The Supreme Court ruling that prisoners cannot exercise the right to vote follows previous judgments, writes Carol Coulter, Legal Affairs Correspondent

http://www.ireland.com/newspaper/ireland/2001/0712/hom16.htm

Thursday, July 12, 2001

In 1984 a woman called Mrs Draper was suffering from advanced multiple sclerosis. She was a registered voter, but was unable to get to her local polling station because of her disability. She sought a postal vote, but it was denied, as it was only available under electoral legislation to members of the Defence Forces and the Garda Síochána.

She challenged this in the High Court and Supreme Court, claiming that the State was in breach of Article 16.1.2, which says that all citizens over the age of 18 are eligible to vote. She also claimed that she was discriminated against, pointing out that some citizens did have the right to a postal vote.

The Supreme Court rejected her claim. It said that the Constitution stipulated that elections were to be regulated by law, and this law stated that the voter must mark the ballot paper in a polling station. Widespread postal voting was open to abuse, according to the court.

Mrs Draper seemed a deserving case to have her right to vote upheld by the Supreme Court. Yet, it found against her. However, later legislation did provide for postal voting for a category of "special voters".

Sixteen years later Stephen "Rossi" Walsh went to the High Court to have his right to vote vindicated. He was serving a 15year sentence in Mountjoy for arson following a conviction for setting fire to Collins's pub on Ballybough Road, Dublin.

Walsh had extensive knowledge of the law, much of it acquired at first hand. He conducted his own defence to the arson charge. In 1993 a Circuit Court judge said he ran a "diala-witness" service, and was behind a number of bogus insurance claims coming before the courts involving staged traffic accidents. Before the arson charge, he had convictions for larceny, armed robbery and assault.

While in prison he offered a legal advisory service to fellow prisoners. But much of his time was spent preparing his legal challenge to the denial of his voting rights while in prison.

In the light of the Draper judgment, there was surprise when he won in the High Court last year. His victory may have had something to do with the fact that the State had acknowledged that extending postal voting to other categories, such as prisoners, would not have imposed undue administrative demands. But, as the judge in the case, Mr Justice Quirke, commented, no such legislative provisions had been enacted.

However, yesterday the Supreme Court found that the State was under no constitutional obligation to do so. While prisoners were detained in accordance with law, some of their constitutional rights, including the right to exercise the franchise, were necessarily suspended.

This echoes a previous Supreme Court ruling when two other prisoners, married couple Noel and Marie Murray, sought to vindicate their right to have children. It was found that being in prison, lawfully convicted, brought the curtailment of certain constitutional rights.

However, Mr Justice Keane did point out yesterday that remand prisoners were in a different category, as they were not convicted. The State may have to consider putting in place some voting arrangements to anticipate a challenge from this quarter.

ccoulter@irish-times.ie