Tovey & Ors v Ministry of Justice [2011] EWHC 271 (QB)

[2011] EWHC 271 (QB)Case No HQ10X03312
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/02/2011
Before
MR JUSTICE LANGSTAFF
Between
ANTHONY TOVEYClaimantsPAUL HYDESClaimantand OthersClaimantMINISTRY OF JUSTICEDefendant
Jason Coppel (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 9 th. February 2011
Judgment

Introduction

[1]On October 6th. 2005, the Grand Chamber of the European Court of Human Rights issued its judgment in the case of Hirst v UK (C 74025/01), reported at (2006) 42 EHRR 41. It found that the UK had violated the rights of the applicant, a serving prisoner, by subjecting him to a ban on exercising the vote during his time in custody which extended to all serving prisoners irrespective of the offence they had committed, the time for which they were imprisoned, and without any court having decided that in the particular case before it a ban on exercising such rights was appropriate. The ban derived from an application of the provisions of s.3 of the Representation of the People Act 1983, to which I shall come later.[2]In proceedings by prisoners subsequently heard in Scotland (Smith v Scott [2007] SC 345) Northern Ireland (R v Secretary of State ex parte Toner and Walsh [1997] NIQB 18) and in England and Wales (Chester v Secretary of State for Justice and Wakefield Metropolitan District Council [2010] EWCA Civ 1439) the relevant Secretary of State has expressly accepted that domestic statute law which provides that any prisoner, whatever his circumstances, has no right whilst a prisoner to vote is incompatible with the European Convention on Human Rights and Fundamental Freedoms. The court has been told See e.g. paragraph. 2 of the judgment of Laws LJ in Chester that the government proposes to seek amending legislation in response to the decision in Hirst but has not yet done so, despite the lapse of over 4 years since it was issued.

The Present Claims by Serving Prisoners: Procedural History

[3]The General Election in May last year seems to have brought the grievance of many prisoners denied the vote to a head. On 20 May 2010, Mr. Tovey was the first of a rapidly expanding cohort of prisoners to issue a claim, seeking both damages for being deprived of the vote (to be assessed by the court) and a declaration that his rights under Article 3 of the First Protocol to the Convention had been breached. As at 10.30 a.m. on 9th. February I was told 585 claims in total had been issued, though this was clarified the next day by letter as being 583, and I was told that around 1,000 further claims are anticipated, since in that number of cases a prisoner has written a pre-action letter warning of his intention to take proceedings unless the wrong is remedied. One of the 583 is Mr. Paul Hydes, the second claimant specifically named in this judgment.[4]So many cases were issued, in several different court locations, that an application was made by the Treasury Solicitor for an order that all the claims should be transferred to the High Court in London, be consolidated, and for a “lead” case to be identified which the Defendant proposed should be subject to an application to strike out the claim (or alternatively enter summary judgment for the defendant), anticipating that all the other cases in the cohort would stand or fall by the success of the lead case in resisting that application. On 3rd September 2010 this was granted by Tugendhat J. Mr. Tovey’s claim was identified as the lead case, upon the basis that it was the first in time to be made.[5]On 15th October 2010 the Defendant served the application. A witness statement from Lisa Marie Fox accompanied it. This set out the grounds for the application.[6]On 4th November 2010, Mr. Tovey made an application for funding to permit him representation at the hearing of this application. On 6th December, he wrote asking that the application be adjourned, since the European Court had just decided the cases of Greens & MT v United Kingdom (Appns. 60041/08 and 60054/08; judgment 23rd November 2010). No adjournment was ordered. Then, on 6th. January 2011 Mr. Tovey signed a notice of discontinuance of his claim, which was received by the Treasury Solicitors on 13th. January 2011.[7]Mr. Justice Tugendhat directed on 1st February that the questions whether Mr. Tovey required permission to discontinue, and if so on what terms it should be granted, should be decided at the hearing.[8]Part 38 of the Civil Procedure Rules provides, under the heading “Right to discontinue claim” (so far as material) that:
“38.2(1) A claimant may discontinue all or part of a claim at any time. (2) However – “(c) where there is more than one claimant, a claimant may not discontinue unless – (i) every other claimant consents in writing; or (ii) the court gives permission.”
[9]The rules therefore provide that unless there is more than one claimant the consent of the court is not required. Discontinuance is as of right. When Mr. Tovey issued his claim, he was alone as a claimant. However, the court on 17th September 2010 ordered that:- “any claims that an individual had been denied the right to vote by virtue of s.3 of the Representation of the People Act 2003 (sic) or s.3 of the Representation of the People Act 1983…” And “any claim that such denial of the right to vote is incompatible with Article 3 of the First Protocol to the European Convention on Human Rights, as given effect by the Human Rights Act 1998, and that the Secretary of State has failed to respect the rights of the Claimant in that he has failed to implement the Grand Chamber judgment of Hirst v United Kingdom (No.2) and has deprived the Claimant of the opportunity of casting his vote in a secret ballot”; Or “any claim for damages or a declaration arising out of the same” should be consolidated under case number HQ10X03312 – Anthony Tovey’s claim.[10]The effect of this consolidation is in my view to render Mr. Tovey no longer a single claimant in a single claim. To discontinue therefore requires the consent of the court: rule 38.2(2)(c). This involves reading “claimant” as extending to all those who by consolidation have been allied to the claim under one number. This is a natural reading.

