Criminal Charges and Other Charges - Articles 8,9,10,11 - difficulties

Articles 8, 9, 10, 11.

These Articles may cause difficulties for magistrates. A number of offences, public order offences for example, can involve the exercise of a freedom that is within the reach of Convention Rights. Two general points:

 A person should not be convicted of a criminal offence in respect of the conduct protected by Convention Rights. Section 3 Human Rights Act 1998 permits statutory offences, such as in the Public Order Act 1986, to be interpreted for compatibility with the Convention. Similarly, section 6 of the Act would seem to require magistrates to give effect to these offences in a compatible manner. Of course if a magistrate is faced with an offence which is so expressed as to give no room for interpretation but requires a conviction despite the fact that a Convention right is being exercised then there should be a conviction and the defendant can then pursue a declaration of incompatibility from the High Court.

 If a person is convicted on a matter which relates to the exercise of a Convention freedom but the conviction represents a restriction of a freedom that the Convention allows (e.g., a restriction of freedom of expression in order to protect the rights of others) it is still necessary to bear the Convention right in mind when sentencing. Any restriction on freedom must meet the Convention requirements relating, in particular, to proportionality; see: Arrowsmith v United Kingdom (1979-80) 1 EHRR 737.

For these reasons it is important to bear in mind the general structure and main principles of Strasbourg jurisprudence that relate to these Articles.

Please read through Articles 8,9,10 and 11. Hotlink