Legal Research
Cases
Moohan & Anor v The Lord Advocate

Moohan & Anor v The Lord Advocate

Link copied

Case Copied 17 December 2014 68 min read

Contents

On this page

Summary

Michaelmas Term
[2014] UKSC 67
On appeal from: [2014] CSIH 56

JUDGMENT

Moohan and another (Appellants) v The Lord Advocate (Respondent)

before

Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Wilson
Lord Reed
Lord Hodge

JUDGMENT GIVEN ON

17 December 2014

Heard on 24 July 2014

Appellants Aidan O'Neill QC Christopher Pirie (Instructed by Tony Kelly, Taylor and Kelly)		Respondent Gerry Moynihan QC Douglas Ross (Instructed by Scottish Government Legal Directorate Litigation Division)

		Intervener Lord Wallace of Tankerness QC Jason Coppel QC Jason Coppel QC (Instructed by Office of the Advocate General)

LORD HODGE: (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agree)

In this appeal two men who had been convicted of very serious offences and who would continue to be detained in a penal institution on 18 September 2014 sought to establish a right of convicted prisoners to vote in the Scottish independence referendum on that date. As a prompt decision was needed, the court debated the matter and dismissed the appeal on the same day as the hearing. This judgment sets out the reasoning of the majority of the court.

The proceedings giving rise to the appeal were applications for judicial review of the Scottish Independence Referendum (Franchise) Act 2013 ("the Franchise Act"), an Act of the Scottish Parliament. The Franchise Act based the franchise for the referendum on the franchise for local government elections, which is determined by the Representation of the People Act 1983 ("the 1983 Act"), and extended it to young voters over the age of 16. Section 2(1)(b) of the 1983 Act provides that a person who is subject to any legal incapacity to vote is not entitled to vote as an elector at a local government election. Section 3(1) of the 1983 Act incapacitates convicted prisoners from voting. Such prisoners have lacked the legal capacity to vote since 1969. Before then, there were other legal provisions which disenfranchised felons or had the effect of preventing prisoners from being registered to vote.

The challenges follow on from decisions of the European Court of Human Rights ("the Strasbourg Court") concerning the disenfranchisement of convicted prisoners. In Hirst v The United Kingdom (No 2) (2006) 42 EHRR 41 the Grand Chamber held that the general and automatic disenfranchisement of convicted prisoners was a violation of article 3 of Protocol No 1 ("A3P1") of the European Convention on Human Rights ("ECHR"). In Scoppola v Italy (No 3) (2013) 56 EHRR 19 the Grand Chamber confirmed its judgment in Hirst. More recently, this court in McGeoch v Lord President of the Council 2014 SC (UKSC) 25 (R (Chester) v Secretary of State for Justice [2014] AC 271) has applied the principles in Hirst and Scoppola in claims under the Human Rights Act 1998 ("HRA 1998"). The appellants did not claim that, if their appeal were to succeed, they would necessarily have a right to vote in the referendum but asserted that it was important to review the lawfulness…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Moohan & Anor v The Lord Advocate and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] UKSC 67
Decision Date