(b) interprets any rule…”

[11]The overriding objective is set out in Part 1, and provides (so far as relevant to this case):
“(2) Dealing with a case justly includes, so far as is practicable – (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.” (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
[12]Where there is group litigation, or a large number of claims which raise the same core issues, then a test claim may be identified as the cheapest way to resolve those issues. This depends upon it being heard in a manner that best makes for a full consideration of the issues, but without the disproportionate expense, expenditure of additional time, and difficulties for the resources of the courts which hearing a large number of individual claims individually is likely to involve. Individual litigants may have their own reasons for wishing to pursue their claims no further – whether because they no longer have appetite for the argument, or have reached an acceptable accommodation with the opposing party, have lost capacity to sue, or for other more personal reasons. If a test case is to be heard without taking undue time, and expense in doing so, it is likely to be important that the test claimant does not drop out. It may be politic to ensure that where there is a substantial cohort a manageable number of cases is ordered to be heard together to ensure that if one or two “drop by the wayside” the issues at stake may still be argued between those that stay the distance (and here Mr. Hydes was told he was to be at court, and was served with the Defendant’s application and Mr.Coppel’s skeleton argument so that he was in a position to argue the issues should the court accede to Mr. Tovey’s application): unless this happens, then if rule 38(2)(c) were to be interpreted so that where a test claimant with whose claim others had been consolidated issued a notice of discontinuance his claim would automatically end, the vices of additional expense, delay, and disruption to the court timetable would be likely to occur. These considerations fortify my view that the rules should be interpreted to give the court control over the withdrawal or otherwise of a test claimant where there has been consolidation of the claims.[13]In the event, I allowed Mr. Tovey’s application. He had not wanted to come to court. He was not represented, so presentation of the case against that of the Secretary of State depended upon his enthusiasm, preparation, and willingness to engage with the arguments. To bind some 1500 other claims to the result in a case in which he did not wish to participate would potentially be unjust if a reasonable opportunity could have been afforded to another of the cohort to make the arguments instead.[14]I did not consider that public money and the time of prison officers would be well spent in bringing him to court for the sake of formality when he had no wish to be there or to contribute meaningfully once he was. Effectively to compel his attendance at court to require him to make an argument he did not wish to make would be wrong.[15]Mr. Hydes was therefore constituted the lead claimant. He had shown no reluctance in advance to be involved. However, when the hearing began, it transpired that he had refused to leave prison to be brought to court, as the production order in his case required. I asked that evidence of this be provided to the court before judgment, and have been provided with a copy of a statement of Michael Pretorius of 10th February 2011. He records that Senior Officer Baker at Pentonville Prison told him that he was met with a refusal by Mr. Hydes to enter his prison transport. No reason was given for this by Mr. Hydes.[16]The Secretary of State asked me to proceed. I agreed. On the face of it, there was a determined refusal of an opportunity to participate in the hearing, without good reason (none having been advanced). A party is not guaranteed (by Article 6 of the Convention, or common law) that a hearing relating to their case will take place in their presence: but is generally entitled to a reasonable opportunity to be present. I am satisfied Mr. Hydes has had that, and rejected it, and that it is in the interests of justice generally that the case should proceed. In particular, if I should conclude that the Secretary of State’s arguments are so strong that the test claimant cannot hope to succeed, this may help to avoid further expense in other cases, and will give an opportunity for those who might otherwise think they have a claim to reconsider their position on an informed basis. Since claims are being notified daily this is an important consideration. It may also give focus to any consideration by the Legal Services Commission of potential funding for any such claim.[17]Two further reasons support a decision to proceed to a hearing, as invited by Mr. Coppel, arising from the fact that he seeks the striking out of Mr. Hyde’s claim. Part 3 of the Civil Procedure Rules permits the court to move to strike out a claim on its own initiative, giving three days notice: and provides that it may make such an order without hearing the parties or giving them an opportunity to make representations (Rule 3.3(4)) provided only that the party concerned is told in the order that he has a right to apply to set aside, vary or stay the order (rule 3.3(5)). The order sought in this case provides that in the event that Mr. Hydes’ claim is struck out, then claimants whose claims were consolidated with his have 4 weeks within which to show cause why their claims should not be struck out. This means that if I conclude Mr. Hydes’ claim should be struck out as having no reasonable prospect of success, this decision will not adversely affect any claimant who considers I have overlooked an argument in his favour (or simply not had it drawn to my attention because Mr. Hydes was not here to do it). That claimant may raise an argument that the judgment in Mr. Hydes’ case should not apply to him: and if the point is arguable, will be permitted by the court to argue it. (This is not an invitation to prisoners to show cause simply for the sake of it: for unless there is a real argument, permission will not be granted: but the point is that the argument any one might wish to raise will have the proper consideration of a court). Proceeding in Mr. Hydes’ absence, therefore, is something for which provision is made in the rules, and is appropriate in application of the overriding objective for the reasons I mentioned above, subject to one matter – that of equality of arms – to which I shall come.[18]The second reason is that a feature of this application to strike out is that it turns on an argument which is one purely of law. The facts which are relevant (that the claimant was a prisoner at a time when if he had been at liberty he could have exercised his vote, and was prevented from doing so by the Defendant’s application of the law as he understood it; that the Government accepted that the blanket prohibition on voting was incompatible with the Convention, but had not moved to alter it, though had indicated that intention) are not in dispute. There was no argument as to fact in respect of which the absence of Mr .Hydes might make a difference.

