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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pearson & Anor v Secretary Of State For Home Department & Anor [2001] EWCA Civ 927 (18 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/927.html Cite as: [2001] EWCA Civ 927

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Kennedy LJ and Garland J)

		Royal Courts of Justice Strand London WC2 Monday 18 June 2001

Monday 18 June 2001

1. LORD JUSTICE SIMON BROWN: The applicants are serving prisoners. Pearson is serving a determinate ten-year sentence. The other two are discretionary life-sentence prisoners who have completed the tariff part of that sentence. All are barred from voting in Parliamentary or local government elections by section 3(1) of the Representation of the People Act 1983. By these proceedings the applicants have sought to have that ban essentially declared unlawful by reference to the European Convention on Human Rights, most particularly article 3 of the First Protocol but also, to a limited degree, article 14 of the Convention.

2. Their applications failed before Kennedy LJ and Garland J in the Divisional Court on 4 April 2001. Their applications for permission to appeal were refused initially on the papers, first by Buxton LJ in the case of Pearson and Martinez on 15 May 2001 and then by myself in the case of Hirst on 7 June 2001. Both of us, in considering those applications, had the advantage of a very full skeleton argument from Mr Fitzgerald QC and Miss Kaufmann on behalf of Pearson and Martinez, which extended indeed to 43 pages. Buxton LJ refused permission in these terms:

"This appeal has no real prospect of success.

1. The appeal would appear to be unarguable in the face of the consistent and recently confirmed jurisprudence of the Commission, that is set out and relied on in paragraphs 13-17 of the judgment of the Divisional Court. That jurisprudence properly relies on and applies the general principles set out by the Court of Justice in Mathieu-Mohin 10 EHRR 1.

2. The Divisional Court was right to approach the Canadian authorities relied on by the applicant with caution, consistently with the warning given by Lord Hope in Brown v Stott [2001] SLT at p 81H. Quite apart from any other consideration, since Canada is a unitary state its jurisprudence necessarily contains no concept analogous to the doctrine of the margin of appreciation on which the Court of Justice placed such firm reliance in Mathieu-Mohin. However, the Divisional Court having gone into the Canadian material as a concession to the applicants, it was justified in pointing out that it was far from being uniformly helpful to them."

3. I adopted those same reasons for refusing permission in Hirst's case.
4. Despite having, more than once, carefully reread the skeleton argument in support of these applications, and having listened this morning to the very able submissions of Miss Kaufmann, followed by Miss Lang QC, I remain entirely unpersuaded that the proposed appeal would have any realistic prospect of success. Kennedy LJ's leading reserved judgment in the Divisional Court to my mind demonstrates convincingly that, whatever may be regarded as the true rationale underlying prisoners' disenfranchisement, it does not offend the Convention and it is for Parliament alone either to abolish it or narrow it if it can be persuaded that it would be right to do so. It is not properly open to the courts in the circumstances of this case to judge it disproportionate or otherwise inappropriate, having regard to the considerations in play.
5. Fleshing out, or perhaps putting a marginally different slant on, paragraph 2 of Buxton LJ's reasons, I would just quote, as did the Divisional Court below, a single passage from Lester and Pannick's "Human Rights Law and Practice" 1999, page 74, cited with approval by Lord Steyn in Brown v Stott:

"Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better placed to perform those functions."

6. This to my mind represents par excellence a case in which such circumstances exist. I am wholly unpersuaded that the recent House of Lords decision in R (Daly) v Home Secretary [2001] 2 WLR 1622, a case concerned with prisoners' cell searches, could sensibly affect the outcome of the present case, which raises very different problems.
7. Politically I am not unsympathetic to the applicants' cause. Jurisprudentially, however, I regard it as doomed. Nor am I persuaded that, prospects of success apart, there is some other compelling reason for this court to entertain an appeal. On the contrary, I regard the Divisional Court's reserved judgment as an appropriate final decision on this issue in this country. The applications accordingly are refused.
ORDER: Applications refused. Public funding assessment of the applicants' costs. (Order not part of approved judgment)