Discretion in the Criminal Justice System

Meaning of Discretion The power to determine guilt or innocence The power to determine guilt or innocence The power to determine sentencing The power to determine sentencing

Parties Impacted by Discretion in the Criminal Justice System Judge or magistrate Judge or magistrate Jury Jury Prosecutor Prosecutor Police Police Victim Victim Other legal authorities Other legal authorities

Application of Discretion Allows legal authorities to adjust and apply law in a way which best suits the situation Allows legal authorities to adjust and apply law in a way which best suits the situation

Abuse of discretion In some cases, where the ideals of law are ignored, the application of discretion can cause an overall abuse of power. In some cases, where the ideals of law are ignored, the application of discretion can cause an overall abuse of power. It is here that the efficiency and effectiveness of discretion to both individuals and society can waver. It is here that the efficiency and effectiveness of discretion to both individuals and society can waver.

Evaluating the application of discretion to the individual The implementation of discretion is done so with the goal to achieve equality and justice in all areas of the criminal justice system The implementation of discretion is done so with the goal to achieve equality and justice in all areas of the criminal justice system Discretion allows the judge to take into account individual situations as well as examining any mitigating or aggravating circumstances involved in a case. Discretion allows the judge to take into account individual situations as well as examining any mitigating or aggravating circumstances involved in a case. The Crimes (sentencing procedures) Act 1999 (NSW) limits judicial discretion by setting guidelines for judges to abide by The Crimes (sentencing procedures) Act 1999 (NSW) limits judicial discretion by setting guidelines for judges to abide by

Access to discretion: Appropriate access for all individuals is important to ensure justice and equity prevails in the criminal justice system Appropriate access for all individuals is important to ensure justice and equity prevails in the criminal justice system The cost of legal representation maybe prohibitive to some individuals, which may restrict their ability to obtain fair representation and access to the benefits of discretion in a criminal trial. The cost of legal representation maybe prohibitive to some individuals, which may restrict their ability to obtain fair representation and access to the benefits of discretion in a criminal trial.

Enforcing Discretion: The main role of judicial discretion is to decide on a punishment, depending on the events of a case and must also be consistent with previous decisions and with the Crimes (sentencing procedures) Act 1999 The main role of judicial discretion is to decide on a punishment, depending on the events of a case and must also be consistent with previous decisions and with the Crimes (sentencing procedures) Act 1999 Resource efficiency: In many criminal cases a police officer or person of legal authority will use discretion in order to determine whether or not an individual case should be sent to court for trial In many criminal cases a police officer or person of legal authority will use discretion in order to determine whether or not an individual case should be sent to court for trial

Evaluating the application of discretion to Society Reflecting society values in discretion: In a criminal case it is not only legal notions that determine how discretion is applied but also the moral beliefs of the society or individual enforcing discretion. In a criminal case it is not only legal notions that determine how discretion is applied but also the moral beliefs of the society or individual enforcing discretion. media article: “public bays for blood but the story is a fraught one” media article: “public bays for blood but the story is a fraught one” A “judicial error” caused an uproar in society as societal morals were not reflected in the application of discretion and it was perceived that discretion was not applied effectively in this case. A “judicial error” caused an uproar in society as societal morals were not reflected in the application of discretion and it was perceived that discretion was not applied effectively in this case.

Opportunity for appeal: If the accused feels the law has treated them unfairly they are provided with the right or discretion to appeal. If the accused feels the law has treated them unfairly they are provided with the right or discretion to appeal. Similarly, the prosecutor has the discretion to use the appeal process where they consider justice is not present in a decision. Similarly, the prosecutor has the discretion to use the appeal process where they consider justice is not present in a decision. The balance of individual and community rights and values: Discretion is often seen to be favouring one side of a case and therefore can often cause an imbalance between the rights of society and the individual Discretion is often seen to be favouring one side of a case and therefore can often cause an imbalance between the rights of society and the individual

Conclusion Access to discretion by all the parties to the criminal justice system is an important element in achieving justice. Access to discretion by all the parties to the criminal justice system is an important element in achieving justice. Access to discretion is beneficial to the efficiency and effectiveness of the legal system when applied with the values of equity and fairness in mind. Access to discretion is beneficial to the efficiency and effectiveness of the legal system when applied with the values of equity and fairness in mind.

The End.