Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2007] CSOH 73
P694/07	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     ­­­­­­­­­­­­­­­­­________________

 

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.