Policing the police — when does discretion become dangerous?

Excessive discretion runs counter to criminal justice goals

Inevitably, the police must use some discretion in carrying out their job.

But too much discretion can be dangerous — it can promote discrimination, unpredictability and, most fatally, injustice. Allowing the police the discretion to pursue objectives counter to the criminal justice system is inherently problematic both in the interests of justice and for the effectiveness of the police at large.

The inevitability of discretion in policing is hard to dispute given the volatile, high pressure and often dangerous conditions under which the police operate. Lord Scarman in his 1981 report described discretion as at the heart of policing; stating not only does successful policing depend on it, but it is the policeman’s “daily task”. The police are often best placed, as the public’s first point of contact with the criminal justice system, to make vital filtering decisions.

An effective and workable criminal justice system relies on police discretion. The debate, however, surrounds the relative limits to this discretion.

There are dangers attached to over-reliance on discretion that can be universally accepted. For example, as one of its main representatives, the police should strictly adhere to the aims of the criminal justice system:

to deliver justice for all, by convicting and punishing the guilty and helping them to stop reoffending, while protecting the innocent.

Further, as a body of law enforcement, they should follow wider principles of the rule of law such as strict adherence to the written law, clarity and the avoidance of arbitrariness. Thus where police discretion becomes dangerous, in the interests of justice, is where they stray from the official purpose and principals of the criminal law in pursuance of their own aims.

And there are countless examples of the police pursuing their own aims. Choong’s Social Disciplinary Theory identified a ‘shadow system’ of policing driven by police-defined goals such as maintaining authority over, inflicting summary punishments on and subordinating those identified ‘criminal classes’ which is legitimised and hidden by, but entirely disconnected from the official system.

Hillyard et al found most arrests now terminate with no further action or a mere caution. This provides substantial weight to Choong’s theory of ‘police’ rather than ‘criminal’ cases where the police station represents the end and not the beginning of the process. These studies do seem to suggest a significant departure from the official purpose of the criminal justice system in pursuance of other, police-defined goals.

Whilst wide discretion may allow the over-zealous criminalisation of certain classes, what it also allows for, and perhaps even more dangerously, is the option not to pursue a case. Warburton’s case studies highlighted police preparedness to let offenders go with a mere caution if they were politely mannered and respectful, believing it better than ‘wasting’ time at the police station and admitting had they been ‘mouthy’ arrest would have been pursued. Here the police are effectively acting as a filter, using their own discretion to decide who enters the criminal justice system.

Left with wide discretion, local forces often operate conflictingly in pursuance of their relative regional priorities. Statistics highlight the wide variation, for example in relation to arrest rates with .011% of the population in Wilshire to .034% in Cleveland. Whilst some variation may be inevitable, a comparison of ‘standardized arrest ratios’ to ascertain a true comparison between forces found a significant North/South divide, the highest rates of arrests occurring predominantly in the North. Whilst protracting reasons for such statistics may be mere speculation, in a later report Hillyard stated that they could only be explained through different cultures and policies at police-area level.

Discrimination is perhaps the most dangerous consequence of excessive police discretion. The pursuance of those identified ‘criminal classes’ who reject prevailing norms is identified by the police as an effective policing method. This targeted discrimination is repeatedly uncovered by studies such as Mcara and Mcvie’s; an inter-relationship between low socio-economic background and hanging around on the streets made young, poor males much more likely to have contact with the police than their affluent counterparts. This focus on lower classes is particularly dangerous when assessing the injustice and counter-productivity of thus neglecting the potentially far more serious ‘white collar crime’ such as commercial bribery and tax frauds. Estimated that the UK alone loses £85.3 billion a year due to fraud, this discrimination is not only an injustice for those lower classes pursued but for society as a whole, making huge losses due to the incorrect prioritisation of crime.

Race-based discrimination within the police is particularly prevalent; a post-9/11 review of the way controversial anti-terrorism laws had been implemented found that 42% of those arrested were Asian, despite accounting for only 7.5% of the population. Police bias of who is ‘criminal’ may influence their work, for example black persons are six times more likely to be stopped and searched than white persons — according to the Ministry of Justice. Whilst this is dangerous in the interest of justice and the equal applicability of the law, wide discretion, particularly in relation to discrimination can have much wider, dangerous implications for the police themselves.

The creation of wider powers and greater freedom can be counterproductive for the police, portraying them in the community as too powerful and unrestricted. Think the ‘Tottenham Riots’ of 2011: the resentment for the police, triggered by the fatal shooting of Mark Duggan, was heightened by the frequent discriminatory stop and searches carried out by police. These events highlight the ‘danger’ of a breakdown of the police-public relationship; a culmination of the lack of trust, confidence and respect felt by many.

Yes, discretion may be inevitable for effective policing, but in excess it leaves the police unfettered to follow their own objectives, bend the rules to meet targets and apply their own personal prejudices. The result of which is a legal system that is inconsistent, unpredictable and, crucially, promotes injustice — counter both to the criminal justice system and more widely, the rule of law. However, more immediately, excessive discretion is dangerous for the police themselves: leaving them open to scrutiny; resented in the community and distrusted by minorities the result of which may not only be dangerous, but as has been exemplified, potentially even fatal.

Georgie Crotty is a final year law student at Bristol University.

Sources

Choongh, S. (1998) ‘Policing the dross: a social disciplinary model of policing’, British Journal of Criminology 38 (4): 623-634.

Hillyard, P and Gordon, D. (1999) ‘Arresting statistics: The Drift to Informal Justice in England and Wales’, Journal of Law and Society, 26 (4): 502-522.

Hillyard, P. (2005) A spatial analysis of crime and criminal justice in England and Wales: ESCR Full Research Report, R000237879, Swindon: ESCR

Mcara and Mcvie (2005) ‘The Usual Suspects?: street-life, young people and the police,’ Criminology and Criminal Justice, 5(1): 5-36

Ministry of Justice (2013), Statistics on Race and the Criminal Justice System 2012, London: HMSO

Scarman, L. (1981), The Brixton Disorders: 10-12 April 1981, London: H.M.S.O.

Warburton, H., May, T., and Hough, M. (2005) Looking the other way: the impact of reclassifying cannabis on police warnings, arrests and informal action in England and Wales’, British Journal of Criminology (2005) 45 113-128