strasbourg
court ought ordinarily to strike in the first instance, nor is it a balance
which that court is well placed to assess in the absence of representations by
the receiving state whose laws, institutions or practices are the subject of
criticism. On the other hand, the
removing state will always have what will usually be stronger grounds for
justifying its own conduct;
the great importance of operating firm and orderly immigration
control in an expulsion case; the great
desirability of honouring extradition treaties made with other states."
[13] If translated to the circumstances of the present case, this provides
some support for the submission that the Scottish Ministers must place
considerable importance on the need to protect the public from dangerous
convicted persons when considering their powers to revoke a release on licence
under section 17 of the 1993 Act, and that in any balancing exercise
deprivation of the right to vote will always be outweighed by the public
interest reasons necessary to justify revocation of the licence in the first
place. However, in my view the
importance of Ullah goes further, and suggests that
the "causation principle", as described and relied upon by the claimants'
counsel in Ullah, is an exception to
the general rule, and should be applied only in truly exceptional circumstances
when to do otherwise would flagrantly violate the very essence of a fundamental
right recognised by the Convention, sometimes called a "core value". Lord Steyn's analysis confirmed that there
may be wholly exceptional cases, such as D.
v UK 24 EHRR 423, where member states
come under a positive obligation to prevent harm from non-state actors and
where otherwise individuals would be exposed to "foreseeable flagrant risks of
violations of core guarantees" (paragraph 29). As the Court of Appeal said in Ullah, that would challenge "the
humanitarian principles that underlie the Convention." However, I consider it tolerably clear that
the circumstances of the present petition do not fall into the category of
cases which trigger the positive obligations discussed by Lord Steyn, nor do
they satisfy the stringent test discussed by Lord Bingham. I therefore conclude that Ullah does not demonstrate that the
question before me should be determined in favour of the petitioner by the
strict application of a "causation principle".
[14] Lord Carswell explained that "the foreign cases" are based
on the avoidance of conflict with the fundamental values of the democratic
societies making up the Council of Europe.
A consideration of the ruling in Hirst
confirms that it is not a fundamental value that all prisoners must be given
the vote, but rather that states have a wide margin of appreciation in this
area. Indeed it can be doubted that the
petitioner will enjoy the right to vote under new Convention compliant
restrictions on the franchise. Lord
Carswell cited a phrase adopted by the Supreme Court of Canada describing a
decision to expel an asylum claimant as one that would "shock the Canadian
conscience", again illustrating the exceptional nature of these cases. I doubt that my decision in this case will
shock the Scottish conscience. On the
contrary, to order the unrestricted liberation of a convicted person who has
still to complete his sentence and who is considered to be a danger to the
public, simply to allow him the opportunity to vote on 3 May, would be
likely to cause public consternation. Of
course, in itself such a consideration would not justify a decision to withhold
a valid remedy in law. However, if the
petitioner was held to be entitled to the remedies he seeks, in my view, and as
warned by Lord Steyn in R. at
paragraph 18, "the moral authority of human rights in the eyes of the
public" would be "undermined by allowing them to run riot in our justice
systems." In Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72 Lord Bingham observed at paragraph 9: "In the exercise of individual human rights
due regard must be paid to the rights of others, and the society of which each
individual forms part itself has interests deserving of respect". It is necessary to achieve "a fair balance
between the general interest of the community and the personal rights of the
individual, which have been described as inherent in the whole of the
Convention." Given that in Hirst the Strasbourg
court contented itself with a declaration of incompatibility and withheld any
further remedy, it is not easy to see why Mr Birrell should obtain the
remedies sought in this application.
Rather the said "fair balance" has already been achieved by the
declaration of incompatibility granted in Smith
and by the ongoing efforts of the UK Government to remedy the infringement
identified in Hirst. It can be borne in mind that the petitioner
must be deemed to have been aware of the legal consequences when he embarked on
his life of serious crime, and that he is in custody at present because of his
conviction in 2003. His
plea of guilty and the admitted criminal conduct which lay behind it are
arguably a more compelling cause of his disenfranchisement than the Scottish
Ministers' desire to protect the public by exercising their powers under
section 17 of the 1993 Act. That
said, the maintenance of the balance identified in Hirst is an outcome of my reasoning, but, as explained above, is
not a central factor in it. Rather, in
essence, I have agreed with the decision of Gillen, J. in In Re Toner and Walsh 2007 NIQB 18 who, when faced with a request
for a declaration that convicted prisoners were entitled to vote in the recent
elections to the Northern Ireland Assembly, concluded that "the real mischief"
is to be found in the operation of the 1983 Act. It is section 3(1) of that Act which is
incompatible with article 3 of the first protocol, albeit it remains in
force meantime because of the terms of section 4(6) of HRA. In my view the Scottish Ministers acted
lawfully and within their powers under section 17 of the 1993 Act when they
revoked the petitioner's licence and caused him to return to prison, thus I
have refused the petition.