Legal Representation and Adjournment

[19]At some stage of his claim Mr. Tovey had the advice of Jackson & Canter, solicitors. On 31st January they wrote to the court, stating that they were advising him, but were not in a position to go on the record. They had made an application for public funding on 31st. October 2010, but the Legal Services Commission had not processed the application (which was anyway being discontinued). They had chased the LSC on 23rd. December, to be told the LSC had not received the application which was resubmitted. Further action chasing a decision had been met with no meaningful response. That was until the Monday before the hearing on Wednesday, when the LSC wrote to Jackson & Canter to say that Mr. Tovey’s application had been refused as a final decision on funding had not been made by the LSC in the case of Chester, a decision of the Court of Appeal in November 2010 in relation to prisoners’ enfranchisement to which I shall refer below, which supports the Secretary of State’s arguments. It appears from that letter that(a) consideration has been given by Mr.Chester and his lawyers (including leading counsel) whether he should seek to appeal to the Supreme Court,(b) the LSC has taken a decision not to fund an application for permission to appeal, or appeal if permitted, and(c) Mr. Chester is appealing the LSC’s decision not to fund him.[20]Thus Mr. Tovey had no legal representation to advance any of the legal arguments that might be available to him. Nor did Mr. Hydes. Nor did it appear that any of the cohort of over 500 claimants had the benefit of legal representation. I was concerned that the parties were not on an equal footing: the Secretary of State had a team of lawyers, headed by Mr. Coppel, who had a junior (Joanne Clement) though she did not appear at court. The argument is a legal one. The claimant had no lawyer to put his case.[21]I considered whether to adjourn the proceedings of the court’s own motion to enable legal representation to be made available. I decided not to do so for the following reasons:(a) Mr. Hydes had not asked the court to adjourn so that he might obtain legal representation. He had had time within which he could have done so, had he wished it;(b) Adjournment seemed unlikely to secure representation when it appears from the history I have set out above that the LSC had decided not to fund any of the claimants,(c) The position of any prisoner affected by my decision in Mr. Hydes’ case is protected by the mechanism described above in paragraph 17 if I should find against his argument – the four weeks provided for is time within which he should be able to obtain legal advice and if necessary a promise of representation which would permit a court to allow him further time if appropriate.(d) It was generally desirable in application of the overriding objective in CPR Part 1 to proceed with expedition, and it was both likely to save costs and the resources of the court, and give greater certainty to other potential claimant prisoners waiting in the wings as to whether they too should incur their own expense, and put the State to cost. These factors counterbalance the imbalance of representation.(e) Many of the arguments have been addressed consistently by the courts of Great Britain and Northern Ireland, with the advantage of legal representation, so that I can be reasonably confident that the court can identify the relevant arguments.[22]Accordingly, the case proceeded.

