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John Hirst (criminal)

From Wikipedia, the free encyclopedia

John Hirst (born 18 November 1950) is a British convicted murderer and campaigner for prisoners' rights.

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Decisions of the European Court of Human Rights holding that the UK's blanket ban on voting by convicted prisoners violates Article 3 of Protocol 1 to the European Convention on Human Rights have caused controversy in the UK. One reason for this is the retributive attitude of many people in the UK towards criminals: as a society, we do not seem to be interested in what happens to people behind bars, despite the terms of Rule 3 of the Prison Rules 1999: 'The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life.' A second reason is that attention has been diverted from the merits of the issue to a different question: who should decide whether prisoners are to be allowed to vote? Should it be the Queen in Parliament by way of an Act of the UK's Parliament, or judges of the European Court of Human Rights? The debate has generated more heat than light. Mr. Cameron, the Prime Minister, said in Parliament in 2010, 'It makes me physically ill even to contemplate having to give the vote to anyone who is in prison.' In 2011, the House of Commons resolved by 234 votes to 22: That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand. I want to try to clarify some of the issues by saying a word or two about each of three questions. First, what sort of right is the right to vote, and how, in a society which long ago adopted a universal adult franchise, did prisoners get left out? Secondly, how did the European Court of Human Rights come to decide that the UK's approach to prisoners' voting violated the ECHR? Thirdly, is there a clash between the judgment of the Court and the sovereignty of the UK or of its Parliament? Before 1832, the right to vote was governed by property. In general, voters had to satisfy a wealth test in order to be allowed to vote. The wealth had to be in the form of estates in land, or real property. In consequence, the right to vote was seen as a form of property, so in 1702, in Ashby v. White, a plaintiff recovered damages from an election officer who had wrongly refused to allow him to exercise his right to vote. Under these conditions it would be very unusual for a person qualified to vote to be in prison, so there was no issue as to whether prisoners should be allowed to vote. The sort of people who went to prison would not have been able to vote even had they been free. When the franchise was progressively extended, starting with the 1832 Reform Act, and Parliament created an increasing number of criminal offences (especially in the second half of the 20th century and the early 21st century), it became more and more likely that people qualified to vote would be in prison at the time of an election. The prison population rose from under 20,000 in 1900 to nearly 89,000 at the end of 2011. Of these, 90% had been convicted of crimes, 9% were awaiting trial, and 1% were in prison in connection with non-criminal matters. It follows that about 80,000 people were disenfranchised. In the 19th century, denying convicted prisoners a vote was not philosophically problematic. Unlike those people who voted by virtue of property qualifications, and so had seen the vote as a right, the new, wider electorate had never been able to vote. Not extending the vote to prisoners did not deprive them of any right; they were merely refused the grant of a new right. By the time the UK's electorate was based on universal adult suffrage, however, one might have expected serious consideration to be given to the remaining categories of non-voters, of which prisoners formed the main group. But the refusal was carried forward without serious debate in successive pieces of legislation; indeed, there was no discussion of it at all during the passage of the most recent legislation, the Representation of the People Act 1983. This is partly explicable by the fact that the law had traditionally regarded convicted prisoners as being without any rights. By the early 1980s, however, the position was changing. The common law was starting to recognize that convicted prisoners retained those rights which were not inevitably taken away by virtue of the very fact of imprisonment. Convicts went to prison as punishment, not for punishment. Prisons were no longer no-go areas for courts. The changing attitude to prisoners was accompanied by developments in international law. The UK was a party to Protocol 1 to the European Convention on Human Rights, a treaty binding on states in international law. Article 3 provides: "Right to free elections "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." This does not sound like a strong assertion of a universal right to vote, but the European Court of Human Rights in Strasbourg interpreted it in the light of other human-rights treaties, including Article 25 of the International Covenant on Civil and Political Rights (1976), to which the UK is a party, and of the constitutional traditions of member states of the Council of Europe. On this basis, the Court held that there was a right to universal adult suffrage unless there is a legitimate justification for restricting a particular person's right to be a candidate or an elector: Mathieu-Mohin and Clerfayt v. Belgium (1987). To establish such a justification, a state would have to show that the restriction served a legitimate aim and was proportionate to it. The ECHR thus reinstates participation in elections for the legislature as a right. Now, however, it is a human right, not a property right. In other words, everyone has the right, and states have to justify taking it away from them. It might be justifiable to refuse to allow non-nationals or non-residents to vote, but other excluding other categories of people is more problematic. The