UK: Prisoner disenfranchisement is not a fundamental feature of the law

The Supreme Court has dismissed appeals by two convicted murderers who argued that European Union law gave them the right to vote in UK elections.

Peter Chester, who is serving a life sentence in the UK, and George McGeoch, who is behind bars in Scotland, both tried to sidestep British legislation over prisoner voting rights. The European Court of Human of Rights in Strasbourg having in the past deemed Britain's voting ban for all those serving a sentence illegal.

The Supreme Court observed that since the European Court of Human Rights had already declared the blanket ban on prisoners voting incompatible with human rights, there was no point in repeating it.

Mr. Chester, in his 50s, is serving life for raping and strangling his seven-year-old niece, Donna Marie Gillbanks, in Blackpool in 1977. He is detained at Wakefield prison in West Yorkshire; the minimum term he was ordered to serve before becoming eligible to apply for parole has expired.

Mr. McGeoch, from Glasgow, is serving his life sentence at Dumfries prison for the murder in 1998 of Eric Innes in Inverness. He received a minimum term of thirteen years but owing to subsequent convictions, including taking two prison nurses hostage in a siege in 2001, will not be considered for parole until 2015.

Handing down the decision, Lord Mance said that:

[t]he provisions on voting contained in the applicable European treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in member states other than that of their nationality, and so safeguarding freedom of movement within the EU. Eligibility to vote in member states is basically a matter for national legislatures.

The Supreme Court observed that even if voting were to be extended to some prisoners, it was unclear that either Mr. McGeoch or Mr. Chester would necessarily benefit from a change to the rules, which could exclude prisoners convicted of more serious offences.

Lady Hale, observed:

Prisoners' voting is an emotive subject. Some people feel very strongly that prisoners should not be allowed to vote. And public opinion polls indicate that most people share that view.

Lord Sumption, observed that:

In any democracy, the franchise will be determined by domestic laws which will define those entitled to vote in more or less inclusive terms [....] The exclusion of convicted prisoners from the franchise is not a universal principle among mature democracies, but neither is it uncommon.

Lord Sumption also noted:

From a prisoner's point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty.

Lord Sumption observed that the Strasbourg based Court had 'arrived at a very curious position', noting:

Wherever the threshold for imprisonment is placed, it seems to have been their view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated.

The Court ruled in the case of John Hirst in 2005, that a blanket ban on allowing serving prisoners to go to the polls was incompatible with the European Convention on Human Rights.

Moreover, the Court concluded that it was up to individual countries to decide which inmates should be denied the right to vote from jail, but a total ban was illegal.

In November, the Government published the voting eligibility (prisoners) draft bill for pre-legislative scrutiny by a Joint Committee of both Houses. The Bill set out three options: a ban for prisoners sentenced to four years or more, a ban for prisoners sentenced to more than six months and a restatement of the existing ban.

Update 17/12/2014: The Supreme Court has published the judgment finding that there is no common law right to vote. The case, heard in July, challenged the legality of the Scottish Independence Referendum (Franchise) Act 2013. The Act of the Scottish Parliament prohibited prisoners from voting in the Referendum. The case questioned the compatibility of the Act with Article 3, Protocol 1 of the European Convention on Human Rights and the putative common law right to vote.

UK: Assets vested in a company may belong beneficially to the controller, if the arrangement in respect of the assets are such as to make the company its controller's trustee for that purpose

The Supreme Court has ruled that assets vested in a company may belong beneficially to the controller, if the arrangement in respect of the assets are such as to make the company its controller's trustee for that purpose.

In November 2011, Mr. Justice Moylan, sitting in the High Court, ordered the husband, Michael Prest, to procure the conveyance of the matrimonial home to his wife, Yasmin Prest. Mr. Justice Moylan also ordered that Mr. Prest make a lump sum payment and periodical payments at a rate of two percent of that sum while it remained outstanding, together with school fees for the children. In addition Mr Justice Moylan awarded costs in favour of Ms. Prest, with a payment on account. He also ordered Mr. Prest to procure the transfer of seven UK properties owned by Mr. Prest's companies, Petrodel Resources Ltd and Vermont. The transfer of these seven properties to Ms. Prest is in partial satisfaction of the lump sum order.