The Law

[23]The application made by the Secretary of State is to strike out Mr. Hydes’ claim. The power to strike out a statement of case is conferred by Rule 3.4 of the Civil Procedure Rules. This provides by 3.4(2) that :
“(2) The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing … the claim”
Alternatively, the Secretary of State sought summary judgment in his favour on the claims. Part 24 provides, so far as material:
“24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if - (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or…….. (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
[24]The claim which it is said should be struck out, and/or summary judgment given in favour of the Secretary of State is for “being prohibited from voting in the May 2010 General Election”. Mr. Hydes claimed damages of “no more than £5,000, to be decided by the court”. His claim is based on the Hirst decision, and the failure of the Government to honour its undertaking given in Article 46(1) of the Convention to “abide by the final judgment of the Court in any case to which [it is a party]”, which it is said infringes his rights under Article 3 of the First Protocol in Part II of Schedule 1 to the Human Rights Act 1998. Article 3 provides:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
[25]The claim is made on two bases: first, that Mr. Hydes had a right to vote, pursuant to Article 3, which has been denied him; and second, that the State has wrongly failed to implement the final judgment in Hirst, either speedily or at all. He argues in his particulars of claim that these failures entitle him to damages, since a declaration that his rights have been denied would not provide “just satisfaction” (to which he is entitled under the Convention) despite the European Court in Hirst thinking that a declaration was sufficient in that case: he thus essentially seeks damages on a punitive basis against the State, though it might perhaps be argued that the effects of denial of a right are aggravated by its continuation, and that this requires recompense even though the original denial on its own did not.[26]Although the argument derives from European caselaw in respect of the Convention, the claim is said to be based in English law (see paragraph 7 of Hydes’ claim, as in paragraphs 9 and 10 of the claim which had been brought by Mr. Tovey).[27]The right in English law to claim in respect of a failure by a public authority to respect or afford rights secured by the Convention is conferred by the Human Rights Act 1998, sections 6 and 7. Section 7 provides:
“(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.” but only if he is (or would be) a victim of the unlawful act.”
[28]That refers back to s.6. That provides: “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament (………) (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) “An act” includes a failure to act but does not include a failure to— (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order.” (………)[29]Mr. Coppel’s argument for the Defendant is that these sections do not permit a claim in Mr. Hydes’ case. Insofar as the claim is that he has been denied a right to vote, he cannot show that the Secretary of State acted unlawfully, for s.6(2) expressly provides that s.6(1) does not apply (i.e. he has not acted unlawfully) where “as a result of one or more provisions of primary legislation, the authority could not have acted differently” (s.6(2)(a)) or that he was acting so as to enforce provisions of primary legislation which, though incompatible with the Convention, could not be read down so as to be interpreted in a way which would permit him to act otherwise (s.6(2)(b)).[30]Insofar as the claim is that the (Secretary of) State has failed to act to amend the legislation (assuming it cannot be interpreted compatibly with the Convention), Mr. Coppel relies on the terms of s.6(6). A failure to promote or introduce legislation is not something which amounts to an “act” so that section 6(1) makes it unlawful.[31]The first argument assumes that the legislation disenfranchising prisoners prevents the Secretary of State from acting otherwise than he did. The second assumes that the legislation is incompatible with the Convention, so as to require amendment if the UK is to honour its Convention obligations. It is therefore necessary to consider those provisions, and to do so in particular in the light of s.3 of the Human Rights Act 1998. Under the heading “Interpretation of Statutes” this provides:
“(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; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”
[32]Because of the effect of s.3(2)(b), therefore, unless the primary legislation can be interpreted in such a way as to give effect to the decision in Hirst that Article 3 of Protocol 1 of the Schedule to the Convention was infringed by a blanket ban on any prisoner, whatever his offence, sentence or circumstances having the vote, it will apply.[33]The primary legislation in question is Section 3 of the Representation of the People Act 1983, headed “Disfranchisement of offenders in prison etc.” This 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 government election.”
[34]So far as elections to the European Parliament are concerned, the European Parliamentary Elections Act 2002 provides under the headings “Entitlement to vote” and “Persons entitled to vote” by section 8 (again, so far as material) that:
“(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5). (2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region, and—“ (various matters are then set out, which are immaterial because they are predicated on entitlement to vote in a parliamentary election, and thus throw the reader back to the s.3 of the 1983 Act)….” (subsections (3) – (5) deal with particular categories of person, none of which covers the case of a serving prisoner).”
[35]These provisions are clear. Statute provides that a prisoner may not vote, in any parliamentary, European or local election. Unless it can be interpreted so as to accommodate the decision of the European Court in Hirsta prisoner must be refused the vote.[36]The approach which I must follow to interpretation is encapsulated, succinctly, in paragraph 28 of the speech of Lord Bingham of Cornhill in Sheldrake v Director of Public Prosecutions [2005] 1AC 264 “28. The interpretive obligation of the courts under section 3 of the 1998 Act was the subject of an illuminating discussion in Ghaidan v Godin-Mendoza [2004] 2AC 557. The majority opinions of Lord Nichols, Lord Steyn and Lord Roger of Earlsferry in that case (which Baroness Hale of Richmond agreed) do not lend themselves easily to a brief summary. But they leave no room for doubt on four important points. First, the interpretive obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by R (Anderson) v Secretary of State for the Home Department [2003] 1AC 837 and Bellinger v Bellinger (Lord Chancellor Intervening) [2003] 2AC 467. In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110 to 113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplement the simple test enacted in the Act “so far as is possible to do so…” While the House declined to try to formulate precise rules (para 50), it was that cases in which section 3 could not be used would in practice be fairly easy to identify.”[37]Here, what the claimant would have to do to persuade a court that he should succeed is have it read a provision which provides that he is “legally incapable” of exercising the vote as though it provided instead that he was legally capable. The court would have to interpret and apply the legislation as though “No” could mean “Yes”. Such an interpretation on the face of it flies directly counter to the legislative wording. Nor could one simply ignore the negative as being somehow mistaken and out of kilter with the thrust of the legislation – for there is no other provision dealing with the position of prisoners which could provide the context necessary for any such argument to get off the ground. However great the imperative to adapt UK statutes to provide for fundamental rights basic to a democratic state (as determined by the European Court of Human Rights) to interpret the statute in this way would be a step too far – for it would, in Lord Bingham’s words, “change the substance of (the) provision completely, or would remove its pith and substance”.[38]There are further reasons why such an interpretation is simply impermissible here in law, however desirable its proponents may think it to be. In Chester [2010] EWCA Civ 1439, a prisoner challenged his statutory disenfranchisement from parliamentary and European elections before the administrative court. Burton J. rejected his claim. The Court of Appeal dismissed an appeal from his judgment.[39]The argument before the Court of Appeal had features not apparent before me from the particulars of claim in Mr Hydes’ case, submitting that the European Court’s decision in Frodl v Austria (C-20201/04, 8 April 2010) was to the effect that a judge had to take the decision to disenfranchise as part of the sentencing process where the crime justified it; but its essence (see paragraph 3 of the judgment of Laws LJ) was nonetheless that s.3 of the Human Rights Act 1998 required that the court should “read down” s.3 of the 1983 Act by the notional addition of words which would confer on the judiciary the function of deciding whether any given prisoner should be disenfranchised, or if that proved too rich meat because it would amount to constitutional legislation in the guise of textual interpretation, it should make a further declaration of incompatibility.