Birrell's lawyers said some prisoners on remand can vote by post

Lawyers for Donald Birrell claimed his human rights were being breached by legislation which bans those in prison from voting.

Birrell is one of three Scots prisoners bringing legal action ahead of the parliamentary and council elections.

Earlier this week, Scotland Office Minister David Cairns vowed that the elections would go ahead.

He added that any effort to cancel them would be challenged.

Separate cases are being brought by the other two inmates, Derek Traynor and James Fisher.

They hope to halt the elections altogether if they are successful.

The moves follow a ruling in January by Court of Session judges that a blanket ban on prisoners voting was not compliant with the European Convention on Human Rights.

This is not a try-on or some kind of clever lawyers' attempt to get somebody out of jail free Aidan O'Neill QC

The Court of Session in Edinburgh has now heard that Birrell was let out on licence in May last year but is now back in jail after the licence was revoked last month.

His lawyers said some prisoners on remand awaiting trial do have the right to a postal vote and this would have been the case for their client if he had still been out on licence.

They are asking for the recall to be quashed so that Birrell has the right to vote.

UK legislation prevents convicted prisoners from voting, but in 2005 the European Court on Human Rights ruled that such a blanket ban was a breach of human rights.

Aidan O'Neill QC, representing Birrell, criticised the authorities for failing to act in time to prevent such a situation arising.

"This is not a try-on or some kind of clever lawyers' attempt to get somebody out of jail free," he said.

"This is bringing to the court the legal consequences of a political decision to go ahead with an election which unlawfully stops prisoners from voting."

Birrell, who was not present in court for the hearing, is also seeking �1,000 damages if the election goes ahead and he is not allowed to go to the polls.

Judge Lord Clarke will issue his decision on Friday.