Declarations of Incompatibility, Dialogue and the Criminal Law

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
fi nal 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 diffi culties
associated with the operation of dialogic review in the criminal law.