[40]That argument was unanimously rejected. To hold that the statute gave a power to judges to decide if a prisoner should be disenfranchised required no authority for the court to conclude that it could not be achieved under the guise of interpretation “however supercharged by the Human Rights Act s.3” (para. 24).[41]The argument that the statute might be interpreted other than by writing in new judicial powers was not advanced in terms. It appears that it was common ground between the parties that if the argument based on Frodl were to be rejected, then it must be held that the 1983 Act was incompatible with the Convention – that is, that it could not be interpreted so that its “No” meant “Yes”: I derive this from the fact that the alternative remedy which leading counsel for Mr. Chester sought if his argument based on Frodlwere to be rejected was that the Court of Appeal should make a further One having been made in Smith v Scott. declaration of incompatibility.[42]This argument was however directly addressed by three senior Scottish judges (Lords Abernethy, Nimmo Smith, and Emslie) sitting as a Registration Appeals Court in Smith v Scott. William Smith was a convicted prisoner, serving his sentence when he applied to be registered as a voter. The electoral registration officer declined his application, once he realised that Smith was not being held on remand (remand prisoners have the vote). He appealed under provisions applicable in Scotland to the Registration Appeals Court. It rejected the argument: “..we do not accept that an interpretative exercise….is legitimately open to us in this case. In our opinion to read down s. 3(1) of the 1983 Act as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be, in the phrase used by Lord Nicholls of Birkenhead in Re S (Minors) [2002] UKHL 10 to depart substantially from a fundamental feature of the legislation.” (para.27) The Court declared the provisions of the 1983 Act incompatible with Convention rights.[43]A similar conclusion was reached by Gillen J. in R v Secretary of State ex parte Toner and Walsh [1997] NIQB 18. With an eloquent turn of phrase he “rejected the argument of [counsel for the applicants] that because a blanket prohibition on prisoners [having the vote] is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled. In my view that conforms neither with principle nor logic and certainly does not find any authority in Hirst which expressly recognises that restraints on Article 3 Protocol 1 are justifiable provided they pursue a legitimate aim and are proportionate”.[44]It may possibly be argued that there is no authority binding on me which requires me to hold that s.3 of the Representation of the People Act 1983 cannot be interpreted so as to permit Mr. Hydes to have the vote – since the domestic authorities which considered the issue are Scottish and Northern Irish, and the English authority is one in which the argument did not directly address the point. It was not submitted by Mr. Coppel that Chester constituted binding authority from which I could not depart.[45]If this argument holds good (which I do not need to determine for present purposes), it nonetheless does nothing to diminish the force of the combined reasoning in each of the three cases, which is all one way. Had there been no authority I too would have felt compelled to hold as both the Scottish Registration Court and Gillen J. did, and as it would seem leading counsel for Mr. Chester declined even to think worth arguing against. There is nothing to persuade me that, as I have put it above, the clear “No” in the words of the statute can be interpreted to mean “Yes”.[46]No domestic authority has, so far, considered the further question that arises in this case. The second way in which the claim is put is that the Secretary of State failed to amend the statute. It is claimed that this failure (as distinct from denial of franchise) justifies compensation.[47]The provisions of s.6(6) are against it. This provision cannot sensibly be subject itself to a reading down by interpreting it in a way which, though wholly impermissible in English common law, would advance the Convention right relied upon. There are a number of reasons for this:a. If the section was open to such an approach, it could not sensibly be interpreted here as providing for compensation. The words do not permit anything to be read in or reduced so that a failure to introduce a proposal for legislation, or make primary legislation, is not excluded from the scope of the word “act”: sub-section (6) is so clear that it cannot be read in any other way;b. But the section is not even open to the interpretative obligation in s.3. This is because that obligation derives from the self-same Act as contains s.6. There is no warrant to apply s.3 to s.6, as if one section were predominant over the other;c. It is also because the Act itself gives authority to the Convention in UK law, specifically within the limits set by that Act, of which s.6(6) is one;d. The section is not, in any event, that which prevents the claimant having the vote, which is the foundation of his claim. Its only relevance to the claimant’s case is that it prevents him suing for compensation, not for a breach of that right but a failure to introduce legislation to remedy it.[48]A further reason why the court might consider that the claim had no prospect of success was mentioned by Mr. Coppel, somewhat in passing. It was that the European court had determinedly turned its face against any monetary award for prisoners seeking enfranchisement. In Hirst (at para. 93) the Grand Chamber accepted the view the Chamber had expressed in these terms:
“The Court has considered below the applicant’s claims for his own costs in the proceedings. As regards non-pecuniary damage, the Court notes that it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case.”
[49]In Greens and MT v UK in which judgment was given as recently as 23rd. November 2010, the court adopted the approach it had taken in Hirst. Though expressing regret and concern that in the five years which had passed since the judgment of the Grand Chamber in Hirst no amending measures had been brought forward by the Government, the Court recalled so far as regards non-pecuniary damage was concerned that it had in the past examined claims by applicants that punitive damages be awarded both to reflect the particular character of the violations suffered by them and to serve as a deterrent in respect of violations of a similar nature by the respondent State, and that aggravated damages should be awarded to reflect the fact that they were victims of an administrative practice. The Court noted it had declined to make any such awards (in a substantial number of cases, set out in the judgment at paragraph 97), and similarly, did not consider that aggravated or punitive damages were appropriate in the present case. As to compensatory damages, it noted the recent decision of the Committee of Ministers, which made reference to the fact that “the new government is actively considering the best way of implementing the judgment” in Hirst (see paragraph 47 above), and that whilst it accepted that the continuing prohibition on voting might give rise to some feelings of frustration in respect of those prisoners who might reasonably expect potentially to benefit from any change in the law, nonetheless concluded that the finding of a violation of their rights constituted sufficient just satisfaction in the present cases, when viewed in tandem with a direction (under Article 46 of the Convention) that the UK must introduce legislative proposals to amend section 3 of the 1983 Act and, if appropriate, section 8 of the 2002 Act, within six months of the date on which the judgment in Greens becomes final, with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst according to any time-scale determined by the Committee of Ministers. (This effectively means before the 23rd August 2011).[50]Since Mr. Hydes’ claim is in respect of denial of any right to vote in the 2010 general election, there is no basis to suppose that the European court would take any different an approach in his case than in that of Hirst, or Greens, or any other case determined before the judgment was delivered in Greens. So far as his claim is for compensation, therefore, it seems very likely to fail.[51]That leaves only his claim for a declaration. Granting a declaration is a discretionary remedy. I doubt that a Court would consider that to do so in the present case would be to exercise that discretion appropriately, for in Smith v Scott a declaration had already been made that to withhold the vote from prisoners by virtue of a blanket ban was incompatible with a prisoner’s Article 3 rights, and there seems to be nothing of additional practical use which granting a declaration would serve. However, it may just be arguable that a court might be persuaded that it was a matter of personal importance to a prisoner to know that he had rights which were denied him, and to secure a declaration to this effect. Mr Coppel acknowledged this, and did not seek to argue that the Secretary of State should succeed in his application for summary judgment on the ground that a Court would most probably not grant the relief sought. This is at least arguable, even if a somewhat uphill struggle.

