Legal - Discretion in the Legal System
Explain the role of discretion in the criminal justice system.
As a society we believe that offenders should be held accountable for their actions but also treated fairly in the criminal investigation, trial process and sentencing. As a result of this, the power of discretion, that is the ability to choose from a range of options, is granted to some authorities ensure some flexibility for decision making within the system, enabling a more holistic outcome for all parties involved. The issues that explore and reflect the role of discretion within our criminal justice system are police discretion, charge negotiation and judicial discretion in sentencing.
The first aspect of the legal system in which discretion is used is in the
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However, at the same time through the case of Dib V DPP, we can see that safeguards do exist that protects the rights of individuals and the unjust use of discretion. The crown accepted a plea of guilty to a lesser charge of manslaughter but Justice Hulme rejected the deal based on the grounds that it was “an abuse of process, with an unwarranted and perverse view of the facts”. Further, Justice Hulme, in 2011, criticized the DPP’s (Nicholas Cowdrey) widespread use of charge negotiation, calling the practice “a disgrace”. This supports the opinion of the former Attorney General, John Hatzistergos as he states “for the public to have confidence in the criminal justice system, it is important to see offenders held accountable for their crimes”. The community wants to see offenders punished for their crimes and in most cases, the role of discretion in charge negotiations still enable this, despite some frustration from victims. Further, where there are potential flaws in the system, it is largely true that appropriate safeguards do exist to ensure that the process is not exploited and overused in the future, however it still can be seen that the role of discretion needs to be limited and monitored in the case of charge negotiations, to ensure a holistic outcome for offender, victims and society.
Lastly, judges are granted the power of discretion