27 August 2009

FOURTH SECTION
Application no. 8195/08
by Ciaran TONER
against the United Kingdom
lodged on 29 January 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Ciaran Toner, is an Irish national who was born in 1979 and lives in Belfast. He is represented before the Court by McCann & McCann, a firm of solicitors based in Belfast.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
By application dated 31 January 2007, the applicant sought inclusion on the electoral register for Northern Ireland. The applicant was at the time of the application a serving prisoner, detained in HM Prison Maghaberry. The application was made in view of the pending elections to the Northern Ireland Assembly, to be held on 7 March 2007. The deadline for registration in order to vote in the elections of 7 March 2007 was 11 January 2007.
By letter dated 12 February 2007, the application was refused. The Chief Electoral Officer for Northern Ireland concluded that by virtue of sections 3 and 4 of the Representation of the People Act 1983 (as amended) the applicant was legally incapable of voting as a result of his status as a convicted person currently detained.
The applicant lodged an application for judicial review of the decision of the Chief Electoral Officer. He sought various forms of relief, including a declaration that the disqualification on convicted prisoners voting contained in sections 3 and 4 of the 1983 Act did not apply to the forthcoming or any future election to the Northern Ireland Assembly; a declaration that he was entitled to vote in the forthcoming and any future election in the Northern Ireland Assembly; damages for breach of his rights under the Convention; and a declaration that Article 4 of the Northern Ireland Assembly (Elections) Order 2001 (see relevant domestic law, below) was not compatible with Article 3 of Protocol No. 1 and should not be applied to the forthcoming or any future election to the Northern Ireland Assembly
In the context of the judicial review proceedings, counsel for the Government submitted that even if, in light of the Court’s judgment in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005‑IX, the Government pursued the option of permitting some prisoners to vote depending on the length of their sentence, they were unlikely to propose that prisoners serving sentences as long as the applicant’s should become entitled to vote whilst detained. It was further pointed out that the applicant had failed to submit his application to be enrolled on the electoral register by the deadline for participation in the elections of 7 March 2007.
On 2 March 2007, the High Court of Justice of Northern Ireland dismissed the application for judicial review. Gillen J considered that the judgment in Hirst v. the United Kingdom gave a margin of appreciation to the United Kingdom in deciding how to ensure respect for the rights guaranteed by Article 3 of Protocol No. 1. Accordingly, he found that:
“The consequence of this is that not only is [counsel for the Government] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained, but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote.”
Gillen J added:
“Notwithstanding their knowledge since November 2006 that an election was to be in the near future, these proceedings were not launched until 15 February 2007 at a time when the granting of the relief sought would have caused potentially the maximum confusion, disruption and waste of public money already incurred. This is particularly pertinent in the context of both applicants having failed even to apply to register to vote in time. These factors alone should extinguish any smouldering sense of injustice harboured by these applicants at this time.”
The applicant was released from prison on 11 April 2007.
Leave to appeal to the Court of Appeal was refused on 6 June 2007.
On 23 October 2007, the House of Lords refused leave to appeal.
B.  Relevant domestic law and practice
Section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides:
“(1)  A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.”
The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)(a)) or to those imprisoned only for default in, for example, paying a fine (section 3(2)(c)).
Section 4 of the 1983 Act provides:
“(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he–
(a) is resident in the constituency or that part of it;
(b) is not subject to any legal incapacity to vote (age apart);
...
(3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
...”
The Northern Ireland Assembly (Elections) Order 2001 provides as follows:
“4. A person is entitled to vote at an Assembly election in a constituency if on the day of the poll he would be entitled to vote as an elector at a local election in a district electoral area wholly or partly comprised in that constituency.”
Section 3 of the Human Rights Act 1998 provides as follows:
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
...”
Section 4 of the Human Rights Act 1998 provides:
“(1)  Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
...”
In Smith v. Scott2007 SLT 137, the Registration Appeal Court in Scotland considered the refusal of the Electoral Register Officer for Clackmannanshire, Falkirk and Stirling to enrol a convicted prisoner on the electoral register on the basis of sections 3 and 4 of the 1983 Act. The court declined to “read down” section 3 of the 1983 Act under section 3 of the Human Rights Act 1998 in order to render it Convention-compliant. It therefore upheld the refusal of the Register Officer to enrol the appellant on the electoral register. However, it made a declaration of incompatibility in respect of section 3 of the 1983 Act.
COMPLAINT
The applicant complains under Article 3 of Protocol No. 1 of the Convention about the refusal by the Chief Electoral Officer to enrol him on the Electoral Register for Northern Ireland and his resulting non-eligibility to vote in the elections to the Northern Ireland Assembly in March 2007.

QUESTIONS TO THE PARTIES

1. Can the applicant claim to be a victim of a violation of the Convention, within the meaning of Article 34?

2.  Has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to vote in free elections which ensure the free expression of the opinion of the people in the choice of legislature (see Hirst v. the United Kingdom (no. 2)[GC], no. 74025/01, ECHR 2005‑IX)?

3. In particular, did the elections to the Northern Ireland Assembly concern a legislature, within the meaning of Article 3 of Protocol No. 1?