Draft Voting Eligibility (Prisoners) Bill - Joint Committee on the Draft Voting Eligibility (Prisoners) Bill Contents


6  Practicalities of disenfranchisement and re-enfranchisement

Who is denied the right to vote in the UK?

159. To vote in a UK general election a person must be registered to vote and must not belong to any of the following groups:

  • young persons under 18 years old;
  • foreign nationals (apart from citizens of the Irish Republic and Commonwealth countries resident in Britain);
  • peers sitting in the House of Lords;
  • sentenced prisoners; or
  • persons convicted within the previous five years of illegal election practices.

160. The qualifications for voting in local elections, elections to the devolved bodies, or in European Parliamentary elections, may vary. For instance, the disqualification attaching to peers who sit in the House of Lords, which derives ultimately from Resolutions of the House of Commons rather than statute law, extends only to elections to the House of Commons, and peers may accordingly register to vote in local and European Parliamentary elections.

161. The prohibition on sentenced prisoners voting extends to all elections for which the UK Parliament is responsible for the franchise, whether local or European. As the entitlement to vote in general elections in other countries is set out in the relevant national law, some overseas nationals serving prison sentences in the UK can and do vote in parliamentary elections in their country of origin. When members of the Committee visited HMP Downview prisoners told us that a Dutch inmate had voted in a recent election in the Netherlands, and that the prison authorities had facilitated her voting.

162. Unconvicted prisoners, convicted prisoners awaiting sentence, and people imprisoned either for contempt of court or due to a default of payment of a sum of money, all remain eligible to vote.[177] Such prisoners may or may not already be registered to vote. If they are not registered they can apply to register at their previous place of residence, or, in certain circumstances, at the prison where they are held.

The prison population

163. The Ministry of Justice estimate that on 30 June 2013 some 65,963 prisoners, who were otherwise qualified to vote according to the criteria described above, were serving immediate custodial sentences.[178] Although the prison population fluctuates, it follows that 60-70,000 convicted prisoners would gain the right to vote were the current prohibition to be entirely lifted.[179]

164. Option 1, as set out in the draft Bill would permit prisoners sentenced to a custodial sentence of less than 4 years to vote. Analysis of the 2013 prison population shows that enacting Option 1 would grant the right to vote to approximately 24,000 prisoners.

165. Option 2, as set out in the draft Bill, would allow those prisoners sentenced to a custodial; sentence of six months or less the right to vote. On 30 June 2013, just over 4,000 prisoners sentenced to six months or less would have been eligible to vote in a Parliamentary election under Option 2.[180]

166. If the vote were to be restored to prisoners serving sentences of one year or less (which would bring the threshold for loss of voting rights into line with the existing statutory disqualification for sitting in or standing for election to the House of Commons), approximately 7,000 prisoners would be enfranchised.

167. Table 1provides a summary of the prison population in June 2013 by reference not only to sentence length but to types of offences. It should be noted that some offence types encompass a very wide spectrum of individual offences, from the relatively minor to the very serious. It should also be noted that if a person is prosecuted for more than one crime or offence in a single case, only the "principal offence" (the one for which the heaviest penalty is imposed) is counted.[181]Table 1 The prison population[182]
Prison population under immediate custodial sentence (aged 18+ UK, Irish or Commonwealth nationalities), England and Wales, 30 September 2013
Sentence length
6 months or less:

total

12 months or less:

total

Less than 4 years:

total

Total prison population:

all sentence lengths

Violence against the person 8631,521 4,43218,176
Sexual offence89 2951,601 10,169
Robbery9 911,866 8,114
Burglary150 5054,163 6,846
Theft and handling 1,3491,974 3,2773,981
Fraud and forgery77 208664 1,139
Drug offences109 3973,717 9,402
Motoring offences237 394602 694
Other offences1,071 1,6373,354 7,153
Offence not recorded 6780 175289
Total 4,021 7,102 23,851 65,963

Sentencing

168. Most of the evidence submitted to this inquiry as to the impact of the prohibition relied upon snapshots of that population—in other words, the number of prisoners being detained on a given day. But a snapshot tells only part of the story, since it overlooks the much larger number of offenders each year (including repeat offenders) who receive short sentences, most of whom fail to show up in the figures for any given day.

169. The snapshot contained in Table 1 shows that on any given day when an election is held, only some 6 percent of otherwise eligible sentenced prisoners will be serving sentences of 6 months or less; around 9 percent will be serving sentences of 12 months or less; and around 40 percent are likely to be serving sentences of less than 4 years.