Mr. Justice Moylan concluded that there was no general legal principle of law which entitled him to reach the companies' assets by piercing the corporate veil. This is because precedent shows that the separate legal personality of a company cannot be disregarded expect where it is being abused. While accepting there is no relevant impropriety, Mr. Justice Moylan found that in applications for financial relief ancillary to a divorce there exists a wider jurisdiction to pierce the corporate veil. 

However, the majority of the Court of Appeal disagreed with Mr. Justice Moylan. Lord Justice Rimer held that the practice developed by the Family Division was beyond the jurisdiction of the Court except where either the corporate personality was being abused, or on the particular facts of the case it could be shown that an asset legally owned by the Company was held in trust for Mr. Prest. Lord Justice Rimer considered that Mr. Justice Moylan had rejected both of these possibilities on the facts, and therefore should not have made the order.   

The question before the Supreme Court was whether the Court has the power order the transfer of seven properties to his wife given that the properties legally belong to the companies.

In his written judgment Lord Sumption outlined three possible legal bases on which the assets of the companies may be able to satisfy the lump sum order against Mr. Prest.

The first basis is where a court is at liberty to disregard to corporate veil in order to provide effective relief. On this point, Lord Sumption agreed with Mr. Justice Moylan. While Lord Sumption acknowledged that Mr. Prest has acted improperly in many ways, he found no evidence that Mr. Prest was seeking to avoid any obligation relevant to the divorce proceedings.

However Lord Sumption disagreed with Mr. Justice Moylan that the legislation on property adjustment orders in connection with divorce proceedings might be regarded as conferring a distinct power to disregard the corporate veil in matrimonial cases:

I do not accept this, any more than the Court of Appeal did. [Mr. Justice Moylan] was entitled to take account of [Mr. Prest's] ownership and control of the companies and his unrestricted access to the companies' assets in assessing what his resources were for the purpose of section 25(2)(a). But he was not entitled to order the companies' assets to be transferred to [Ms. Prest] in satisfaction of the lump sum order simply by virtue of section 24(1)(a). (emphasis added)

Lord Sumption outlined three reasons for not giving the legislation the same effect as Mr. Justice Moylan did. The first reason is because it is axiomatic that the words in the statute are not read in a way that departs from the general system of law without expressing the intention of the legislation with "irresistible clearness". The second reason is the type of transfer in this case is ordinarily unnecessary to achieve a fair distribution of the assets. The third reason is because there is legislation on the avoidance of transactions intended to prevent or reduce financial relief. This is designed, in certain circumstances, to remedy a situation where a party attempts to frustrate proceedings by disposing of assets.

The third basis is on which the companies can be ordered to convey the properties to Ms. Prest is if the properties may belong beneficially to Mr. Prest. However Mr. Justice Moylan did not feel the need to make any decision on this issue.

In respect of the matrimonial home Lord Sumption concluded that, because the Prest family were not paying rent to Petrodel Resources Limited, this is a clear case of Mr. Prest using the company as a vehicle to hold legal title on the trust for himself. While the other five properties, Lord Sumption observed, were acquired by Petrodel Resources Limited in each case for a nominal consideration of one pound. As no explanation was provided to the Court for the "gratuitous transfer", there was nothing to rebut the presumption of equity that the company was not intended to acquire a beneficial interest in the properties.

The question for Lord Sumption now, was, who did hold the beneficial interest.

Of the seven properties, two of which were acquired in the name of Vermont, Lord Sumption concluded that Mr. Prest is the beneficial owner.

Therefore, in a unanimous verdict, the Supreme Court held that all seven properties should be transferred to Ms. Prest.