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Prisoner Voting Quick Notes

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Prisoner Voting Constant conflation between: (i) considering the competence of the ECtHR to make such judgments, and; (ii) the substantive/penological/philosophical right to vote. A. Overview of the jurisprudence: Hirst v UK (No 2) held that Section 3(1) of the Representation of the People Act (1983) breached the right of prisoners to vote under Article 3, Protocol 1 of the ECHR.
? It is important to note that the ECtHR did not object to the notion of disenfranchisement as a punishment, merely the automatic and systematic nature of the blanket ban.
? In particular, they had issue with the lack of distinction between prisoners of different types with different sentences. While Hirst was a rather deferent judgment in that it afforded extensive discretion to the Member States (with proportionality as the single criterion), Frodl took a far more prescriptive approach.
? Here, the First Section mandated requirements that would have to be met before the right to vote could be withdrawn: (i) lengthy term of imprisonment, (ii) direct link between conviction/disenfranchisement, and (ii) imposed by a judge. o Arguably, this followed the Court's reasoning to its logical conclusion, but meant that the right to vote would only be removed in the exceptional case of a crime which directly related to the electoral process.
? However, Scopolla and then (specifically in relation to the UK), Greens & MT v UK, re-affirmed the advisory nature of Hirst. o 'The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed'. o This may be attributed to a fragmented approach of the differing Chambers (Hunt). McHugh v UK recently confirmed the incompatibility of the UK's position, though did not order costs or damages.
? This could have exerted great pressure on the UK and might be seen as respecting the margin of appreciation. B. Philosophical ambiguity Issue is that the entire debate is based upon a genuine and reasonable disagreement as to the purpose of imprisonment and disenfranchisement.
? In particular, the distinction noted by Lazarus between personal and residual liberty: while personality liberty undertakes a proportionality analysis viewing the criminal sanction as a whole, residual liberty is restricted to the view of what is needed for the effective administration of imprisonment. o Paterson: 'men go to prison as punishment, not for punishment'. Test of punishment/test of imprisonment.
? Seen in the difference between Mellor (sanction as a whole) and Daly (residual liberty). General argument is that 'individuals who break the law should not be allowed to choose the representatives who make the law.'
? However, an individual may break the law for a number of reasons, it does not lead to the conclusion that they are incapable of making a reasoned judgment and contribute to the making of law. Appears to be a practice of 'rights-trivialisation' in failing to recognise that the right to vote is a fundamental human right (King).
? While this does not necessarily prevent it being taken away - liberty is also a fundamental right - it does indeed require greater and more direct reasons.
? It is difficult to construe the arguments as effectively translating in this way - i.e. in taking away the right to vote in particular. King addresses why specifically the right to vote is targeted. Penal policy is clearly not on a tit-for-tat basis, though if it were, would not translate.

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