170. The figures for sentencing over the whole of 2012 are given in Table 2.Table 2 Number and length of custodial sentences given in England and Wales in 2012[183]
6 months or less12 months or less Less than 4 years All custodial sentences
55,77767,352 89,28998,047

171. These figures include some double-counting, in that a number of individuals may have been sentenced to more than one short term of imprisonment in the course of the year. With this proviso they show that in the course of 2012 some 57 percent of those sentenced to terms of imprisonment were given sentences of 6 months or less; 69 percent were given sentences of 12 months or less; than 91 percent were given sentences of less than 4 years.

172. Combining the data on sentencing and on the prison population suggests that of all those sentenced to terms of imprisonment of 6 months or less in the course of a year, fewer than 8 percent are in prison (and therefore actually deprived of the vote) on any given day within that year. Whether or not the prohibition actually affects a particular prisoner serving a short-term sentence is in large part a matter of chance.

173. Moreover, those prisoners who are given immediate custodial sentences in themselves represent only a small proportion of those passing through the criminal justice system each year. The overall sentencing figures for 2012 are given in Table 3.

Table 3 Sentencing data for 2012[184]
Immediate custodySuspended sentence Community sentence FinesOther disposals Total offenders sentenced
98,04744,644 149,328823,298 114,5101,229,827

174. Most of the offences listed here were summary offences, including non-indictable motoring offences; of those sentenced for this category of offence, fewer than 2 percent were given custodial sentences. The largest single category of indictable offences was theft and handling stolen goods: a total of 111,025 people were sentenced for this category of offence. Of these, just over a fifth, 22,862 people, received an immediate custodial sentence, of an average length of 4.1 months. The next largest category was drug offences: a total of 57,601 people were sentenced, of whom 9,011 (just over 15 percent) received an immediate custodial sentence, with an average length of 28.7 months.

175. The numbers involved, and the relatively low percentage of custodial sentences handed out in these two large categories of offender, illustrate the many factors that judges have to take into account in sentencing. Lord Faulks QC, who has sat as a Recorder, underlined the seriousness of any decision to send an offender to prison: "You did so very reluctantly, and you were encouraged to be reluctant. There are all sorts of reasons for avoiding sending people to prison, such as expense and the fact that it does not provide much rehabilitation. As a result, you send people to prison only when you have exhausted other options, either because of repeat offending or because of the seriousness of the offence."[185]

176. One further factor that may determine the likelihood and length of a custodial sentence is the readiness of defendants to enter a guilty plea, thereby earning a "discount" on their ultimate sentence. Readiness to enter a guilty plea appears to vary between ethnic groups, and Professor Mike Hough therefore suggested that "If minority ethnic groups are … a bit less likely to enter a guilty plea, they will get a heavier sentence—other things being equal—so a disproportionate number would be over the custody threshold."[186] Published Government statistics appear to give some support to this suggestion.[187] Such considerations led Baroness Hale of Richmond, in her judgment on Chester and McGeogh, to suggest that the vagaries of sentencing mean that there is "an element of arbitrariness in selecting the custody threshold as a unique indicator of offending so serious as to justify exclusion from the democratic process."[188]

Types of offences leading to imprisonment

177. We found it very difficult to acquire good quality data on the types of offenders serving sentences of particular lengths. While there is comprehensive sentencing data, broken down by offence, the prison service do not hold such data in respect of prisoners in detention. Nevertheless, the Government's supplementary written evidence provides an overview, by reference to the Government's options of 6 months or 4 years and to broad categories of offence type.[189]

178. The figures show, for example, that on 30 June 2012 some 19,373 prisoners guilty of offences under the heading "violence against the person" were in detention in England and Wales. Of these, 995 were serving sentences of 6 months or less, and 5,122 sentences of under 4 years.

179. The difficulty arises in interpreting these offence types. At one extreme, 4,949 of those serving sentences for violence against the person were serving life sentences for murder. But at the lower end of the spectrum, the bulk of the prisoners are grouped together under what the Government called "other offences against the person", including "a range of offences under Offences Against the Person Act 1861 e.g. assault; assault occasioning Actual Bodily Harm; wounding with intent to do Grievous Bodily Harm."[190] This makes it difficult to assess the seriousness of the individual offences committed by those serving shorter sentences for this type of offence—and, at the same time, lends some support to the Government's approach of using sentence length as a general proxy for the seriousness of offences, regardless of sentence type.

