The Ubiquity of Discretion

From Uni Study Guides
Jump to: navigation, search

This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 119-142.


[1] A lot of things in the criminal law process are determined according to discretion rather than any formalised law. Discretion therefore constitutes an important part of the criminal process.

P Goodrich in Reading the Law[2] summarizes the “pervasive yet little acknowledged role of discretion within the decision marking processes throughout the legal order, and not simply within the process of explicit adjudication”.

  • In all areas of the law there is technically a lot of freedom in how to apply legal norms.
  • This discretion (which isn't a designated source of law, but rather is influenced by politics etc) influences decision-making.
  • These informal and discretionary factors sometimes influence the criminal justice process more than officially designated written and unwritten sources of law.
  • An adequate account of legal decision-making processes should take into consideration the entire process of social regulation (starting with the discretion of the police, and ending with the discretion of the judges).
  • Things like dress code, adherence to court room principle and manners could be extremely important to the outcome of the trial because of the discretion allowed to the judge (ie, the judge might exercise his discretion and give a harsher or a lighter penalty. He may be more inclined to give a harsher penalty simply because the defendant is badly dressed or rude)

PP McGuinness in 'The Price of Liberalism':[3]

  • Various forms of summary offences legislation gave police powers, which were potentially subject to abuse. These were power which can be described as 'low level terror'.
  • The system did not abolish crime, of course, but it did control and channel it.
  • A combination of naivety, civil libertarianism and resentment of police roughness directed at middle class demonstrators, led to the relaxation of all the mechanisms of control over criminals which had developed over previous years.

The Extent and Regulation of Discretion

[4] The extent of discretion is not recognised by the public, who assumes that the criminal process is a sort of an orderly sequence of cases through the system. In fact, discretion plays a massive part in every step of the process:

  • Victim/public: do they report it to the police?
  • Police: where and how to respond (is it worth responding?), how to investigate, how to allocate resources, which suspects to arrest, do they prosecute or give a warning etc
  • DPP (Department of Public Prosecutions): do they proceed to trial, what charges should be laid, what evidence or witnesses should be involved?
  • Defence counsel: decide whether to represent and/or provide legal advice.
  • Judges/magistrates: committal decision (ie, whether there is a 'case' here and it should properly go to trial), admission of evidence, granting applications (such as adjournments etc), admissibility of evidence or witnesses, sentencing.
  • Corrective services/ parole board: self explanatory.

The exercise of these discretion depends on a wide array of factors, ranging from formalised legal principles to prevailing ideologies to commonsense principles.

The question arises whether the extent of discretion is a good or a bad thing. It has been argued that not only is discretionary inevitable, but it’s desirable. What is necessary is that this discretion be exercised in a fair an open manner. Guidelines must be created for the exercise of discretion.[5]

Illustrations of Discretion

Constructing the Suspect Population

[6] How do police identify suspects? The public expects that police will be able to differentiate suspects from people.

  • However, the 'suspect population' which the police makes is not a smaller part of the criminal population, but rather the other way around. There is a bigger suspect population, out of which a certain number are actual criminals.
  • In short, the suspect population is a police construct. It is constructed on the basis of a complex interaction of rules and principles.
  • These are police rules and principles, rather than legal ones. They arise simply from the discretion which the police enjoy.
  • The police often first decide what they're going to do, and then tailor their actions within discretion (rather than seeing what they can do, and then act).This works because the law is sufficiently vague and flexible to allow the police very extensive discretion.

Police Move-On Powers

[7] The extent of discretion can be illustrated by the application of 'move-on powers'. s 28F of the Summary Offences Act[8] gave police the power to disperse people where their presence may intimidate or harass others, obstruct traffic, or provoke an environment of fear. The NSW Ombudsman made a report on the use of those powers:

  • Powers were mostly used against young people, and young aboriginals especially. They are very compliant when told to move on.
  • The purpose of the powers is to disperse the people before a situation gets out of hand. However, data shows that it is relatively unlikely that a situation will get out of hand with young people (most fights etc involve people over 26).
  • This means there is a discrepancy between the purpose for which the powers were given, and the purpose for which they are exercised.
  • Example is given of where a group of aboriginals were dispersed by police when they were sitting by a church, not doing anything. The police showed excessive presence (multiple cars, a dog etc). The police told the elderly who were coming out of the church that they dispersed the young aboriginals, and the elderly were relieved because they were intimidated.
  • Police admitted that they have been using them for years before the statute. Some said nothing has changed, others said that they are relieved that they are now allowed to do it by statute, and therefore can properly enforce the move-on powers.
    • Some say the statutory power is used as a back-up power - ie, give an informal warning to move, and if not complied with, a proper move-on as by statute.
  • Police rarely comply with the procedures required when issuing a move-on notice (ie saying their name and place of duty, gave reasons etc).

