Achieving Social Justice in 2018: Prisoner Voting Rights

The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.

  • South African Constitutional Court rules on prisoners' right to vote (1999)


Howard League Scotland calls on the government to take this occasion of newly devolved powers to extend the franchise to all prisoners. The issue of prisoners voting should be central to the Electoral Reform Consultation. Extending the vote to prisoners is not primarily about criminal justice, penal reform or rehabilitation. This is about human rights, creating universal franchise in Scotland, and ensuring democratic rights for all citizens. Ultimately, this is about improving the health of our democracy and building a better Scotland.

The centenary of women’s right to vote has been a powerful and timely reminder that citizenship is not automatic, even in democratic societies. We are reminded also that when people are reduced to second class citizenship, and thus socially excluded, it is all too often the result of government policy and legislation. Democracy is about inclusion, political engagement and civic participation. When we disenfranchise specific groups of people, however, we curtail their citizenship and socially marginalise them, but we also degrade the quality of the democracy across our entire society. 

In terms of measuring the strength of our democracy and social equality, universal franchise is seen as an important proxy. Using that measure, Scotland’s democracy is worryingly limited. Of the 47 Council of Europe nations, Scotland is an outlier; having restrictions on prisoner voting we are in line only with Westminster, Armenia, Bulgaria, Estonia and Russia. 

There is also something particularly punitive and arbitrary about denying prisoners the right to vote as opposed to all people with a conviction. This is most likely due to the belief that prison is for the most heinous criminals, but we know in fact large numbers of prisoners are not sentenced for serious or violent offences. In 2011-12, 28 per cent of shoplifting convictions, 54 per cent of housebreaking convictions, and 61 per cent of convictions for serious assault and attempted murder ended in a custodial sentence (Source: Criminal Proceedings in Scotland 2011-12). There is not a straightforward divide between the types of offences that attract imprisonment and those that do not. Therefore, HLS advocate that a custodial sentence by itself sets too low and arbitrary a threshold for the loss of such an important right as the right to vote.

Imprisonment is intended as the deprivation of liberty but in contemporary Scotland it also causes “civic death”, an archaic nineteenth century penal idea that should be resigned to history. Civic death was intended to strip a person not just of their freedom, but of many other basic rights, reducing them to a ‘non-person’. This sits at odds with the Scottish political commitment to reintegration and social justice.

Instead, by expanding the franchise the prison can be used to inculcate and encourage civic identity. This is particularly important given that the current voting ban also disproportionately impacts the most deprived and vulnerable. Prisoners tend to be the most marginalized members of our communities and by denying them a vote further ostracizes them from mainstream society. Strengthening people’s connection to society and motivating their sense of wider civic responsibility is an important aim of democracy, one that can be supported by giving prisoners the vote.

Since the devolution of electoral matters to Holyrood in the Scotland Act 2016, however, Scotland has gained the opportunity to be a leader and become the first polity in the United Kingdom to extend the franchise to convicted prisoners. England and Wales continue to deny prisoners the right to vote, despite the European Court ruling that it is unlawful. By extending the vote to all prisoners, the Scottish government can buck this trend, sending the clearest signal yet about its commitment to justice, fairness and inclusion.

HLS believes that the franchise is too limited in Scotland and calls on the Scottish government to remove this uncivilised and anti-democratic ban. Following the Irish model, voting should be extended to all prisoners, regardless of crime and sentence length and using a postal vote system. Prisons are public institutions, their character reflects the political and social values of society at large. However, from civil rights to eliminating the death penalty, history has shown us that governments can shape and encourage progressive public opinion by showing leadership on even the most divisive issues. By giving voting rights to prisoners, Scotland will make a bold statement on the international stage about the democratic character of our society. Prisoner voting is not a criminal justice matter, it is an electoral issue: in its current form it exposes a serious inequality that currently undermines Scottish democracy.




Scottish Prisons in Comparative Perspective

The Council of Europe today published their Annual Penal Statistics – Survey 2016. The report reflects detailed information from 47 of the 52 prison administrations across the Council of Europe. This has revealed a slight increase in the total size of the prison population across these jurisdictions, rising by 1%, the Council of Europe average prisoner population is 117 prisoners per 100,000 people. This report is also important because it allows us to see where Scotland sits in relation to penal trends in other countries.

Matters we should be worried about include the revelation that Scottish prisons have the highest mortality rates within the UK. They are slightly higher than England and Wales and more than double the rate of deaths recorded in Northern Irish prisons.

For every 100,000 inhabitants in Scotland there are 584.3 entries to a prison. This is extraordinarily high. The rate of entry in England and Wales is only 197.3 per 100,000 of the population. This puts us far beyond the European entry rate average of 167.3 people, giving Scotland the third highest entry rate of the 47 nations surveyed in the Council of Europe report. The entry rate does not reflect the number of individuals received into prison, but the total number of times someone enters a prison. So this can include the same individual receiving more than prison sentence in a year. This suggests that more people are being churned through the prison system more often than almost any other country.

Scotland releases people at a slower rate than the European average. In 2015, 31,300 people entered Scottish prisons and 16,700 people were released. This means Scotland has a turnover ratio of 42.6. This is below the European average of 52.3 and places us in the group of countries with the lowest turnover ratios. The Council of Europe warns that low turnover rates are potentially an indicator of future overcrowding.

