Declarations of Incompatibility, Dialogue and the Criminal Law. (March 2014)

• Record Type: Journal Article
• Authors: Davis, Fergal F.; Mead, David
• Is Part Of: Common law world review. Volume 43:Number 1(2014)
• Page Start: 62
• Page End: 84
• Publication Date: 2014-03
• Subjects: dialogic review -- democratic dialogue -- criminal law -- R v McR -- Momcilovic v the Queen -- Human Rights Act -- Victorian Charter of Rights and Responsibilities -- declaration of incompatibility -- declaration of inconsistent interpretation; Common law -- Periodicals; 340.57
• DOI: 10.1350/clwr.2014.43.1.0265
• Languages: English
• ISSNs: 1473-7795

Abstract

The past 30 years have seen the development of 'New Commonwealth' forms of judicial review. These models of review are characterized by an emphasis on institutional dialogue over either legislative or judicial supremacy. Thus, instead of giving courts a strike down power, dialogic review grants courts the power to declare legislation 'incompatible' with human rights norms while leaving the final say on the legislation with the legislature. This article explores the potential for controversy when such a non-binding mechanism is employed in the arena of the criminal law. In particular, it focuses on the Northern Irish case of R v McR and the Australian case of Momcilovic v the Queen . These cases demonstrate the difficulties associated with the operation of dialogic review in the criminal law.