Friday, October 18, 2013


Of peripheral interest to criminal lawyers are a couple of recent decisions of the United Kingdom Supreme Court.

Prisoners and voting rights

Chester, R (on the application of) v Secretary of State for Justice [2013] UKSC 63 (16 October 2013) illustrates how an issue that should be resolved in favour of the applicant may not require a remedy. Previous decisions [18] of the ECtHR, including an appeal from the United Kingdom, had held that denying prisoners the right to vote is a breach of the Convention. The UK legislature is looking at this [19], and the Supreme Court therefore did not see that a declaration of incompatibility was necessary on the appeals in this case.

The relationship between national courts and the Strasbourg court was considered [27], and the Supreme Court rejected the respondent's submission that the difference here was over "some fundamental substantive or procedural aspect of our law" sufficient to justify departure from Strasbourg jurisprudence.

Indeed, the issue of removing prisoners' voting rights was [35] not "fundamental to a stable democracy and legal system such as the United Kingdom enjoys."

Ah yes, thank you Joni Mitchell ...
"Don't it always seem to go
That you don't know what you've got
Till it's gone
They paved paradise
And put up a parking lot"

That is, is the moral value of having the right to vote equivalent to the value of not having the right to vote?

It is difficult to stir up much public discussion about whether prisoners should be deprived of the right to vote. In New Zealand the Electoral Act was recently amended to further strengthen existing restrictions on prisoners' voting rights, so that now anyone detained in prison pursuant to a sentence of imprisonment imposed after 16 December 2010 does not have the right to vote. For an outline of the reasons this might not be appropriate, see the Report of the Law and Order Committee on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill, particularly the New Zealand Labour Party minority view.

Update: The High Court, in Taylor v Attorney-General [2015] NZHC 1706 (24 July 2015) has declared that:

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.”

Further update: On 9 November 2018 the Supreme Court confirmed the existence of the High Court's power to make a declaration of inconsistency with the New Zealand Bill of Rights Act 1990, and has dismissed the Attorney-General's argument to the contrary: Attorney-General v Taylor [2018] NZSC 104.

Oral hearings

Sometimes judicial decisions may be made "on the papers" filed by the parties, without the need for an oral hearing of argument. In Osborn v The Parole Board [2013] UKSC 61 (9 October 2013) the Supreme Court considered when an oral hearing would be required by common law procedural fairness.

The Court's press summary sets out the essential points, and they are also summarised in the judgment at [2].

See also R v Parole Board, ex parte Smith and West [2005] UKHL 1 (27 January 2005), discussed here on 31 January 2005 and see para [14] of Osborne for administrative developments, R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005), discussed here on 5 December 2005, and Ebanks v R (Cayman Islands) [2006] UKPC 16 (27 March 2006), discussed here on 28 March 2006.

Significantly, the tribunal must "guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense" [2(viii)].

Appellate judges who have the power to deal on the papers with applications for leave to appeal will, no doubt, not need to be reminded of these considerations.