Chester, R (on the application of) v Secretary of State for Justice

Factual and Procedural Background

Two life-sentence prisoners – referred to here as Appellant 1 and Appellant 2 – challenged statutory provisions that automatically prevent convicted prisoners from voting in United Kingdom, European Parliamentary, Scottish Parliamentary and local elections. Appellant 1’s tariff expired many years ago but he remains incarcerated because the Parole Board has not authorised release. Appellant 2’s tariff expired in October 2011; however, a subsequent violent escape led to a consecutive seven-and-a-half-year sentence, delaying any parole consideration until July 2015.

Appellant 1 issued judicial-review proceedings in December 2008, invoking Article 3 of Protocol 1 to the European Convention on Human Rights (A3P1) and European Union (EU) law. The Divisional Court and Court of Appeal dismissed his claim. Appellant 2 began judicial review in February 2011, relying solely on EU law. His petition was dismissed by the Scottish courts, but the Supreme Court later allowed an amendment adding an A3P1 claim covering European Parliamentary elections. Both appeals were heard together before the Supreme Court (the Court).

Legal Issues Presented

1. Whether the continued blanket disenfranchisement of convicted prisoners under section 3 of the Representation of the People Act 1983 and section 8 of the European Parliamentary Elections Act 2002 is incompatible with A3P1 as incorporated by the Human Rights Act 1998.
2. Whether EU law confers an enforceable individual right enabling convicted prisoners to vote in European Parliamentary or municipal elections, and, if so, whether the domestic legislation must be disapplied or interpreted compatibly.
3. If either branch of law confers such a right, what remedies – declaration of incompatibility, reading-down, disapplication, damages, or reference to the Court of Justice of the European Union – are available and appropriate for these Appellants.

Arguments of the Parties

Appellants’ Arguments

• A3P1, read with Strasbourg jurisprudence (Hirst, Scoppola), renders the blanket ban disproportionate and incompatible.
• EU provisions (Articles 20 & 22 TFEU; Articles 39 & 40 of the Charter; Articles 10 & 14 TEU) incorporate a parallel right to vote, requiring disapplication of the domestic ban or a declaration that it conflicts with EU law.
• If incompatibility is found, the Court should grant a declaration and, if necessary, award damages following Francovich principles.

Respondents’ / Attorney General’s Arguments

• The Human Rights Act obliges courts only to “take into account” Strasbourg case-law; the Court may decline to follow Hirst/Scoppola because prisoner voting engages deep questions of democratic policy within Parliament’s margin of appreciation.
• EU law creates no general individual right paralleling A3P1; Articles 20 & 22 TFEU merely ensure equality of treatment for Union citizens resident outside their home Member State.
• Even if an EU right existed, only a general declaration (not disapplication) could follow; damages would fail the Francovich criteria.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the lead judgment, Judge Mance adopted a structured approach:

• Human Rights Act: The Court must “take into account” Strasbourg jurisprudence. While critical of aspects of Hirst/Scoppola, no “fundamental principle” justified domestic departure from those Grand Chamber rulings. Nonetheless a further declaration of incompatibility was unnecessary because Parliament is already scrutinising draft legislation.
• Application to Appellant 1: Even if legislation were amended, Parliament would almost certainly still exclude post-tariff life-sentence prisoners, so no personal remedy would follow. He is therefore a “victim” only in the technical sense, but not entitled to relief.
• EU Law: Articles 20 & 22 TFEU merely secure equal voting rights for Union citizens residing outside their home state; they do not confer a general voting right comparable to A3P1. Earlier CJEU cases (Spain v UK; Eman) confirm Member-State competence over franchise rules. The general principle of non-discrimination is not engaged because convicted prisoners are not in a comparable situation to remand prisoners or free citizens.
• Remedies under EU Law: Even had EU rights existed, the only possible relief would be a general declaration, not disapplication of the entire ban; reading-down is impossible; and any damages claim would fail the stringent Francovich test (no “manifest and grave” breach, and no direct causal link).
• No Reference Necessary: Questions of EU law were acte clair; therefore no referral to the Court of Justice was required.

Holding and Implications

APPEALS DISMISSED

Direct Consequences: Both Appellants remain ineligible to vote; no damages or declarations were granted.

Broader Implications: The Supreme Court accepts the incompatibility already declared in earlier domestic cases but, exercising discretion, declined to repeat the declaration. Implementation now rests squarely with Parliament. The ruling confirms that EU law does not augment prisoners’ voting rights, and re-affirms the cautious domestic approach to departing from Grand Chamber case-law.