Registration practicalities

180. The Committee has also considered the practical implications of allowing prisoners to register to vote. The introduction to the draft Bill states that the Government envisages that any prisoners granted the right to vote would vote by post or proxy, and would "be entitled to register to vote not at the prison, but at their former address or, if they did not have a former address, the area where they had a local connection."[191] The Ministry of Justice's second stage consultation paper, issued in 2009, supported this method of registration, noting that there were significant disadvantages to prisoners being registered in the local authority area in which the prison was located—the obvious risk being that the outcome of elections in areas where large prisons are located (such as the Isle of Wight) would be distorted. The former Chief Inspector of Prisons, Lord Ramsbotham, welcomed the Government's approach, telling us that it was right that such prisoners voted "where they come from, not where the prison is."[192]

181. While prisoners would be able to register in a particular area by making a 'declaration of local connection', the consultation paper made clear that they would be barred from making such a declaration to register in the constituency in which the prison was situated unless they could demonstrate a genuine connection with this locality.[193] This marks a change of approach when compared with the provisions in the Representation of the People Act 2000, which, in certain circumstances, enable prisoners to register their place of detention as their place of residence.

182. We asked our witnesses if they had encountered any problems administering voting by prisoners, or whether they would envisage any difficulties were Options 1 or 2 in the draft Bill to be adopted. Lord Ramsbotham told us that "prisons that I have experienced have never had a problem in administering it. It is a straightforward provision"[194]. The Prison Governors' Association told us that they "did not believe that there would be any significant administrative impact on the prison system if prisoners were given the right to vote, it has not been an issue with remand prisoners in the past, and since most prisoners approaching their release date have an address to go to it would be possible to know which constituency they would vote in."[195] Dr Cormac Behan confirmed that most jurisdictions that allow prisoners to vote do so by way of postal ballot from their home, rather than the prison, constituency.[196]

183. Dr Behan did, though, indicate that in the Republic of Ireland studies had found that the bulk of prisoners came from disadvantaged urban areas, with a number of electoral districts and constituencies containing a higher proportion of those incarcerated in comparison to other districts. It therefore remains possible that, even if convicted prisoners were to be registered to vote in the constituency in which they were registered prior to conviction, there could be significant effects upon particular constituencies—though in the absence of detailed research it is impossible to state this with confidence.

How many prisoners would vote?

184. During our inquiry we were able to take evidence from serving prisoners; charities working with prisoners; and lawyers representing approximately 1,000 prisoners who have brought cases before the ECtHR. Tony Kelly, a lawyer acting for between 400-500 prisoners, suggested that there were many different motivations for prisoners coming to seek legal advice upon this issue. A number of prisoners were keen to vote, while some prisoners were inevitably motivated "purely by the prospect of damages."[197] The number of prisoners lodging claims for compensation may not therefore to be a reliable indicator of the level of interest in voting among the prison population as a whole.

185. When we visited two prisons in the South Central region, HMP High Down and HMP Downview,[198] there was no mention by the prisoners of compensation. Prisoners at both prisons expressed the overriding view that all prisoners should be allowed to vote. The reasons for stating this varied, but the point made most strongly was that prisoners were still part of society, had links to the wider community, and were affected by Government policies, and that they should therefore have a say in how the country is governed. Some of the female prisoners pointed out that they had children, cared for either by family members or the state, and that they should have the right to vote on their behalf. There was also a general view that prisoners should be given an opportunity to have a say in how the society into which they would ultimately be released was run.

186. In contrast, the Prison Governors Association (PGA) was not convinced that the majority of prisoners were actively seeking the right to vote. The PGA suggested that issue had been "needlessly escalated by political rhetoric," as "in reality, the vast majority of prisoners would not even bother voting."[199] Dr Behan, in a study of the proportion of Irish prisoners who voted in the 2007 Irish election, found that only 10.1% of eligible prisoners actually voted, though this figure may have been depressed by the tight registration period. His study suggested that in Ireland, there were greater levels of registration in those institutions that housed long term or mature prisoners.[200]

187. Mark Johnson, Director of User Voice, an ex-offender led charity that runs democratically elected prisoner councils in a number of prisons, confirmed that "when you are in prison, when you come from a chaotic background with drug addiction, mental health and kind of allergic reaction to society or society's allergic reaction to you—the political right to vote every term is not at the top of that scale."[201] Mr Nick Hardwick, of HM Inspectorate of Prisons, told us that prisoners very rarely raised the right to vote with him or his inspectors. He regarded this as "of some concern in itself", and said that "there is something to be said for the argument that an acceptance of civic obligations which include the responsibility to vote is something that should be encouraged as part of a prison's work to try and ensure prisoners leave custody less likely to offend than when they entered."[202]

