Voting rights for detained patients
In general, detained and informal psychiatric in-patients are entitled to vote. However, under s3A Representation of the People Act 1983, certain offenders detained in mental hospitals are disenfranchised: these are those detained, or unlawfully at large, under s37, s38, s44, s51(5), s45A, s46 (now repealed) or s47 MHA; s5(2)(a) CPIA 1964; and s6(2)(a) or 14(2)(a) Criminal Appeal Act 1968. Those remanded in custody under s35, s36 or s48 are not disenfranchised. Further detail can be found in the section itself, including the provisions relevant to Scotland and Northern Ireland.
The European Court of Human Rights in Hirst v UK (No 2) 74025/01  ECHR 681 declared unlawful the blanket restriction on voting which applies to all convicted prisoners irrespective of the length of their sentence, the nature or gravity of their offence, or their individual circumstances. In Frodl v Austria 20201/04 B the ECtHR held that ‘Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions’.
- On 18/10/10 the ECtHR issued a press release confirming that this case would not be referred to the Grand Chamber. In Greens and MT v UK (2010) 60041/08, 60054/08 (23/11/10) the ECtHR gave the UK six months to amend the voting laws, during which time comparable cases will not be considered; no compensation was awarded. The ECHR cases were referred to in R (Chester) v SSJ on 3/11/10, but the Court of Appeal said resolution of the problem was for politicians not the courts. At one stage it appeared that the plan was to allow those sentenced to a year or less to vote but it is unclear what the effect will be on disenfranchised MHA patients.
- There have been more recent developments which have not yet been added to this page.
Mental Disability Advocacy Center, 'Venice Commission backs right to vote' (19/12/11). In December 2011 the Venice Commission amended a key document to reverse an anomaly which allowed countries to disenfranchise those with 'genuine mental disabilities'.
Lucy Series, 'It's that time again…' (20/4/17)†. This article notes that in order to vote there is no need to have the mental capacity to vote (s73(1) Electoral Administration Act 2006 states that "[a]ny rule of the common law which provides that a person is subject to a legal incapacity to vote by reason of his mental state is abolished"), but the Electoral Commission is of the view that the declaration of truth on the individual voter registration form must be signed with someone with mental capacity to do so or by a deputy/attorney.
CQC, 'Voting rights for detained patients' (reviewed October 2008). This guidance document is still available here, but is no longer on the CQC website.
BBC Democracy Live: Government 'must allow some prisoners to vote', 2/11/10. House of Commons video
Telegraph, 'Prisoners to get the vote for the first time', 1/11/10. The article which led to the Commons debate
- Frodl v Austria transcript on Bailii
- ECtHR press release, 'Cases referred to the Grand Chamber', 18/10/10
- Greens and MT v UK transcript on HUDOC website; ECtHR press release, 'Time Limit Imposed on United Kingdom Government to Introduce Legislation Giving Convicted Prisoners the Vote' 23/11/10; Adam Wagner, 'Europe sets deadline for UK to let prisoners vote, or else', UK Human Rights Blog 23/11/10
- Daily Telegraph, 'Victim's mother criticises votes for murderers move', 4/11/10
- ICLR case report: R (Chester) v SSJ  EWCA Civ 1439; (2010) WLR (D) 337; Bailii transcript
- Adam Wagner, 'Prisoner voting and the £160m question' (UK Human Rights Blog, 20/1/11)