Prisoners will continue to be unable to vote in elections or referendums following a unanimous decision of the five-judge Supreme Court yesterday.
A year ago, the High Court ruled that convicted arsonist Stiofan Breathnach, known as Stephen Walsh, had a right to vote in elections. It held the failure of the State to provide a means whereby Breathnach could vote breached the constitutional guarantee of equality before the law.
Breathnach, formerly of Castle Park, Sandymount, Dublin, was jailed for 15 years by the Special Criminal Court in 1993. He is detained in Wheatfield Prison, Clondalkin.
The High Court decision was appealed by the State to the Supreme Court which, in a reserved judgment yesterday, allowed the appeal.
Breathnach is registered to vote in the Dublin city constituency in which he ordinarily resides, where he sought to exercise his right to vote. The State acknowledged during the period of his detention, he had been unable to exercise his right to vote at local, parliamentary or presidential elections or in referendums.
It acknowledged there were no arrangements which would enable Breathnach and other citizens lawfully detained to exercise their right to vote in elections and referendums.
The State argued Breathnach's inability to vote was a result of his own actions and he could not be in a better position to vote than persons who were similarly unable to vote through no fault of their own. It argued that Breathnach wanted legislation passed which would provide for postal voting facilities for him and other prisoners.
The Chief Justice, Mr Justice Keane, said the position of remand prisoners should be noted. Since Breathnach did not come within that category, it did not arise directly for consideration.
If it did, a distinction might be drawn on the ground that unlike Breathnach, they were presumed to be innocent of the criminal offences with which they were charged.
What they had in common, however, with persons in the position of Breathnach was that they were detained in accordance with law and for as long as they were detained some of their constitutional rights, including the right to exercise the franchise, were necessarily in suspension or abeyance.
In a separate judgment, Ms Justice Denham said Breathnach was in a special category of person, he was in lawful custody. His rights were consequently affected. He was in the same position as all prisoners; there was no provision enabling any prisoners to vote.
Consequently, there was no inequality between prisoners, she said. The inequality as between a free person and a person lawfully in prison arose as a matter of law. It was a consequence of lawful custody that certain rights of the prisoner were curtailed lawfully. Many constitutional rights were suspended as a result of the lawful deprivation of liberty. It was a consequence of a lawful order, not an arbitrary decision.