Young Offenders Act 1997

[9] The Act introduced a diversionary scheme in relation to young offenders involving warnings, cautions and youth justice conferences. Monitoring of the impact of the act suggests that it led to a substantial increase in warnings and cautions, and a corresponding decline in court proceedings.

The Act was considered by J Chan et al in 'Regulating Police Discretion: An assessment of the impact of the NSW YOA 1997':[10]

  • Consultation of stakeholders suggests that there was general acceptance of the Act among practitioners, although pockets of resistance remained among police and some magistrates.
  • Data shows the act has led to a substantial increase in the use of cautions and warnings, and a corresponding decline in the use of court proceedings.
  • Aboriginal young people were still more likely to be taken to court and less likely to be cautioned than non aboriginal young people, even though they were equally likely to be given warnings or referred to be conferenced compared with non-aboriginal young people.
  • The Act appears to strike a good balance between flexibility and precision in the types of rules applied.
  • The investment in training, education and regular promotion of the YOA, both in the police and the DJJ have also strengthened the 'interpretive community' consisting of representatives from different agencies, including the police.

Non-Justifiability of Selective Law Enforcement

[11] The discretion of the police to to not arrest someone cannot be scrutinised by the court. This is considered in Wright v McQualter:[12]

  • Facts: in a demonstration, the defendant was arrested and others weren’t. The defendant questioned his discretion to not arrest others,
  • Held: police can elect to decide who are actual wrongdoers and only arrest them (this is called 'selective law enforcement'). The courts role is to judge those brought to court, not to scrutinize the selective decisions of the police force. The regulation and reflection to selective law enforcement is the role of the government.

Discretion of the Prosecution

[13] The prosecution has numerous discretions, including:

  • Deciding to prosecute or not to prosecute;
  • Which charge(s) to lay;
  • Whether to support a 'no bill' application (an application not to proceed);
  • Whether to grant a witness immunity;
  • Other decisions.

There are various guidelines which should be followed when exercising such discretions.[14] Below are the key guidelines:

  • The main question is whether the public interest requires that a matter be prosecuted. This is resolved by determining:
    1. whether the evidence is likely to prove the each element of the offence.
    2. whether there is a reasonable prospect of conviction.
    3. whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest (involves consideration of many factors, such as the seriousness of the offence etc).
  • Availability of resources should be taken into consideration - they should not be wasted on pointless cases.
  • Alternatives to prosecution, including diversionary procedures, should always be considered.
  • Personal or subjective factors (ie feelings of the prosecutor) should never be considered.

The discretion whether to prosecute is illustrated in the 'Chaser' case:

  • Facts: a couple of people from a tv show pulled a prank during APEC (diplomatic conference in Sydney) by bypassing security dressed like terrorists. They didn't even expect to get as far as they did, and then they turned back. The police prosecuted them.
  • Held: Since the offence was one of strict liability, the defence of honest and reasonable mistake is available and the court applied it immediately, being certain that the prosecution will not be able to refute it. Another defence was that they had special justification by reason of their requirement to be there for work-related purposes.


This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, p. 119.
  2. P Goodrich, Reading the Law, (1986) in Textbook, p. 119.
  3. PP McGuinness, 'The Price of Liberalism', Sydney Morning Herald, 8 March 1995 in Textbook, pp. 119-20.
  4. Textbook, pp. 321.
  5. Sallmann & Willis, Criminal Justice in Australia (1984).
  6. M McConville et al, The Case for the Prosecution (1991) in Textbook, pp. 121-2.
  7. Textbook, pp. 122-3.
  8. Now ss 197-198A of the Law Enforcement (Powers and Responsibilities) Act 2002.
  9. Textbook, p. 127.
  10. J Chan et al, 'Regulating Police Discretion: An assessment of the impact of the NSW YOA 1997' (2004) 28 Crim LJ 72 in Textbook, pp. 127-30.
  11. Textbook, p. 136.
  12. (1970) 17 FLR 305.
  13. Textbook, pp. 138-42.
  14. Prosecution Policy of the Commonwealth: Guidelines for the making of decisions in the prosecution process; Director of Public Prosecutions New South Wales, Prosecution Policy Guidelines.
Personal tools