Legal - Discretion in the Legal System Essay

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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
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Meanwhile, Don Weatherburn as director of BOCSCAR expressed his concern as he stated; “it is naïve to imagine that a young offender, after years of involvement in crime, will suddenly become law abiding”. As a result, police discretion is a very important aspect of prosecuting juvenile crime, as it is clear that in some cases going to court should be the outcome for young offenders. However the role of discretion for police lies in being able to decide which cases and which circumstances warrant the result of court, as opposed to the multiple alternative forms of punishment that police have the power to enforce.

A controversial aspect of the criminal justice system is the Crown’s use of discretion when it decides to make charge negotiations. This means that the crown offers the accused a lesser charge should they plead guilty to it. In doing so, the crown benefits from the assured conviction (maintaining peace and security by an efficient means) and the accused benefits from a lesser sentence. However by employing powers of discretion in this case and making a deal with offenders, is seems to be at the expense of victims as there if insufficient retribution. The case of Nannette May (2009) epitomises the concern of victims, as May was not given a chance to give evidence against her attacker due to his acceptance of a

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