Assess the role of discretion and its application in the criminal justice system.
Discretion refers to the freedom to decide what should be done in a particular situation. This can beseen in both a positive and negative light as the police and court can both use discretion which can bedamaging to either party in court in terms of achieving justice. The role of discretion within the criminal justice system has many advantages and disadvantages in the way it deals with achieving justice forindividuals. Discretion can be explored through contemporary examples within the criminal justicesystem from the investigation process till the punishment.The Law Enforcement (Powers and Responsibilities) Act 2002 outlines the powers the police have been
given and can carry them out under their discretion. In the newspaper article “NSW police probe‘unnecessary Tasering” (ABC News
15/06/09) we see how a 38 year old man is taking civil action for thealleged misuse of a Taser by NSW police. However the State defended this as the police used it only tobring perpetrators to justice and that the sight of a Taser has been able to resolve conflict in 55% of thetime it has been pulled from the holster. The Tasers have also been fitted with built in video cameraswhich record as soon as it is unholstered in order to discourage improper use of them by the officers.This shows that police powers regarding Tasers can be used at their discretion and that it is only used inorder to benefit the criminal justice system and has been effective in benefitting the justice system.In some situations when police use their discretion, it may be both effective and ineffective. In the
Newspaper article “No Toying with Doncaster pistol pointer” (Manning Ham
-leader 07/03/12) we see
how police used “discretion when applying the law and focus on the intent of any person found carryingan imitation firearm” after a series of calls were made to police where a
44 year old man used a toy gunand pointed it at traffic. After a reform in July last year and toy which could be mistaken for a legitimategun could be classified as a prohibited weapon, which the possession of, carries a maximum penalty of two years. However due to police discretion this prank was seen as a prank and the offender escapedreceiving up to 2 years imprisonment, showing the benefits of discretion for the accused in this case.
However the victims in this case said that they “feared for their lives”
and believed that justice was not
achieved since the accused’s punishments were far from what they deemed sufficient.
This case showshow police discretion has had both a positive and negative effect from a single case.The burden and standard of proof is essential to the criminal trial process. The collection of evidence isup to the discretion of the detectives and is a crucial aspect in the criminal trial process. In the
case of “Rvs Porter (1936”, where Porter used the defence of insanity for the murd
er he committed. This type of discretion allows an individual for the chance to be actively involved within the trial process.Sentencing and punishment has actively involved the discretion of judges and magistrates in affectingthe decision of the senten
cing. The newspaper article “Die in Jail: Carr’s new sentences” outlines how
new laws will allow judges to use their discretion to impose a penalty below the minimum standardafter giving an explanation for their decision. However if unable to give an explanation the minimumprison sentence must be imposed unless there are mitigating factors. The aim of this is to seekprotection, rehabilitation and deterrence so in order for post-sentencing considerations, judicialdiscretion is involved. The justice system commonly fails to look at the considerations of the victims and
An old adage reads, "Discretion is the best part of valour". Yes, this was true to a great extent in the early parts of man's existence, but today what discretion has been converted to is just simple favouritism of the ugliest appearance. Discretion has been so shamelessly used that, it has lost its real meaning.
Just because rules and laws cannot, just cannot be made for all possible eventualities, the use of discretion was given to people in high places, and to people who matter. This discretion was meant to be used with caution and sparingly, only where and when necessary.
This discretion was also meant to be used for the furthering of a task. However, with the passage of time, this discretion has come to be used as a tool for furthering personal interests rather than furthering tasks in hand. In this way, the discretion meant to be a blessing for people to see work move smoothly, has become a curse to activities of human existence.
This is because, just as man misuses all his other rights, he is found misusing this right of using discretion also. The idea of giving this discretion was originally to help him utilise whatever is available to him for the best use for work.
However, it is mostly seen that it is conveniently converted to favouritism. With an eye on future gratification, discretion is used to serve personal advantages rather than the advantage of work.
Favours are given not to the most deserving or to those who need the favours to work more efficiently, but, to those from whom advantages may be reaped at a later date.
Let us see for example just one most glaring example of the misuse of discretion. At one time, petrol pumps were opposed to be allotted to war widows. This was a very noble idea, it would enable them to become financially self efficient in the face of the loss of the husband, who was the bread winner.
However, this correct decision turned out to be in reality a hoax. These petrol pumps became a source of income not for the war widows but for the sanctioning or allotting authority.
The pumps were allotted to people of all different hues and colours who would in turn give some advantage to the authority that sanctioned the pumps. In this way, the discretion meant to be advantage to the needy, accrued advantage to the authority that sanctioned the pumps.
This is just one example of the misuse of discretion. Human nature is so weak and greedy and also selfish that, rosy ideas of the like of discretion become more of liabilities than assets. Either the wrong people reap advantages or, the authority takes advantage and it all becomes a genuine hoax.
Thus, in my view, we need discretion only when we are highly disciplined and in the possession of a flawless character. Without these qualities the concept of discretion is just a curse. I feel that, at least in India we do not deserve to have any discretion of any type as, we are prone to misuse it just as we misuse all other advantages given to us.