Observations

[52]The fact that this statute is incompatible with the claimant’s Convention rights arises because of the blanket nature of the ban, as both Hirst and Greens make clear. Those cases are not to the effect that the Convention requires a state to introduce the franchise universally to all prisoners. They expressly recognise that a state has a wide margin of appreciation in deciding the category of case or prisoner for whom a restriction on the right to vote would not be a disproportionate interference with his rights generally. Mr. Hydes was convicted in July 2009 of offences of burglary, robbery and firearms offences, for which he is currently serving a life sentence of imprisonment. The minimum term he must serve in prison before even being considered for release on parole is 4 years and 265 days. It is not obvious that however the margin of appreciation be exercised in honouring the Government’s international obligations he would be within a category which would then be enfranchised. It cannot therefore be said that if the incompatibility were removed he would then have the vote. All would depend on how, legitimately, Parliament chose to legislate. He might well remain outside the scope of the franchise.

Conclusions

[53]In conclusion, I hold that there are no reasonable grounds in domestic law for bringing a claim for damages or a declaration for being disenfranchised whilst a prisoner. Statute precludes it. Case-law is against it. European authority is against the payment of compensatory damages in respect of it. A claim for a declaration is not hopeless, but difficult. The fact the Secretary of State (or the State) has not acted to remedy the contravention identified in HirstandGreens does not itself give rise to a claim for damages, because the express wording of Statute prevents it. Even if he (or the State) had acted to fulfil the UK’s obligations, it is far from certain that Mr. Hydes himself would have had the vote, since there are many ways short of full prisoner enfranchisement which are capable of remedying the breach which Hirst identified.[54]These are all matters of law. On the law, as it stands, the claim by Mr. Hydes cannot hope to succeed. It must therefore be struck out. Alternatively, I would have held that the claim had no reasonable prospect of success upon the same bases (and certainly insofar as it is a claim for damages, do so on the additional ground that the European Court has held there to be sufficient “just satisfaction” without payment of compensation).

