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I once observed a trial of some disruptive protestors at magistrates where the magistrate read her verdict/ruling out along with all of her reasoning used to reach it. Her deliberations appeared to feature considerations of articles 10 & 11, and questions of whether or not it would be “proportional” to convict the defendants.

My understanding is that the HRA is subordinate to other laws where they bind an official by duty to act in a certain way, and they are only relevant either when an official has an optional discretion to act in multiple ways, or else for the purposes of an instantly-ineffectual “declaration of incompatibility”.

It seems to me that a judge’s function is to quite mechanically rule on the probity of the factual evidence to, for the purposes of delivering a verdict, ascertain factually whether or not the defendants committed the acts that would constitute, based on a deterministically objective reading of the statutes, they charged offence(s), and that there is accordingly no discretion at all to be observed in this exercise. In sentencing, on the other hand, that is where a judge, it would seem to me, must exercise their discretion in terms of what they feel is in the interests of justice.

But it would further seem to me, based on this trial that I observed, that one or more of these assumptions must be wrong, because the judge had considered not only factual questions of guilt, but also (apparently due to the Human Rights Act) whether or not it would be “proportional” even just to convict the defendants.

Why is the human rights act at all relevant to a court even just reaching a verdict on the questions of guilt?

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    Since you are asking about criminal law in England and Wales, you need to distinguish between judges and magistrates. In England and Wales it's not judges that bring criminal verdicts. In magistrates' courts, magistrates do. In crown courts, juries do. "Beyond reasonable doubt" isn't a phrase that's used in this jurisdiction either, although it's a common belief that it is. The concept of "discretion" doesn't apply to the bringing of a criminal verdict in either kind of court.
    – tell
    Commented Jan 15 at 18:57
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    Another consideration is that Magistrates are, well, a mixed bunch. They're don't have to have any proper legal training and their understanding of the actual law can be very thin indeed. Commented Jan 15 at 21:14

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While your understanding of the Human Rights Act is broadly correct, by section 3 of the Act, legislation must be read and given effect in a way which is compatible with the Convention rights. This means that proportionality analysis may form part of the determination of guilt of an offence which burdens a Convention right, but is subject to a defence of reasonable or lawful excuse.

As explained in the CPS guidance, this typically arises in the context of Offences during Protests, Demonstrations or Campaigns:

  • Where a defendant relies on articles 9, 10 or 11 as a defence to a protest-related offence, the first question is whether those articles are engaged. The conduct in question will fall outside the scope of those articles altogether if it involves violent intentions, or incites violence, or otherwise rejects the foundations of a democratic society …

  • If articles 9, 10 or 11 are engaged, the second question is whether the offence is one where the ingredients of the offence themselves strike the proportionality balance, so that if the ingredients of the offence are proved, and the defendant is convicted, there can have been no breach of his or her Convention rights. If the offence falls within this category, the court does not have to conduct a proportionality assessment …

  • The third question arises where Convention rights are engaged but proportionality is not inherent in the ingredients of the offence: whether there is a means by which the proportionality of a conviction can be ensured? This will usually be where the offence contains a defence of lawful excuse or reasonable excuse, which provides a route by which an assessment of proportionality can be carried out (another mechanism is through the court resorting to its interpretative obligation under section 3 of the HRA).

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  • Thanks for this answer but I find (especially the latter two of) the quoted CPS guidance bullets to be quite convoluted in their language and thus difficult to comprehend. If you could include in this answer a plainer elucidation of their meanings, it would be an appreciated improvement. Commented Jan 16 at 17:31
  • I think it also still doesn’t fully reconcile the perceived contradiction to simply point to section 3, which crucially begins with the words “so far as it is possible to do so,” which of course brings us then back to the titular question of whether or not judges, as a matter of course (ie even in the absence of a statutorily allowed “reasonable excuse” defence), have discretion in the deliberation of their verdicts. Commented Jan 17 at 9:23

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