Moohan and Another v The Lord Advocate: SC 17 Dec 2014

The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC dissenting) The ban did not infringe the prisoners’ human rights. The referendum was not an election to a democratically elected legislature.
Courts should not seek to develop the common law in a way designed to add to or replace statutory rights.
Baroness Hale said: ‘The courts of the United Kingdom are not bound by the judgments of the Strasbourg Court in interpreting the ECHR. In section 2 of HRA 1998 the courts are obliged only to ‘take into account’ that jurisprudence. There is room for disagreement and dialogue between the domestic courts and the Strasbourg Court on the application of provisions of the ECHR to circumstances in the UK. Nonetheless, it is consistent with the intention of Parliament in enacting HRA 1998 that our courts should follow ‘a clear and constant line of decisions’ of the Strasbourg Court, ‘whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle”

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge
[2014] UKSC 67, [2014] WLR(D) 544, UKSC 2014/0183, [2015] 1 AC 901, [2015] 2 All ER 361, 2015 SLT 2, 2015 GWD 1-1, [2015] 2 WLR 141
Bailii, Bailii Summary, WLRD, SC Summary, SC
Representation of the People Act 1983 3(1), Human Rights Act 1998, Scottish Independence Referendum (Franchise) Act 2013 82 3
At Outer HouseMoohan, Re Judicial Review SCS 19-Dec-2013
Outer House – the petitioners, each convicted serving prisoners, complained of the blanket ban on them voting in the referendum on Scottish Independence.
Held: The petition was refused. The Act was not a breach of the petitioners’ rights under . .
Appeal fromMoohan and Black Gillon v The Lord Advocate SCS 2-Jul-2014
Inner House – Challenge to denial to prisoners of right to vote in forthcoming independence referendum. They said it was contrary to Human Rights and European Law.
Held: The House refused a reclaiming motion by the petitioners. . .
CitedX v United Kingdom ECHR 3-Oct-1975
The applicant, a serving prisoner, complained that he had been excluded from voting in the referendum on the British membership of the EEC.
Held: Article 10 does not guarantee a right to vote as such.
Article 3 Protocol 1 : the . .
CitedMathieu Mohin and Clerfayt v Belgium ECHR 2-Mar-1987
(Plenary Court) The court described and approved the way in which an ‘institutional’ right to vote had developed into ‘subjective rights of participation – the ‘right to vote’ and the ‘right to stand for election’.’ It described the ambit of Article . .
CitedZ v Latvia ECHR 24-Jan-2008
The applicant alleged that his detention on remand was excessively long, that the proceedings against him were unreasonably long and that he was denied a fair trial since his requests to examine witnesses against him and to obtain the attendance and . .
CitedNiedzwiedz v Poland ECHR 11-Mar-2008
The applicant, a convicted serving prisoner complained that he had not been allowed to vote in presidential and parliamentary elections, and in a referendum on Poland’s accession to the EU.
Held: The Court rejected the claims in respect of (i) . .
CitedMcLean and Cole v The United Kingdom ECHR 11-Jun-2013
The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June . .
CitedAnchugov And Gladkov v Russia ECHR 4-Jul-2013
Article 3 of Protocol No. 1
Automatic and indiscriminate ban on convicted prisoners’ voting rights: violation
Facts – Both applicants were convicted of murder and other criminal offences and death, later commuted to fifteen . .
CitedLiberal Party v United Kingdom ECHR 18-Dec-1980
Article 25 of the Convention
a) A political party, as a gathering of people with a common interest, can be considered as a non governmental organisation or a group of individuals ;
b) Can a political party, as such, be considered as a . .
CitedMatthews v The United Kingdom ECHR 18-Feb-1999
Member states have obligations to ensure that citizens of each state were given opportunity to vote in European elections. Britain failed to give the vote to its citizens in Gibraltar in breach of the convention right to participate in free . .
CitedZdanoka v Latvia ECHR 16-Mar-2006
(Grand Chamber) The applicant alleged that her disqualification from standing for election to the Latvian Parliament and to municipal elections infringed her rights as guaranteed by Article 3 of Protocol No. 1 to the Convention, and Articles 10 and . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedRottmann v Freistaat Bayern ECJ 2-Mar-2010
ECJ Citizenship of the Union Article 17 EC – Nationality of one Member State acquired by birth – Nationality of another Member State acquired by naturalisation – Loss of original nationality by reason of that . .
CitedScoppola v Italy (No 3) ECHR 22-May-2012
(Grand Chamber) A prisoner serving a sentence of 30 years imprisonment for murder, attempted murder and other offences object to his disenfranchisement under Italian law. . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedRabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
CitedSitaropoulos and Giakoumopoulos v Greece ECHR 15-Mar-2012
Grand Chamber . .
CitedShindler v The United Kingdom ECHR 7-May-2013
Article 3 of Protocol No. 1
Restriction on voting rights of non-resident citizens: no violation
Facts – The applicant, a British national, left the United Kingdom in 1982 following his retirement and moved to Italy with his . .

Cited by:
CitedCommissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
CitedCherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .

Lists of cited by and citing cases may be incomplete.

Elections, Prisons, Human Rights, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.540221