Two murderers have lost a legal battle to win the right to vote in next year’s Scottish independence referendum for convicted prisoners.
Killers Andrew Gillon and Leslie Moohan, and a third long-term prisoner Gary Gibson, challenged the blanket ban on convicted inmates having their say at the ballot box on the country’s future.
But Lord Glennie today ruled that the judicial reviews brought by the trio, who are all prisoners in Addiewell jail in West Lothian, must be refused.
Gillon and Moohan are both serving life sentences imposed in 1998 and 2008 respectively after being convicted of committing murders and Gibson is serving a seven year and four month jail term imposed on him last year.
Gillon was ordered to serve a minimum term of 12 years for the slaying of Gary Johnstone, 25, who suffered repeated blows to the head from a spade in Bathgate, west Lothian. His punishment part period was finished in 2010 but he has continued to be detained on the ground of the risk that he poses.
The parole board is not due to look at his case again until September 22 next year _ four days after the date of the referendum.
Moohan was ordered to serve a minimum term of 15 years after murdering father-of-two David Redpath, from Peterhead, at a hostel in Edinburgh. He claimed he had performed “the last rites” on the dead body of the former oil worker.
He is not eligible for release until February 2023 at the earliest.
Lord Glennie said: “None of the petitioners is due to be released until after the date fixed for the referendum. They will all still be serving prisoners at the time of the referendum.”
As such they will be ineligible to vote under the terms of the Franchise Act for the referendum but each wants to cast a vote at the ballot box.
The trio claimed that the blanket ban on convicted prisoners voting in the poll was unlawful and incompatible with their rights under the European Convention on Human Rights (ECHR).
They also challenged the decision to exclude them from the franchise on the basis of constitutional rights such as the rule of law, right to vote and respect for international obligations.
They also claimed that where the result of the referendum would or might lead to the loss of European Union rights the blanket ban was contrary to EU law.
The European Court of Human Rights has previously held that a blanket ban on prisoners voting is unlawful following a case brought by axe killer John Hirst.
But Lord Glennie said it had consistently been held that the part of the ECHR concerning an undertaking over free elections by secret ballot applied to voting in elections for the legislature and did not apply to casting a ballot in a referendum.
The judge said it was quite possible that the Strasbourg court may revisit the ambit of that part and hold that it protects the right to vote not only for the legislature but also in a referendum.
He said: “It is, in my view, clear that the point has not yet been reached where a domestic court can say with any degree of confidence that the Strasbourg court will take that step.”
Lord Glennie said he had also come to the view that there was no clear European jurisprudence to the effect that Article 10 of the ECHR _ which protects the right to freedom of expression _ protected the right to vote.
“Complaints about restrictions on voting based upon Article 10 have frequently been held to be inadmissible,” he said in his judgement.
The judge also said: “Though I accept the existence of a fundamental or constitutional right to vote in general terms, I have come to the conclusion that that right does not extend to voting in a referendum.”
“In my opinion, any constitutional right to vote is, in principle, limited to the right to vote for the members of parliament. In Scotland it extends, by virtue of the Scotland Act, to voting for members of the Scottish Parliament,” he said. The franchise for electing MPs and MSPs is set by the Representation o9f the People Act.
“It is said, on the basis both of principle and of the Strasbourg jurisprudence, that a blanket ban on prisoners voting is not and would not be a lawful restriction on the basic right of everyone to vote,” said the judge.
He added: “But that is the position which the United Kingdom Parliament has adopted both for elections to that parliament and for elections to the Scottish Parliament.”
Lord Glennie said he was effectively been asked to hold that Westminster in imposing the prisoners’ voting ban was acting unconstitutionally, but added that was “an untenable position”.
The prisoners had claimed that EU law was engaged because the outcome of the referendum would affect Scotland’s membership of Europe and their status as citizens of the EU.
But the judge said he rejected their argument as “even taking the most benevolent view of the material put before the court there is no direct link between the independence referendum and any decision as to future membership or citizenship of the EU.”