matter came to a head for the UK when prisoners started to bring cases to the Strasbourg Court claiming that the UK's blanket ban on their voting violated their right under Article 3 of Protocol 1. In Hirst v. UK (2004) a Chamber of the Court accepted, somewhat doubtfully, that there might have been a legitimate aim for the ban in deterring crime, but decided that it was not proportionate to the aim, because it did not differentiate between types of offences or the circumstances of individual offenders and offences. The UK had argued that the Court should give weight, through the instrument of the so-called 'margin of appreciation', to the judgement of Parliament that such a ban was justified, but this argument failed as the ban had not been debated during the passage of the 1983 Act, so it was not clear what judgement (if any) had been made concerning the relative weights of competing factors. In 2005, the Chamber's judgment was confirmed by the Grand Chamber of the Court. When the UK failed to take action to implement the decision and the Court was therefore plagued by a growing number of applications from prisoners, the Court in 2010 implemented the pilot judgment procedure against the UK, setting a timetable for the UK to bring forward measures to remove the violation. The deadline is fast approaching. This caused a good deal of annoyance among parliamentarians in the UK. It seemed to be calling in question proceedings in Parliament, which no domestic court could do because of Article IX of the Bill of Rights 1689. But that confuses domestic with international law. Before the Strasbourg Court, the State is the respondent, not a particular institution of the State. The task for the Court is to decide whether the State as a whole is responsible for a violation of a Convention right. It does not matter, for the purpose of international law, how a State chooses to organise its internal, constitutional arrangements. Why, one might ask, should the Strasbourg Court be able to dictate to the UK what its franchise should be? And why should the matter be decided by a judicial, rather than legislative, body? The answer to both these questions is the same. The Strasbourg Court has that responsibility because the UK conferred it on the Court. Under the original form of the ECHR, states could choose whether or not to accept the jurisdiction of the Court to receive applications from individuals complaining of violations of their Convention rights. The UK accepted that jurisdiction in 1965, with effect from 1966, and renewed its acceptance periodically until the 1990s. A new treaty, Protocol 11, was then agreed by all the member states of the Council of Europe, including the UK. It amended the text of the ECHR to provide for the compulsory jurisdiction of the Court in respect of individual applications. Since that Protocol came into force, the UK has had no choice in the matter. But that was a result of the UK's own choice. The Court has not seized the power to apply the Convention to states. States, including the UK, have voluntarily imposed on the Court a duty to do so. Does this result in a clash between the Strasbourg Court and the sovereignty of the UK? No. By virtue of its sovereignty in international law, the UK is entitled to enter into treaties. It did so: the ECHR and those of its Protocols to which the UK is a party are the result of an exercise by the UK of its sovereignty. Like any other contract, a treaty is made to be obeyed: pacta sunt servanda. Contracting parties are not free to discard their obligations under a treaty unilaterally. To do so is to breach international law. When a treaty provides for disputes to be determined authoritatively and finally by a judicial body (in this case the European Court of Human Rights), it is not open to a party to the treaty to complain about the process to which it has agreed when a decision goes against it. Does it result in a clash between the Court as a judicial body and the legislative sovereignty of the Queen in Parliament, one part of which is electorally accountable? No. The Strasbourg Court has not told the UK what it has to do. It has only said that the present position cannot be justified under the ECHR because of the indiscriminate character of the ban on prisoners voting. In the most recent case, Scoppola v. Italy (2012), in which the UK intervened, the Grand Chamber made it clear that Article 3 of Protocol 1 does not even require an individualised, judicial decision in each case as part of the sentencing process. An Act of Parliament can lay down bright-line rules, as long as the rules are related to the nature of offences and circumstances of offenders. This leaves considerable discretion to the legislature. It limits its room for manoeuvre, but so does any international-law rule. I hope that these reflections on the question of who should decide will have cleared away some misconceptions and will allow us to turn our attention to the important matter, which is what the best rule is. On this, I offer just two brief, concluding thoughts. First, it is odd that the UK's parliamentarians should place such emphasis on the electoral accountability of the House of Commons as a source of its authority yet routinely deny about 80,000 people the right to vote in elections to the House. Secondly, the present position has an arbitrary impact. People who begin a sentence the day after an election or are released the day before it can vote. People who are imprisoned for contempt of court can vote; people who are imprisoned for shoplifting or drunken behaviour in public cannot. Most curiously, people who are fined for stuffing fake ballot papers into ballot boxes but are not imprisoned can vote at the next election; people imprisoned for helping a terminally ill loved one to end her life voluntarily cannot. We really do need to think seriously about the circumstances which justify depriving a person of the right to vote.

