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Benefits and Problems Associated with Police Use of Discretion Contemporary worlds police officers have quite enough discretionary powers and many times those powers are being questioned as to compliance with the rule of law. Walker once talking about police discretion stated: that discretion was discovered only in 1956 and that once discovered there were cries for its abolition (Kleinig, 1997: 81). In his statement he mostly talks about how to comply discretion's with the rule of law. From one perspective police is in need of these discretion rules for effective performance of their duties because of several factors. These factors include the issue that the law needs to be interpreted and applied to the situation according to the context of the situation, the law does not exclusively give motivations to perform in a certain manner; whereas enforcing the law is only one aspect of police duties and police may need to use it to make a spot solution to a problem that may arise. (Miller, Blackler & Alexandra, 1997: 64) On the other hand we have the law that says everyone should be treated equally and that the law should be applied upon everyone in the same way to ensure equity and fairness. This is where the law and discretion can conflict.
In this essay I will attempt to answer the question, Discretionary use of police power is compatible with the Rule of Law, and illustrate this answer, in a practical sense, with two case studies. Kleinig states that a public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action and inaction (1996: 82). This is police discretion in a nutshell. Police often work on their own or with one other person and have to make daily decisions, which require their discretion. This is commonly known as De facto discretionary power, as opposed to legal discretion, which refers to the officers individual ability to make discretionary decisions whilst unsupervised (Miller, Blackler & Alexandra, 1997: 66).
These decisions vary in importance. They can be decisions on minor matters, such as whether or not to issue a parking notice or they can be as major as deciding on whether or not to use a firearm. Therefore, the power associated with the police discretion is great; this power is willingness and ability to carry out any discretionary decisions. Villers describes this as Police constables have a strong element of discretion as to how they achieve their primary responsibility, which is to keep peace and they have an element of discretion as to when and how they apply the law (Villers, 1997: 106).
This leads to the needs of discretion. As mentioned earlier there are many needs for discretion, which include: 1) laws have to be interpreted and applied in their context. For example, it may be an offence to swear, but it would not serve the greater good to arrest a person who accidentally kicked their toe and swore as a result; 2) the law does not exhaustively prescribe. It leaves decisions to the police, such as, what is a reasonable person, reasonable force or reasonable suspicion.
For example, it would be up to the police to decide on whether or not to arrest a security guard at a pub, for removing a patron who is claiming assault, based on the amount of reasonable force that was used by that security guard. Reasonable needs to be considered by the police in all circumstances; 3) enforcing the law is only one of the end of policing. Police must often work as social workers, mediators, peace keepers and a variety of other roles on the course of their duties. When these various ends come into conflict, there is a need for the exercise of police discretion (Miller et al: 1997); 4) the police may need to find an on the spot solution to a situation. For example, the police may need to use there discretionary powers to decide whether issuing a traffic notice is more important than attending a police assistance call at an armed hold robbery. It is important to note that lawful discretionary power is only to be used when considering minor or summary offences.
There are also some situations in which the police can not use any discretionary power, such as in domestic violence disputes; they must arrest the offender. On the other hand, the rule of law is defined as The enforceable body of rules that govern society (Oxford Law Dictionary, 3 rd edition), tells us that everyone is considered equal and should be dealt with in accordance with the law, without prejudice or favor. This means that everyone should be dealt with by the law without considering circumstances. Perhaps the easiest way to describe this is, if two people are speeding at 10 km over the speed limit, then both people should be fined accordingly. It does not matter if one of those people had a medical emergency and the other is just a young hood who likes to speed. This is where the strict rule of law and discretion can conflict.
Due to the nature of discretion and the rule of law, it has been observed that discretion can be unfair as it discriminates, officers may be influenced by ones age, appearance, nationality etc. when making a discretionary decision. It can favor the rich and prejudice the poor. Discretion can lead to corruption; police may use their discretionary powers for unlawful acts, such as not arresting a friend who commits a felony offence. Having said the above, discretion is compatible with the law when used as it is supposed to be used. Discretion is designed to facilitate the law in order to prevent injustices from occurring, to both the police and the public.
Miller sums this up by saying, in relation to a case where the strict application of the law applied, the law is the instrument whereby the disproportionate harm will be done. Yet a fundamental aim of the law is to ensure justice, and the police have a particular obligation to ensure that the law is not used to bring about an injustice (Miller et al, 1997: 65). Police discretionary powers also allow police to prioritize their work, to go to the most important jobs first. It also saves the criminal justice system time and money. Practically, the criminal justice system could not cope with the strict application of the rule of law. It does not have the resources or the capability to cope with the police arresting and charging people with every single offence that a person may commit.
