Prisoner's legal fight to vote may open floodgates

• Case for a single prisoner could force a change in the "Dickensian" law

• Could put Scotland in line with Ireland and Denmark

• Discriminating between hard and petty crime is possible

Key quote

"I think it’s inevitable they will get the right to vote. As the law stands, if a person is in prison for breach of the peace at the time of an election, he would not be allowed to vote. He would be dealt with in the same way as a murderer." - TONY KELLY, SOLICITOR

Story in full TENS of thousands of prisoners in UK jails could be given the right to vote, overturning more than a century of legal tradition, if a landmark Scottish court challenge is successful.

The controversial action by a former prisoner in a Scottish jail claims that denying inmates the right to vote breaches human rights legislation.

Experts say that a decision in favour of the inmate could force a change in the law and pave the way for all British prisoners - who number almost 80,000 - to vote in elections.

Tony Kelly, a solicitor whose client has raised the action, said he had no doubt that offenders would be given voting rights because current legislation was in breach of the Human Rights Act.

He said: "I think it’s inevitable they will get the right to vote. As the law stands, if a person is in prison for breach of the peace at the time of an election, he would not be allowed to vote. He would be dealt with in the same way as a murderer."

His client, William Smith, lodged the claim while serving a short sentence at Glenochil Prison in Clackmannanshire. He has since been released but has been granted legal aid to press ahead with his test case at the Court of Session in Edinburgh.

The action, which is due to be heard in February, could force Britain to fall into line with other European countries such as Ireland and Denmark, which do not disenfranchise offenders of any kind.

Clive Fairweather, a former chief inspector of Scotland’s prisons, said: "I do think inmates should be able to vote. Even if you lose your freedom, you should still have the right to say something about the running of your country.

"This [the existing system] is Dickensian in the extreme. Even if you are a murderer, it doesn’t mean you have lost your mind."

However, Joe Duffy, whose daughter Amanda was murdered in Hamilton in 1992, said he felt uncomfortable at the prospect of convicted felons influencing the outcome of a general election.

He said: "If their liberty has been removed, they should lose their right to vote because they have committed a crime against society. I can’t see a reason for making sweeping changes to our legal system. There are a lot more pressing items to be resolved."

Professor Robert Black, a law lecturer at Edinburgh University, warned there would be fierce opposition to changing more than 100 years of legal tradition. He said: "This would require a major change in legislation. You can imagine people will not be happy about this. Families who have lost loved ones will say their child never reached the age of voting and yet a murderer would be given the right to vote."

In March, human rights judges at the European Court in Strasbourg said it was wrong to ban prisoners from voting in elections. It was a legal victory for the killer John Hirst, who was serving life for manslaughter in an English prison. He received about 77,000 in legal aid over 12 years of campaigning and was awarded 8,000 in costs.

Legal experts predicted yesterday that the Hirst ruling would strengthen Smith’s case.

"In the light of the Strasbourg ruling, they may have a stronger case," said one legal source. "On a point of law, I think Smith will win. The Court of Session will almost certainly have to follow the European Court’s ruling."

If that happened, it would put huge pressure on the UK government to look at a change in legislation on prisoner voting, the source said.

The Department of Constitutional Affairs is appealing against the Strasbourg decision and a spokesman said it would watch closely the outcome of the Scottish case.

Smith was initially refused the right to vote following a ruling at Alloa Sheriff Court last year. Russell Taylor, the depute electoral registration officer in Stirling, said he had no choice but to turn down his application to vote.

Mr Taylor explained: "He wrote to us and said he wanted to register his vote. As the law stands, we cannot give him the ballot. Over the years we’ve had a couple of letters from prisoners saying that they want to vote, but nobody has taken it this far."

Sentenced inmates have been banned from voting in the UK since 1870, but other European countries demonstrate a broad range of practices on a prisoner’s right to vote.

Eighteen European nations, including the Netherlands, Spain, Sweden and Switzerland, have no form of electoral ban for incarcerated offenders. In other countries, electoral disqualification depends on the crime committed or the length of the sentence. In France, certain crimes carry automatic forfeiture of political rights.

MPs confirmed the general ban on British prisoners voting in 2000, when the Representation of the People Act gave those awaiting trial the right to vote. But the Strasbourg judges considering the Hirst case said they "had doubts about the validity" of the government’s belief that the ban punishes offenders and enhances respect for law.

Before the Human Rights Act, people who claimed their rights had been breached had to take their cases through the tortuous process of the European Court at Strasbourg. Now Scottish courts are able to strike down any decision which breaches the human rights convention.

The act has had far-reaching effects on trials, public services, equality at work, the police and even schools and hospitals. Judges can use the Human Rights Act to over-rule ministers and any private firm or charity providing a public service.

BARS TO TAKING PART

BRITAIN’S ban on prisoners voting dates back to the 19th century. Linked to the notion of "civic death", the Forfeiture Act of 1870 denied offenders their rights of citizenship.

Like the United Kingdom, Russia and Japan excludes all convicted prisoners from voting, while any inmates can vote in Denmark, Ireland, Israel, the Netherlands, Spain, Sweden and Switzerland.

Electoral disqualification can depend on the nature of the crime or the length of the sentence - Austria, Malta and San Marino ban all prisoners serving more than one year.

In France, certain crimes are identified which carry automatic forfeiture of political rights. Germany’s ban extends only to prisoners whose crimes target the integrity of the state or the democratic order, such as political insurgents. In Greece, only lifers are denied their ballot box rights. In Australia, prisoners can vote in two of seven states, while in the United States, some prisoners are banned from voting even after their release from jail.

Human rights campaigners have long argued for a distinction to be drawn between petty criminals serving short sentences and long-term prisoners.

TANYA THOMPSON