Early life

Sources vary on Hirst's place of birth - either Bradford[1] or Hull.[2] Hirst was placed by his divorced Latvian mother[1] in a Barnardo's children's home, spending time subsequently in a series of foster homes.

Criminal history

Hirst entered into crime, committing burglaries and robberies. He was sentenced to five years in Armley prison in April 1971 for arson, burglary and deception.

On 23 June 1979, Hirst killed Mrs. Bronia Burton, with whom he was lodging while out on parole from a two-year burglary sentence, in Burghfield, Berkshire, with an axe, hitting her seven times. Hirst said that Burton, with whom he had been lodging for eleven days, nagged him constantly when he went out, and he felt no remorse.[1]

Hirst pleaded not guilty to murder, pleading guilty to manslaughter on the grounds of diminished responsibility. This plea was accepted by the prosecution who were led by Barbara Calvert QC.[3] Mr Justice Purchis, sentencing Hirst to 15 years in prison said "I have no doubt you are an arrogant and dangerous person with a severe personality defect", adding "unfortunately, this is not suitable for treatment in a mental hospital".

While in prison, Hirst attacked a prison officer in 1989, leading him to be transferred to a high-security unit reserved for the most dangerous prisoners. The unit was visited by Stephen Shaw then of the Prison Reform Trust, who gave Hirst a copy of Prison Rules: A Working Guide, a PRT publication. Hirst used the book to successfully sue the prison governors over the disappearance of his personal property. Hirst submitted up to nine written complaints to his prison governors per day,[4] also becoming Britain's most litigious prisoner, advising other prisoners and launching numerous lawsuits against the government and prisons.[2]

In the event Hirst served 25 years due to violent behaviour and other offences while in prison, being released in 2004.

Some of Hirst's legal successes included a defeat of TV licensing (in 2006),[5] his segregation in solitary confinement,[6] a dangerous dogs charge (in 2008),[7]

Hirst has been diagnosed with Asperger's syndrome.[1]

Hirst v United Kingdom (No. 2)

Hirst sued in the High Court over the ban on prisoners' voting in elections in 2001, a case which he lost there,[8] but subsequently won in the European Court of Human Rights in Hirst v United Kingdom (No 2) in 2004–2006. In 2010, the UK government announced that it would introduce legislation to comply with the ruling, giving some prisoners the right to vote,[9] a move which caused much anger among Conservative and Labour MPs,[10] who eventually rejected the ruling in the House of Commons.[11]

References

  1. ^ a b c d O'Hagan, Andrew (18 November 2006). "It's not like I'm killing someone now because there's no lid for my jam jars". The Guardian. London.
  2. ^ a b James, Erwin (12 October 2005). "The devilish advocate". The Guardian. London. Retrieved 8 December 2019.
  3. ^ Blake, Heidi (11 February 2011). "Votes for prisoners: John Hirst profile". The Daily Telegraph. Retrieved 30 July 2015.
  4. ^ "The wrong side of the law". Legal Week. Retrieved 22 August 2014.
  5. ^ at 10:20, OUT-LAW COM (13 November 2006). "TV Licensing abandons case against unlicensed TV owner". www.theregister.co.uk. Retrieved 18 May 2019.
  6. ^ Green, Jonathan (8 May 1996). "When convicts know the law inside out". The Independent. London.
  7. ^ "John Hirst and "Rocky" found not guilty | News | Garden Court North - Garden Court North Barrister Chambers". Gcnchambers.co.uk. 9 September 2008. Archived from the original on 5 May 2014. Retrieved 22 August 2014.
  8. ^ Blake, Heidi (11 February 2011). "Votes for prisoners: John Hirst profile". The Daily Telegraph. London.
  9. ^ "Ex-prisoner crusade to voting 'victory'". BBC News. 2 November 2010.
  10. ^ "Killer's 'champagne and spliff' vote celebration". The Daily Telegraph. London. 2 November 2010.
  11. ^ Porter, Andrew (10 February 2011). "MPs vote against giving prisoners the right to vote". Daily Telegraph. London. Retrieved 10 November 2012.

External links

This page was last edited on 30 September 2023, at 22:52
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