Discretion allows the police to use their powers for the greater good and to ensure that justice is met, as much as possible. However, this is not always the case. An example of the strict rule of law clashing with discretion can be seen in case study 5. 1 (Miller et al, 1997: 56). Here we have a young sailor who is detained at a Sydney seaport for possession of marijuana, the amount of which would be considered maybe enough for half a joint. The police knowing that if they arrest this person he will loose his job, will have to pay for expenses which he cannot afford, will be deported back to Britain at the states expenses. Knowing that he is the sole income earner for his wife and children and that he has not worked for over six months.
The police were willing to use their discretionary powers and let him go due to the minor nature of the offence. However, the Customs officer was not happy with this and called his supervisor, one thing lead to another and the sailor was eventually charged. When at court the prosecutor tried to secure a conviction which was not recorded but the magistrate would not assist and recorded the conviction. This is a clear case where the police should have been able to exercise their discretionary powers in order to prevent an injustice from occurring. In this case the punishment fare out weighs the crime and the greater good of the community was not reached, as a result of the Customs officer not allowing the discretionary process to proceed.
He had cost the state expenses in the courts and polices time, airfare to deport the sailor back to Britain and not to mention the sailors livelihood. The strict application of the law was a moral decision made by the Customs officer, which was wrong. He should have used his power, or at least let the police use their power of discretion, to choose the morally right course of action within his legal boundaries. Also the magistrate could have exercised his discretion in this situation. Kleinig states The community expects certain services from the police expects that police will exercise wise discretionary judgment so far as the resources, time and effort they devote to proving those services (Kleinig, collage lecture notes, 1987: 4).
The simplest, most efficient, time saving and cost effective action that could have been and should have been taken is to caution the sailor. Discretion can also work the other way. There can be cases when discretion is used and a person or persons may get away with a crime, creating an injustice to the community, as the law was not imposed when it should have been. However, in such cases the use of discretionary power usually creates an end that best suits the community, given the circumstances. An example of this is case study 5. 3 (Miller at al, 1997: 58).
In this case two police officers spot some members of a motorcycle gang selling and using cocaine. He then approaches the second officer, who is older and more experienced and informs him of the situation, then states that he is going to make an arrest at the end of the bands number. The second officer recognizes the gang members as Devils Advocates and knows that they carry guns and knives. Also, he knows that this particular gang considers it a point of honor to fight with police and that crowds at these concerts become violent when police attempt to arrest others on drug and alcohol charges.
This case leaves an outcome open. The discretionary question remaining is should the police arrest the gang members or not. The answer is no, they should not arrest the gang members and apply the strict rule of law, as it would not serve the greater good and possess to moral issues. If the police arrested these gang members, knowing that the have guns and knives, also that they will resist arrest and fight police in a crowded concert with 7000 young teenagers, then they are making a moral decision that says, its okay to risk the serious injury or even the death of crowd members, as long as we apply the rule of law. It is obvious that the police do not have the power to apply the rule of law in this situation and that discretion implies that the best thing to do is to wait until such a time that an arrest can be made safely, be it in one hour or in one months time, in order to avoid a gun fight with gang members at a rock concert. Knowing that the crowds at these concerts become violent when such arrests are made, an arrest would clearly indicate the police officers in physical danger, which should be avoided in this situation.
In conclusion, the ethical and moral discretionary decisions that the police have to make on a daily basis which concerns the greater good of the community and ensures that justice is served when ever possible, is compatible with the law when applied legally and morally with common sense and in the attempt of achieving justice. Discretion, or the strict rule of law, could not survive without one another. They are both necessary on order for the police to be able to conduct their duties effectively. However, there are those that will abuse their power and there will always be cases where discretion and the rule of law will conflict, as illustrated in the first case study.
Having said that, the community will benefit more from a police service that can exercise discretion, as opposed to one which cannot, as alternatives to arrest can be implemented which suite both the state and the public. These include cautions and warnings, which will assist in preventing injustice from occurring and hopefully further develop the relationship between discretion and the strict rule of law. Bibliography: Miller, S. , Blackler, J. & Alexandra, A. (1997) Police Ethics, Allen & Unwin, Sydney. Kleinig, J. (1996) The Ethics of Policing, Cambridge University Press, UK. Villers, P. (1997) Better Police Ethics. A practical guide.
London: Kogan Press. Muir, W. K. Jr. (1977) Police: Street Corner Politicians. University of Chicago Press. Kleinig, J. (1987) Lecture in course CRJ 321: Policing Ethics Spring Semester 1987 John Jay College of Criminal Justice.
Brien, A. (1999) Discretion and the Rule of Law. CSU & NSWP Academy Lectures Notes. (Unpublished) Essay by Johnny MAK (NSW Police Academy) Sydney Australia. Buckley, L. B. (1991) Attitudes toward higher education among mid-career police officers. Canadian Police College Journal 15 (4): 257 - 273.
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