Within the UK Scotland was recorded as having the highest percentage of females in the prison population (Scotland: 5.2%; England and Wales: 4.5%; Northern Ireland: 3.6%)

There was an average of 1494 people imprisoned as pre-trial detainees

Other important figures include:

The rate of releases per 100,000 people in national population was 311.8, which was far above the average of 135.1

Scotland is recorded as having one of the shortest average sentences at 2.9 months, this is below the European average of 9.8. Short sentences can help keep prisoner numbers low, but it can also be an indicator that prison is not being used a measure of last resort. However, since the presumption against short sentences was introduced in Scotland this figure is likley to have risen.

Scotland has a lower than average prisoner suicide rate, with 8.3% of deaths in Scottish prisons recorded as suicide.

Since the figures were collated Scotland’s prison population has dropped from 142 per 100,000 to 139. While this is welcome, the change is likely due to drop in the number of people being proceeded against by the courts rather than reflecting a change in prison policy. To make this change permanent and continuous requires policies that address Scottish punitive sentencing trends, cautious parole practices and long-term prisoner legislation.

Read more: SPACE I: Annual Penal Statistics in Europe for 2016

HLS Welcomes Increase in Minimum Age of Criminal Responsibility

HLS are pleased to see the Scottish government has finally brought forward a Bill that will raise the minimum age of criminal responsibility (MACR) from 8 to 12. Having a MACR set at eight years old meant Scotland had the lowest minimum age of criminal responsibility in Europe and one of the lowest in the world. At Howard League Scotland we have long campaigned for this change and are pleased to see the government move forward with this plan. This finally brings the MACR into line with the minimum age of prosecution.

However, we hope this is just the beginning and we would like to see consideration given to raising it further still. Raising the MACR does not mean refusing to hold children accountable for their actions, but it does mean ensuring that we avoid the criminalisation of children, and that we pay due attention to their welfare and educational needs. While this now means we have a higher MACR than England and Wales (where it is ten years old), the bar for measuring our success should not be limited to comparison with other UK governments. Scotland should aspire to be a European and international leader on the MACR as a matter of social justice and youth justice. 

The Minimum Age of Criminal Responsibility: An International Snapshot: 

  • 13 years old in Greece and Poland
  • 14 years old in Bulgaria, Spain, Italy, Germany and Austria
  • 15 years old in Denmark, Norway and Sweden
  • 16 years old in Portugal and Romania and
  • 18 years old in Brazil and Luxembourg, and in Belgium for all but the most serious offences.

HLS welcome today’s change in the MACR. However, we hope this sparks ongoing debate and discussion about raising both the MACR and minimum age of prosecution further.

Read More:
Scottish Government: Minimum age of criminal responsibility


Scotland Must Reform Life Sentences

Scotland’s punitive sentencing system has come under scrutiny today by Prof Dirk Van Zyl Smit, who was invited to Scotland by HLS. HLS are very pleased that the need to reform life sentences in Scotland has received wide coverage in today’s Herald. There it is reported that in the Netherlands there are 30 lifers, compared to Scotland’s 1000. Research being conducted by Prof Van Zyl Smit shows that Scotland sentences more people to life than England and Wales. A startling research finding has also revealed that Scotland has double the number of people on life sentences than France. This evidence about Scotland’s automatic life sentences helps partially explain Scotland’s incredibly high prison population and calls into question punitive suggestions for whole life tariffs.

The reasons for the disparity is that in other countries it is acknowledged in sentencing policy that all murderers are not dangerous and do not require life long exclusion. HLS are quoted in the news coverage. We strongly advocate for a reduction in the use of automatic life sentences. If Scotland aspires to be the develop the most progressive social policy in the English-speaking world than we must abandon penal policy in Scotland that is unnecessarily retributive. As Dirk Van Zyl Smit is quoted as saying: ‘Scottish people often have an idea of the criminal justice system as not being as harsh as elsewhere. At the top end that is not true’. 

  • Tickets for Dirk Van Zyl Smit’s talk are available here


International Women's Day

On International Women’s Day we think of the almost 400 women who are currently detained in Scottish prisons.

News released today by SPS shows images of a new smaller prison for women to be opened in 2020. Scotland has a history of trying to be innovative in regards to women’s imprisonment. Yet the failure of these innovations is also an inescapable part of Scotland’s contemporary prison history, as self-harm and suicide have continued inside the prison, and women’s poverty and social exclusion continue to be entrenched by having been imprisoned. And despite efforts, over the last 40 years we have witnessed the steadily increasing number of women imprisoned in Scotland. But there are lessons in failure that can help us re-think the future of women's penal policy so that it can meet the demands of social justice.

We welcome that the new prison will hold around 20 women. HLS firmly believe that the social and rehabilitative value of small prisons far outstrips the expedient value of economies of scale of larger prisons. But real penal reform and innovation will not be found in a small scale expansion of the women’s prison estate, but through decarceration. We hope that this new prison is a development in that direction. Scottish government should formally commit to reducing the size of the women’s prison population to at least half of what it currently is. With public and political backing, Scotland can take this opportunity to be a world leader in social justice and penal reform by radically cutting the number of females in custody.

However, if we do reduce the prison infrastructure to hold less than 200 women and girls (which would be half the current number), how can the government guarantee against overcrowding? While the recent plans in the Management of Offenders (Scotland) Bill make provisions to extend electronic monitoring which can alleviate prisoner numbers, as HLS recently wrote, this brings with it other risks to citizenship and community life. We should not lose sight that social justice is not only about imprisoning better, but imprisoning less.