Voting and mentally disordered offenders: a Scottish (and post-Brexit) supplementary

Rees and Reed advocate expanding the electoral franchise to convicted mentally disordered offenders, ¹ referring to a judgment of the European Court of Human Rights. The current prime minister has spoken in favour of withdrawing from the jurisdiction of the Court ² – a possibility in the era of Brexit – so their suggestion is unlikely to come to pass. However, they also provide a helpful summary of which mentally disordered offenders have the right to vote. We would like to reply with a summary of the situation in Scotland, which was notably omitted from their editorial.

The Representation of the People Act 1983 was amended in 2000 and has specific provisions for Scotland. Patients detained on civil provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 are eligible to vote by virtue of the amended 1983 Act, as are those subject to guardianship orders under the Adults with Incapacity (Scotland) Act 2000. Remand prisoners and civil prisoners are also eligible to vote.

Those at the pre-trial stage in Scotland may be detained in hospital on Assessment Orders or Treatment Orders. As untried persons, they can vote. By virtue of Section 3A(3) of the amended 1983 Act, those subject to one of the various psychiatric disposals are ineligible to vote. These are a Compulsion Order, which authorises hospital treatment, or a Hospital Direction, which authorises hospital treatment and return to prison when well enough, or a Compulsion Order and Restriction Order, which involves special restrictions. Those found unfit for trial and subject to a temporary Compulsion Order cannot vote, and neither can those admitted from prison on a Transfer for Treatment Direction.

That is all similar to England. However, in Scotland, patients can be subject to a unique form of community-based criminal detention without a precise English analogue. This is a Compulsion Order without a provision under Section 57A(2)(8)(a) to authorise detention in hospital. Such patients are ineligible to vote by a strict reading of the amended 1983 Act, which was probably not written with such a scenario in mind. Conditionally discharged restricted patients, living in the community, are also ineligible.

Even if the current position in Scotland is clear, the future is less clear. The Scotland Act 2016 has expanded the legislative remit of the Scottish Parliament with respect to electoral law, and the voting age for local and Holyrood elections has been lowered to 16, giving different franchises for elections to Holyrood and to Westminster.

So Holyrood could now legislate to expand the franchise for Scottish elections. However, there may be little appetite for Rees and Reed's recommendations, since the Scottish Parliament did not allow prisoners to vote in the 2014 independence referendum – a decision upheld in the Court of Session and the Supreme Court of the United Kingdom. ³