Costs

[55]The Secretary of State claims his costs of the action, against each of the claimants whose claims were consolidated with that of Mr. Tovey. He recognises that it would be wrong in principle to require him, or Mr. Hydes, to pay a disproportionate amount of the costs simply because they were the claimants whose cases were selected as lead cases, since it might equally well have been any other member of the cohort of cases. He therefore asks simply that the total costs be divided amongst all the claims thus far received, so that each claimant pays an equal share.[56]This would mean that a claimant whose claim was received today but before delivery of this judgment would be liable to pay the same as Mr. Tovey whose claim was issued nearly a year ago. It would also mean that someone who like Mr. Tovey no longer wished to pursue his claim would pay the same as if he had not sought discontinuance. Though these results may seem unjust, so too might it seem unjust that a claimant joining the cohort today might benefit from having his arguments resolved without expense to him, since another prisoner had shouldered that burden.[57]The costs of providing for a group where there have been one or two members selected to incur their own costs, and do so out of all proportion to the costs of others in that group, yet where the rewards of any litigation will be enjoyed equally by all, is not a new problem, though a relatively uncommon one. In Davies v. Eli Lilly & Co. [1987] 1 W.L.R. 1136 one such order was made. In the judgment of Lord Donaldson M.R. on appeal (at 1141) he observed:
“In these circumstances the judge decided to make a wholly novel order. In its detail it is of some complexity, but for present purposes it is only necessary to summarise its general effect. This was that, as from 8 June 1987, where particular plaintiffs incurred costs either personally or through the legal aid fund in pursuing lead actions, or thereby became liable to pay costs to the defendants, every other plaintiff should contribute rateably on a per capita basis. Those who have practised in the Commercial Court, of which Hirst J. is one of the judges, will recognise the age old respectability of such an order, based as it clearly is upon the Rhodian Law, the Rolls of Oleron and the maritime law of general average. But antiquity, respectability and indeed fundamental fairness is one thing — the power to make such an order is quite another. And here we come to the nub of this appeal. Before coming to that issue I should add that the judge recognised that in the months that lie ahead before a settlement or a final hearing circumstances might change. Thus some of the plaintiffs might decide to abandon their claims, so that instead of each plaintiff having to contribute 66 pence for every £1,000 of the costs of the lead plaintiffs (on the basis of 1,500 plaintiffs), the contribution might rise significantly. And other unforeseeable eventualities might arise making this order unfair or unduly burdensome. He therefore gave all the parties liberty to apply to vary the order if circumstances changed. Finally he rightly stressed that his order in no way fettered the discretion of the trial judge to make special orders as to costs between the plaintiffs or individual plaintiffs and the defendants or individual defendants. In essence what he was doing was providing for contribution as between plaintiffs in respect of costs incurred by them or liability for costs imposed upon them, subject always to retaining a right to vary that order if justice so required. He also recognised that some plaintiffs might not wish to accept even this very small percentage of what in total could be a very considerable liability and he therefore ordered that any plaintiff who wished to abandon his action could do so, each party bearing its own costs of that discontinuance if he did so before 8 June 1987.”
[58]This Order was made in advance of a final hearing, so that the parties might know what their position as to costs would be. Here, the case has been heard – save for any further submissions a disappointed claimant might wish to make if he can show cause why the principles in this judgment should not apply to him. It is nonetheless authority which strongly supports an approach of apportioning on some fair basis – and in default of any better information, on a per capita equal basis.[59]The jurisdiction to award costs is now conferred by the Civil Procedure Rules Part 44. Rule 44.3(1) states:
“The court has discretion as to – (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid”
A court must have regard to the conduct of the parties, amongst other considerations (44.3(4)(a)).

(b) the amount of those costs; and (c) when they are to be paid”

