(Grossly) Disproportionate Sentences: Can Charters of Rights Make a Difference?

Monash University Law Review, Vol. 43, No. 1, pp. 195-237, 2017

Sydney Law School Research Paper No. 16/97

58 Pages Posted: 8 Nov 2016 Last revised: 21 Oct 2017

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: November 7, 2016

Abstract

A comparison between United Kingdom (UK) and Australian law concerning grossly disproportionate sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. While the relevant Australian case law suggests that there are virtually no restrictions on the state’s ability to enact mandatory sentencing laws in those jurisdictions without a charter of rights, the UK and Strasbourg courts have now made it clear that grossly disproportionate sentences cannot be imposed compatibly with Article 3 of the European Convention on Human Rights (ECHR), and that mandatory sentencing schemes are particularly likely to produce breaches of that Article. When further developing the law in this area, the UK courts and the European Court of Human Rights (ECtHR) should learn from the relevant North American jurisprudence, avoiding the excessively deferential approach evident in many of those authorities and embracing the Canadian Supreme Court’s more interventionist stance recently seen in The Queen and Attorney General of Canada v Nur and Charles. In turn, Nur provides further evidence that, when they are armed with a charter of rights, the courts can make a difference if they are courageous enough to do so.

Keywords: Grossly disproportionate sentences, mandatory sentencing, Article 3 European Convention on Human Rights, human rights charters, Chapter III of the Commonwealth Constitution, separation of judicial power, Australia, United Kingdom, Canada, United States

JEL Classification: K10, K30, K33

Suggested Citation

Dyer, Andrew, (Grossly) Disproportionate Sentences: Can Charters of Rights Make a Difference? (November 7, 2016). Monash University Law Review, Vol. 43, No. 1, pp. 195-237, 2017; Sydney Law School Research Paper No. 16/97. Available at SSRN: https://ssrn.com/abstract=2866162

Andrew Dyer (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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