THE CRIMINAL PROCESS AND THE ROLE OF DISCRETION.
Discretion is the ability to act or not to act- in law, the word ‘may’ is often used to denote discretion eg
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 (NSW) - SECT 99
Power of police officers to arrest without warrant
99 Power of police officers to arrest without warrant
(cf Crimes Act 1900 , s 352, Cth Act, s 3W)
(1) A police officer may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried
(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument
At each stage of the criminal process- from the commission of the crime until completion of sentence- participants within the criminal justice system (CJS) exercise their discretion and, therefore, can directly influence the outcome of the CJS.
Using Heineman 3rd Edition pages 83-92, outline all the discretionary elements in each stage of the CJS.
Stage 1 Investigative Stage
– reporting crime- (you need to think of other elements as well not presented in the book- issues of stereotyping/cultural/morals etc.)
– investigation (including rights of suspects/ search and seizure/ warrants/ technology); arrests (summons/interrogation/statements/illegally obtained evidence/citizen’s arrest)
– bail and remand
Stage 2 Adjudicative Stage
– plea (include plea bargaining, right to silence and legal representation- hearing (evidence, procedure - include burden and standard of proof, the nature of the adversary system) including the role of juries
– appeals
– personnel (police, prosecutors, defence lawyers, magistrates, judges)