Police and Policing – LAW3021

Lecture 3 -2021
Police discretion

Dr Layla Skinn
[email protected]
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 Aims

• To explain what is meant by ‘police discretion’ in theory and practic

• To examine where discretion arises in the police organisation and why it
is needed
• To consider some of the consequences of police discretion
• To examine some of the factors that influence police discretion
• (In Lecture 5 on accountability and regulation, we also examine the
mechanisms for keeping police actions and behaviour, including discretion,
in check).
.

3.1 What is discretion?

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 In simple terms
Police decisions not to invoke the criminal process largely
determine the outer limits of law enforcement … These
police decisions, unlike their decisions to invoke the law,
• From the 1960s onwards there was are generally of extremely low visibility and consequently
growing recognition that the police are seldom the subject of review. Yet an opportunity for
did not enforce the law all of the review and appraisal of nonenforcement decisions is
essential to the functioning of the rule of law in our
time in all circumstances system of criminal justice (Goldstein, 1960: 543).
• In simple terms, discretion concerns
• Whether to intervene in an incident
that comes to the attention of the
polic
• Includes not intervening
• How to interven
• BUT it is also more complicated (e.g.
think about what Chief Constables
do on a day-to-day basis)

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 Lawyers

‘Among lawyers, discretion has primarily attracted particular attention from those
who work in jurisprudence and administrative law. They have been concerned with
decision-making procedures and questions about the scope for the play of individual
judgment afforded within a structure of rules; they have been concerned also with
the nature of discretionary power, with the ways in which official authority is used,
and with questions of legitimacy. Another area of interest has been the means by
which discretion may be limited or guided in desirable directions. Most lawyers
think, characteristically, in terms of legal forms of constraint by rules, procedures, or
forms of accountability’ (Hawkins 1992, pv).
 Lawyers – some examples

• When the effective limits on a public officer “leave him free

to make a choice among possible courses of action or
inaction” (Davis, 1969: 4).
• Lustgarten talked about “room for decisional manoeuvre”
and, though they must work within the law, the police
operate with an almost infinite range of lawful possibilities
(1986: 10)
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 Social Scientists

‘Discretion is of interest to social scientists because they want to advance understanding

of the ways in which people reach decisions, and how various social, economic, and
political constraints act upon the exercise of choice. Many social scientists tend not,
however, to think in terms of discretion at all but are interested instead in decision-
making behaviour more generally, and the processes by which individuals and
organizations arrive at decisions about a course of action to follow. In keeping with this
approach, social scientists view law as merely one set of restraints upon, or guidance for,
individual action among a varied array of social forces. And, while social scientists
recognize constraint upon human choice that comes from rules or standards, they are
aware also that other kinds of constraints upon choice operate, including those which
officials and organizations impose upon themselves. The social scientist’s conception of
the desirable means by which to guide or control discretion accordingly emphasizes
matters such as the role of decision objectives, the incentives or disincentives to form of
behaviour, questions of socialization or training, or the importance of organizational
routines’ (Hawkins 1992, pv)
.

 Social scientists - example

• Discretion as a form of human agency

• Campbell (1999), for example, argues that police discretion,
like any form of human agency is rarely, free from constraint.
• Rather and drawing on Giddens’ structuration theory,
behaviour is structured and structuring, with the law being
only one of a number of limitations imposed on it.
.

 Socio-legal - example

• [D]iscretion is defined as police officers’ perceptions of

the quantity and nature of their authorised capacity to
make choices about different courses of action or
inaction, which are structured by and structuring of the
legal and administrative rules, as well as the wider
cultural and social structures that surround their work
(Skinns, 2019: 21-22)

3.2 Discretion in action:

Some examples

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 Decisions about whether to arrest
someone

Sometimes when I know a guy is 10-30 [wanted], I like to say,

‘Pick a number between one and ten’. He’ll say, ‘Six!’ And I’ll say,
‘put your hand behind your back’. ‘That ain’t fair man!’. But you
gotta have fun (Moskos, 2008: 115)

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 Decisions about whether to arrest

someone

No complainant Smoking marijuana

"A 19-year old standing in a street “More than nine out of ten patrolmen
fired three shots at a woman standing refuse to arrest for smoking marijuana in
in a doorway of her home but missed. public even though the possession of
The police apprehended him and even a tiny quantity of marijuana is a
knew that the neighbors witnessed crime. Supervising officers have generally
the shooting. But they released him asserted in our interviews that the arrest
when the woman asked them to. They should be made, but they generally
explained that they do not ordinarily acknowledge that they do not require
arrest when a victim is able to sign a their subordinates to comply with their
complaint but does not do so" (Davis, views" (Davis, 1975: 7)
1975: p3)

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Decisions about bail in police custody
– protecting vulnerable detainees

CV_CS1 said “… sometimes you have to break a few rules just

to do it for the right reasons” (CV_CS1). He gave two
examples of how he used his discretion to act outside of the
law to bail a child arrested for possession of a knife and a
vulnerable adult arrested for threatening to kill his wife, without
the presence of an appropriate adult, which is not legally
permitted under PACE
(Skinns and Wooff, 2017).

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3.3 Where and why does

discretion exist

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 Where is discretion located in the
police organisation?