188. The Government has not sought to defend the current ban on prisoner voting by reference to the impact of prisoners' votes upon the outcome of elections. In purely practical terms the number of convicted prisoners serving custodial sentences at any one time, relative to the size of the electorate as a whole, is tiny,[203] and, as the preceding paragraphs show, turnout among prisoners would in all probability be low. Any impact upon constituencies where prisons are located could also be mitigated by ensuring that prisoners were to register to vote in those constituencies in which they were resident prior to their imprisonment. In such circumsntances, it is difficult to imagine that the votes of prisoners, even were all prisoners to be enfranchised, could have a significant impact upon the outcome of an election.

Conclusions of the Committee

189. For those prisoners sentenced to short terms of imprisonment, who make up a large majority of those sentenced each year, the chance that their period of detention will coincide with an election is small: whether or not the current ban on prisoner voting results in any particular individual losing the ability to vote is substantially a matter of chance.

190. In the absence of good quality data on the offences committed by the prison population, it is difficult to assess the types of prisoners who would be affected by Options 1 and 2 in the draft Bill.

191. We have heard no evidence that suggests the implementation of a process to allow a number of prisoners to vote would be difficult for the Prison Service to administer.

192. In the event that some prisoners are enfranchised, we would support the Government's preferred approach of enabling prisoners to vote either in the place of previous residence, or by means of a declaration of local connection, rather than in the constituency in which they are detained.

193. There is little evidence regarding the number of enfranchised prisoners who would actually vote. Experience in Ireland suggests that the numbers will be small, possibly no more than 1 in 10.

194. We therefore conclude, on the basis of the small numbers likely to vote, and the Government's approach to prisoner registration, that neither Option 1 nor Option 2 would have a significant bearing on the outcome of future elections.


177   See Prison Service Order 4650, Prisoner Voting Rights, for full details on current circumstances. Back

178   See Table 1. For the purposes of this calculation it is assumed that all Irish and Commonwealth citizens are resident in the UK and would be able to register to vote. Back

179   This number represents those prisoners in the current prison population who are aged 18 or over and of UK, Irish and Commonwealth nationalities For the purposes of this calculation it is assumed that all Irish and Commonwealth citizens are resident in the UK and would be able to register to vote. Back

180   Supplementary written evidence from Her Majesty's Government, Table 1 Back

181   Supplementary written evidence from Her Majesty's Government, paragraphs 33-35 Back

182   Source: Ministry of Justice Back

183   Source: Ministry of Justice, Criminal Justice Statistics Quarterly, December 2012, Table 5.6 Back

184   Source: Ministry of Justice, Criminal Justice Statistics Quarterly, December 2012 Back

185   Q 33 Back

186   Q 87 Back

187   See Ministry of Justice, Statistics on Race and the Criminal Justice System 2012 Back

188   Chester and McGeogh, paragraph 96 Back

189   Supplementary written evidence from Her Majesty's Government, Table 3 Back

190   Supplementary written evidence from Her Majesty's Government Back

191   Draft Bill, paras 33 and 37 Back

192   Q 23 Back

193   Voting rights of convicted prisoners detained within the United Kingdom: second stage consultation. Consultation Paper CP6/09, Ministry of Justice, 8 April 2009, p 15. Back

194   Q 25 Back

195   Written evidence from the Prison Governors' Association Back

196   Written evidence from Dr Cormac Behan Back

197   Q 158 Back

198   See Appendix 5. HMP High Down is a category B, male, local prison primarily holding remand prisoners but with a significant number of sentenced prisoners who remain in High Down on a more long-term basis. HMP Downview is a female, closed training prison with a small YOI unit that is due to be closed. Back

199   Written evidence from the Prison Governors Association Back

200   Q 79; see also Behan, C and O'Donnell, I. 'Prisoners, Politics and the Polls', British Journal of Criminology, (2008) 48, pp 319-336. Back

201   Q 5 Back

202   Written evidence from HM Inspectorate of Prisons Back

203   The Government's evidence states that the total prison population in England and Wales on 30 June 2012 was 68,709 (including all British, Commonwealth and EU citizens aged 18 or over); the prison population in Scotland on the same date was 6,504, and in Northern Ireland 1,225. The total number of parliamentary electors in December 2012 was 46,353,900. Back


 
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Prepared 18 December 2013