Legal - Discretion in the Legal System

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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 powers given to police in the criminal investigative process. The responsibility of enforcing criminal always and ensuring they are adhered to lies with the police in the prevention and detection of crime. The role of discretion is key to whether a crime is even investigates, as well as how an offender may be treated or punished later. Police are able to decide to investigate, make arrests, interrogate suspects, employ powers of search and seizure and grant bail to a suspect, all based on their discretion, in order to uphold justice for the victim of a crime in convicting criminals. These decisions are all examples of how discretion is employed by police and determine how an individual is treated throughout the investigation process in the legal system.

Further, police are able to employ discretionary powers when dealing specifically with young offenders. Under the Young Offenders Act 1997 (NSW), police are able to decide, based on individual circumstances, to issue cautions, warnings or fines and whether or not to use more serious measures such as youth justice conferencing. These options all act as alternatives to court for dealing with young offenders. While a study for BOSCAR has found that the centerpiece of the states...
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