• Discretion exists in all parts of the police organisation

• It is said to be greatest lower down the ranks, amongst officers on the
street, who make decisions away from the gaze of their superiors
about whether to arrest someone or not (Goldstein, 1960)
• Hence, the considerable role of police officers in dispensing justice on
the street, rather than such a role purely resting with judges in court
(Waddington, 1999: 36)
• However, police managers have discretion too, such as about how they
distribute resources, meaning that their discretionary decisions can be
more far-reaching (Lustgarten, 1986).
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 Policing the Covid-19 pandemic:

discretion in action
• Variation in issuing of Fixed Penalty
• Enforcement of coronavirus rules has
varied within and between police
Notices – one of the smallest forces in
E+W, Northumbria, has issued the
forces most
• Rules have changed over six phases of • Some forces e.g. the Met have varied
their approach over time, shifting from
restrictions, including 3 national
lockdowns (Brown, 2021) ‘explain and encourage
compliance’ (March 2020) ! issue
• Hard to apply in practice –
uncertainties about rules and who is
fines and enforce (Jan 2021
to enforce them e.g. in shops – • Some forces have been consistently
pro-enforcement e.g. Derbyshire
shopkeepers, shoppers, security
guards or the police? Police’s use of drones in March 2020
and the fining of two women in January
2021

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 The necessity of police discretion

"Police discretion is absolutely essential. It cannot be eliminated.

Any effort to eliminate it would be ridiculous. Discretion is the
essence of police work, both in law enforcement and service
activities. Police work without discretion would be something
like a human torso without legs, arms, or head ... But that
proposition is entirely consistent with two other essential
propositions - that excessive or unnecessary discretion can and
should be eliminated, and that necessary discretion should be
properly controlled" (Davis, 1975: 140-1).

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 The necessity of discretion

• The necessity of discretion is rooted in the diverse police role

• e.g. Discretion enables them to pursue the wide range of roles that
are expected of them (crime-fighting, social order maintenance,
social service, agency of last resort, enforcing the criminal law)
• It is also rooted in the complexity and vagaries of the la
• e.g. these complexities are such that the law always requires
interpretation in order to put it into practice
• Its necessity is thirdly rooted in the consequences of the law and
of police work
• Discretion can lead to unfairness and injustice but it can also result
in overzealous enforcement of the law which can also be
experienced as unfai
:

3.4 Critical issues

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 Discretionary decisions are hard to
challenge and erode the principles of
the criminal process
• Police decisions not to invoke the criminal law are ‘generally not subject
to the control which would follow from administrative, judicial, legislative,
or community review and appraisal’ (Goldstein 1960: 554)
• As noted in lecture 1, discretion can be misused. It enables the police to:
construct the crime statistics; construct who is criminal; act as judge and
juror on the streets; and engage in discriminatory practices.
• Furthermore, these problems with the misuse of discretion – e.g. in
terms of discriminatory practices –serve to erode the principles and
standards of the criminal process (e.g. consistency, equity, proportionality,
due process and justice).

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 Example – Unfairness in stop

searches and FPNs
Stop and search
FPN for breaches of Coronavirus
rules
• BAME citizens 4.3 times
more likely to be stop
searched • BAME citizens are 1.6
times more likely to be
• Differential pattern of stop issued with a FPN for
searches has grown since breaching Coronavirus
2013 rules
• Can be experienced as • This disparity goes up to
humiliating, embarrassing, 2 times more likely for
invasive, scary, upsetting, young BAME citizens
disempowering, unfair,
racially motivated. • Likely to be experienced
as unfair by BAME
citizens.

Online at: https://news.npcc.police.uk/

releases/independent-analysis-of- 21
coronavirus-fines-published
;

3.5 The influences on discretion

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 Influences on (police) discretion

• Discretionary decisions are influenced by a mixture of formal and informal

rule
• Formal rules include
• The Law and any associated codes of practice e.g. PAC
• Police policies (local or national)
• Codes of ethic
• Codes of best practic
• Informal rules include beliefs about
• The cultural context of the neighbourhoods being police
• Situational factors such as race, social class, gender, demeanour, reason for arres
• The outlook, role and rank of officers
• These ideas are encapsulated in Ericson’s typology, which examines “how do
criminal law and procedure, as well as other types of rules, relate to police
decisions?” (see next slide)
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Typology Discretion Rule structures

Following the - Discretion as a form of deviance. - Legal and administrative rules are followed at all times
rules - It is also largely unnecessary and to be and police powers, specifically, are a set of instructions to
curtailed if not eliminated. be followed.
- Rules eliminate discretion.
- Rules lead to police reform.
 
Using the - Discretion is inseparable from the law as - The law is inherently permissive and enables the police
rules “police discretion is part of criminal law” to pursue their own agenda (e.g. crime control over due
(p373). process)
 
Beyond the - Discretionary decisions have a logic of their - Rule structures are largely superfluous to discretionary
rules own that exists beyond the formal legal rules. decision-making and, at best, in the background.
- This knowledge is embedded in the role and
derived from the practice of being a police
officer.

Within the - Discretion cannot be thought of as deviance - Rules influence discretionary decision-making but only
rules per se as is the case for the ‘following the rules’ because they are embedded within police
type. However, not following communication communication processes.
procedures can be regarded as deviant.
 

Without rules - Discretion is dispersed through pluralised - In these global pluralised policing networks, policing
global policing networks. agents are able to work without being confined by legal
  rules as domestic law does not apply or private laws and
policies exist, instead.
 
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Source: Summary of Ericson (2007) taken from Skinns (2019: 25)

3.6 Key points
 Key points: Discretion

• Police discretion has been understood in different ways by lawyers and social scientists. The former
tend to see it, in essence, as mandated flexibility, whilst the latter tend to see it as a form of human
agency.
• Discretion is evident in a wide-range of decisions that police officers take, such as by operational
staff and senior officers.
• This serves to illustrate that discretion exists throughout the police organisation from operational
officers at the bottom to senior officers at the apex
• Police discretion is regarded as a necessary part of police work
• However, its existence also creates difficulties for the police and for citizens, by making
discretionary decisions hard to challenge and eroding the principles of the criminal process
• Nonetheless, it does exist and thus it is important to consider the kind of things that influence it,
including informal rules and formal rules (see Ericson, 2007) and also how it can held in check.

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