Smith v Scott (2007)

A declaration of incompatibility was made by the Registration Appeal Court under the Human Rights Act 1998 s.4(5) in circumstances where there had been repeated refusals to accede to a prisoner's request to have his name added to the electoral register. Despite the ruling in Hirst v United Kingdom, it was not possible to read down the Representation of the People Act 1983 s.3(1) to make it compatible with the Human Rights Act 1998 Sch.1 Part II Art.3.

S, a person who wished to be placed on the electoral register, applied to his local electoral registration officer who, on receipt of the information that the applicant was a convicted prisoner, acted in terms of the Representation of the People Act 1983 s.3(1) and refused to include his name in the Register of Electors.

S appealed to the sheriff on the basis that the decision breached his human rights. The sheriff refused the appeal. S appealed and the sheriff stated a case, asking whether it was correct to refuse S's appeal and esto it was, whether it was correct not to grant a declarator that the terms of s.3(1) Act were incompatible with the applicant's rights under the Human Rights Act 1998 Sch.1 Part II Art.3, whether by virtue of s.4 of the 1998 Act or at common law.

The secretary of state was joined as a party to the proceedings, who fully accepted both the decision in Hirst v United Kingdom, and that the Scottish Parliament was a legislature for the purposes of Art.3. S submitted that

(1) if there was some "possible" interpretation of s.3(1) which would remove the incompatibility identified in…