[60]It is undoubtedly the case that a party who discontinues having allied himself to a claim brought by another may nonetheless be called on to pay the entirety of the costs together with that other where that other is unsuccessful: see e.g. Actavis UK Ltd v Eli Lilly & Co Ltd [2010] EWCA Civ 43. All depends upon the particular circumstances of the case.[61]Here, I have concluded that each of those prisoners who have issued claims should be required to pay a proportionate share of the whole of the costs incurred by the successful defendant, assessed on a per capita basis. Their claims are (I am told) in common form, raising the same issues in two broad groups – those adopting the form used by Mr. Tovey, and those adopting that used by Mr. Hydes. Some do not make a claim specifically in respect of the 2010 General Election, but the logic of the strike-out appears to me to apply with equal force to them. No matter when each joined the group, he or she should be required to pay the same proportionate share – each would probably have expected the same “return” if (s)he had succeeded. This approach has the merits of simplicity, and, in ensuring equality, fairness. It adopts the general approach referred to by Lord Justice Donaldson.[62]There are however some exceptions. First, I do not think that Mr. Tovey should be required to pay the same full share as the others. He chose to withdraw. Discontinuance was not immediately permitted him, because of the need for a court decision in the cohort generally (see above), but once granted meant that he would not stand to profit in the litigation if it eventually succeeded. In my view he should be required to pay a lesser sum to represent this (though necessarily on a broad brush basis). It would not be fair to require him to pay an equal share when he has sought to avoid the costs incurred since the date of discontinuance, which include the bulk of those most closely associated with the hearing in front of me.[63]The costs schedule prepared by the Defendant comes to an estimated grand total of £43,902.50. I heard no detailed argument on costs, but have since received written submissions 17th. February from Joanne Clement from the Defendant seeking to add a further £1,968 (making a grand total of £45,870.50) so the observations which follow are ones I would be prepared to modify if good reason is shown either by the Claimant, any of the cohort (who will individually probably not have seen the costs schedule), or the Defendant.[64]The fee rates claimed are entirely reasonable. I have no reason to suppose that any of the individual items of time have not been expended as claimed. However, some of the items may at first sight be thought to represent an expenditure of time to an extent which goes a little beyond that which it would be reasonable to order the Claimants collectively to pay. Thus, for counsel’s advice in conference, last July, a total of 14 hours including pre-research is claimed (5 hours Mr. Coppel, 9 Ms Clement); the skeleton argument for the hearing (which was a commendably succinct document) is said to have taken 8½ hours (between Mr. Coppel and Ms .Clement) on top of which is an estimated additional 10 hours’ preparation for the hearing (at which in the event Ms. Clement did not appear), which seems likely to have been duplicative. What seems in the event to have been a relatively straightforward legal argument (if it had not been, the application could not easily have succeeded) has thus taken in total close to a working week of counsels’ time if time spent last July in initial research is included. However, the written submissions have satisfied me that first impressions are to some extent misleading. They tell me that a substantial proportion of the work undertaken by counsel prior to the filing of the application to strike-out was not on the legal argument aired at the hearing, but on the orderly management of the claims issued in various County Courts, in order to ensure that they could come before the High Court on the current application, and be managed in a convenient way thereafter. That was the principal subject for discussion and advice at the conference in July 2010. A large number of different claims raising similar factual and legal issues being commenced in many different courts around the country created novel difficulties, and there were a number of possible procedural options for managing the claims. Each of those options had advantages and disadvantages in terms of their complexity and cost and their likely value in ensuring the management of the claims in the most efficient and least costly way. Counsel’s advice was required in order to identify and then oversee the best procedural course, and persuade the Court of it. Nevertheless, if the Claimants had been present to argue the question of costs (in the light of these further submissions) they might well have argued that they should not pay for the full extent of the costs of the hearing itself as claimed, and submitted that two counsel were not actually needed for this case at this stage, whatever might have been the position last summer. Although I am grateful for the carefulness and thoroughness with which the case was presented, which was both apparent, and appropriate for a case likely to be in the public eye given an impending debate in Parliament, I have to consider what it would be proper to order the claimants each to pay, and have concluded that overall some slight moderation of the total amount claimed should be made. This is reflected in summarily assessing the costs that each claimant should have to pay as £76. Since there are as at 17th. February Source: costs submissions from Joanne Clement of 17 February 2011. 588 claimants, this comes to a total of £44,688.[65]I shall order that each member of the cohort (with the exceptions identified specifically below) shall have his claim struck out with payment by him to the Defendant of the sum in each case of £76 in respect of costs unless within 4 weeks of the receipt by him of this judgment (or, if currently at liberty, 4 weeks from the date the order made following this judgment was sent to him) he shows cause why a different order should be made either in respect of the striking out of his claim or costs or both.[66]In Mr. Tovey’s case, I summarily assess the costs he shall pay as being £50 (which represents a broad-brush assessment of his share of the costs up to the date he sought to discontinue).

Further Miscellaneous Matters

[67]A Mr. Haynes complained that he was not given the vote whilst he was held on remand. Remand prisoners are permitted the vote, whereas those serving a sentence are not. His claim thus involves different issues from those discussed above, and he should not have been made part of the cohort as he originally was (his name is not one of those counted as within the current 588).[68]Although the claim by Mr. Hydes referred specifically to the General Election, other claimants (Alderman (OMSO1597), Andrew Bailey (OMSO1437), Ashley Bailey (OMSO1539) and Brewster (OMSO2018) – all from Maidstone Prison - referred also to the European Parliamentary Elections. In other cases, which are being transferred from the local county courts where they began to the High Court by order of Tugendhat J., the Defendant cannot say that they are specific to any given election. The reasoning of this judgment however applies to all: if any one considers that despite this his case should be distinguished from the others in the cohort, and from Mr. Hydes’ case, he may show cause in accordance with the order which will follow.[69]Not all the claims were brought by those serving a sentence of imprisonment at the time. Some have been released – such as Colin Noddings (OGR00471), either after serving a claim form (e.g. Adrian Hicks (OGR00471) or before doing so. The same applies to them.[70]A draft order should be prepared for consideration by the court on the date given above for the handing down of judgment. This should annexe a current list of those who have lodged claims, and apart from those matters to which specific reference has been made in this judgment (which should be incorporated in the Order) should be in the same form as the draft accompanying the application. There is one further exception to this – where reference is made in paragraph 6 to “any future cases arising out of the same or similar facts…” this would be better expressed “unless and until the provisions of s.3 of the Representation of the People Act 1983 are repealed or amended, any future cases claiming damages and/or a declaration of rights in respect of a failure to accord the claimant voting rights whilst (s)he was serving a sentence of imprisonment….” .

Footnote

[71]The case was heard a day before Parliament debated whether it should introduce legislation to amend the 1983 Act. Though the subject matter of each is the same – the enfranchisement of prisoners – the role of the courts and of the legislature are distinct. It is no part of the court’s function to express any view as to the nature of legislative change, if any: merely to rule on that which the laws as currently enacted by Parliament require. This judgment is to the effect that, applying those laws, including the Human Rights Act 1998, a prisoner will not succeed before a court in England and Wales in any claim for damages or a declaration based on his disenfranchisement while serving his sentence.

Cited in 1 later judgment