Pearson & Anor v Secretary Of State For Home Department & Anor

Where a challenge to prisoners’ disenfranchisement relies on the European Convention, the courts must respect the legislature’s institutional role in making difficult choices between competing social considerations, particularly where the international jurisprudence recognises a margin of appreciation. A court should not declare the restriction disproportionate or inappropriate merely because an alternative policy appears preferable. The question remains for Parliament unless the Convention plainly requires judicial intervention.

Serving prisoners challenged the statutory prohibition on voting in Parliamentary and local government elections under section 3(1) of the Representation of the People Act 1983. They relied principally on article 3 of the First Protocol to the Convention and, to a limited extent, article 14.

The Divisional Court, comprising Kennedy LJ and Garland J, rejected the applications on 4 April 2001. Permission to appeal was refused on paper, but the applications were renewed before the Court of Appeal. The central issue was whether the statutory voting ban had a realistic prospect of being held unlawful or disproportionate under the Convention.

1. Applications refused. The proposed appeals had no realistic prospect of success.
2. The consistent and recently confirmed jurisprudence of the Commission, relying on the general principles in Mathieu-Mohin 10 EHRR 1, supported the conclusion that the disenfranchisement did not offend the Convention.
3. The court held that the rationale for disenfranchisement was ultimately a matter for Parliament. Whether the restriction should be abolished or narrowed was a legislative choice. The courts were not properly entitled, in the circumstances, to judge it disproportionate or otherwise inappropriate.
4. The case illustrated the proper institutional limits of judicial review. International courts may recognise that national institutions are better placed to assess social needs and make difficult choices between competing considerations. National courts should likewise acknowledge circumstances in which the legislature and executive are better placed to perform those functions. The Canadian authorities therefore required caution, particularly because Canada’s constitutional arrangements did not contain an equivalent doctrine of margin of appreciation.
5. R (Daly) v Home Secretary [2001] 2 WLR 1622, concerning prisoners’ cell searches, raised materially different problems and did not affect the outcome.
6. The applications were refused. The applicants’ costs were subject to public funding assessment.

• Court of Appeal (Civil Division): applications for permission to appeal refused on 18 June 2001.
• Divisional Court of the Queen’s Bench Division: applications rejected on 4 April 2001.