John Hirst is scum. Not long after serving a five stretch for arson, he bludgeoned his landlady to death with an axe. Sentenced to 15 years inside. In the end he served 25 because he continued to offend behind bars. So what do you do with someone like that? If the European Court of Human Rights has its way, give him the right to vote. Just because he has committed brutal crimes doesn’t mean he shouldn’t be allowed to influence the laws he has no intention of obeying.
This is a slightly controversial decision. To say the least. Despite having had five years (and counting) to follow the ECtHR’s recommendation, Parliament has not repealed the long-standing statutory ban on prisoner voting. Indeed, Parliament has voted near-unanimously to ignore the ECtHR decision; legal advice to the Government suggests that the Government can ignore the decision …
There is a belief that ECtHR decisions bind the courts in Britain. This is not true; one of the ironies about the implementation of the Human Rights Act 1998 – bringing ECtHR jurisprudence into British jurisprudence – is that it mandates the Supreme Court to consider the decisions from Strasbourg. Not follow. ECtHR decisions do not bind. Lord Phillips was clear; there will be occasions when the domestic court “has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process”. Or, in less polite terms, the ECtHR goes barmy.
Rare occurrences, says Lord Phillips; however they seem to be becoming a bit more common. The Al-Khawaja case for example. An ECtHR decision that states convictions are unsafe if based on evidence that the defendant cannot cross-examine. All well and good, one wants to have a fair trial, after all; but Mr Al-Khawaja could not cross-examine the victim because she had committed suicide. Does this mean that a defendant can get away with murder by murdering all the other witnesses pre-trial? It’s fair to say the ECtHR had not really thought it through.
And didn’t the Supreme Court let them know it. In R v Horncastle, the defendants sought to have their convictions quashed as they were found guilty largely (or solely) based on dead or scared (or dead scared) witnesses. The same set of facts in Al-Khawaja. The Supreme Court – in a seven-judge unanimous decision – ripped into the ECtHR. Phillips LJ pointed out a few areas in the Al-Khawaja case where Strasbourg had gone wrong. Common law protected this sort of evidence looooong before the ECtHR was a twinkle in a jurist’s eye. Parliament has amended and secured those protections over the years. Strasbourg recognizes that there are some exceptions allowed to the right to cross-examine a witness; however Strasbourg has confused itself up its own fundament. And so on and so on. One of the nine – nine! – separate grounds on which the Supreme Court found that the ECtHR was very, very wrong was that the continental judges worked in jurisdictions that did not have the same protections in place…
So, back to Hirst. The ECtHR has basically told Parliament to amend the law. Parliament has thus far refused to do so. That means prisoners are lining up to have a go. One claim has already been heard in Court. Can’t lose, based on Hirst? Can lose, based on Horncastle. And did lose. Doesn’t help that the lead claimant (a Mr Hydes, taking over from a reluctant Tovey) decided that he didn’t actually want to appear in Court, and turned down the chance for a day pass to present his case. Even without the proponent of the case, the Court proceeded. It looked at the law; the statute banning prisoners from voting could not be interpreted in a Human Rights Act-friendly way, so banning Hydes from voting couldn’t be twisted as a breach of English law. The ban was 100% compliant with English law. So the only way out was to take it to Europe. Compensation? No. There was no compensation payable for not giving him that right – even the ECtHR had not gone that far. Claim dismissed.
The claim may yet go further, but we are entering into interesting constitutional grounds here. The Supreme Court has expressed trenchant criticism of the ECtHR. Hoffman LJ, not generally considered the most conservative of judges, has been scathing in some of his comments as to the intellect of the European judges; difficult to disagree when one stated that it's effectively a human right to break an unpopular law if a lot of people do it – which would make murder legal in some parts of the world. There have even been judicial comments that some of the ECtHR judges don’t understand basic principles like precedent. With a Supreme Court openly contemptuous of Strasbourg jurisprudence, and a British court system seemingly more willing to “take account” of ECtHR decisions only to use them as snotrags, surely there must be a concern that the ECtHR will end up harming its own raison d’etre. How can the ECtHR improve human rights in places that genuinely need improvement, when its decisions are becoming more and more divorced from reality?