Also Featured In

© 2018 Streetkid Industries/Delphine Jamet

Police Discretion 2

August 12, 2013

Like any other industry or organisation, police services around the world experience issues of ethics in the process of conducting their work. Perhaps more than most, police are under an intense spotlight, their everyday behaviour scrutinised through various forms of media, political power and their own hierarchy. Types of police ethics that may arise that should be considered, include behaving honestly in a bid to abstain from corruption, complying with all set policies and guidelines, avoiding conflict of interest where possible, reporting the misconduct of colleagues and most importantly, treating everyone with equal respect and courtesy, elements which may play an important role in the use of discretion.
 

Discretion is based on decisions police make in their everyday duty as a police officer, whether or not they decide to arrest or caution a particular person or refer them to another agency for further assistance. “Certain rules apply but ultimately; the final decision will be made by the individual officer on the scene” (Hayes & Lauchs, 2009: 87). In many situations, police can do their job without having to invoke their power and even the awareness that the power exists is all that is needed (Stobbs, 2010: 75). The role of policing should be considered to mean more than enforcing the law, it is also to “resolve disputes and to relieve social, interpersonal and cultural tensions” (p. 76). In addition, police are required at times to be “counsellors, social workers, psychiatrists, ministers and even doctors” (Sarre, 1989: 105). The nature of the expanded police role past the point of simple law and order appears to place a weighted importance in the use of discretion for police officers as each situation they are called to is likely to be unique. For example, a suicidal client may require negotiation services rather than a simple arrest, even though they may be wielding a weapon in order to harm themselves.

 

 

In considering the types of discretion used on the job, the Western Australia Police Code of Conduct describes the terminology to include “take heed of relevant facts, be honest, impartial and consistent and never act arbitrarily or with malice” (2008: 11). This essay tends to examine what is discretion, how it is applied to various sections of the community and how it is monitored in a way to encourage fairness in regards to decisions that need to be made.

By law, police officers are required to treat everyone equally but their judgement can be based on their personal beliefs and upbringing experiences in addition to police culture, perhaps subconsciously. “In real life, police officers have many opportunities on a daily basis to treat people differently” (Hayes & Lauchs, 2009: 87) as a result of the variety of work they may encounter such as juveniles, victims of domestic violence, indigenous and homeless people. For young people, police have a range of options such as a verbal warning, written caution, arrest or referral to a Juvenile Justice Team. This may depend on whether or not the young person is a first time offender, admits guilt or even communicates positively with the arresting officers. For a person inebriated, a charge may be replaced with supervision in a holding cell until they are sober enough to be released, taken to the hospital for a check-up or referral to a shelter equipped with resources to deal with such a person like The Salvation Army or Bridge House in Western Australia.

 

Full enforcement of the law may not always be appropriate (Pollock, 2004) as an intervention can be enough to prevent a person from committing another crime or the matter may be trivial. In situations of domestic violence, an officer has the decision to arrest a person or do nothing at all. Officers have been reluctant to intervene within the private sphere until fairly recently, one reason due to “cultural perspectives on gender relations” (Rowe, 2007: 76) enhanced with the mentality ‘what is in the family stays in the family’. It is possible that officers feel that attending to domestic violence is a waste of time particularly due to the victim “being subjected to repeated physical, sexual and/or emotional violence may result in certain behaviours and thoughts which contribute to an increasing inability to leave the batterer” (Thyfault, 1984: 486). The real controversy may emerge when police decide not to make an arrest when they have every right to or enough evidence to present a case (Kocklars, 1985: 96). Instead they may choose to unofficially counsel those involved before leaving the situation, believing that things will settle down or issue a Violent Restraining Order or Misconduct Restraining Order which is valid for 72 hours (Police Orders – Information, 2013).

 

 

 

In a study by Luke and Cuneen, it was found that young Indigenous offenders in New South Wales were more likely to be prosecuted by police than non-Indigenous offenders, even if they had no prior record of court appearances or cautions (1990: 155). “Evidence shows consistently that Indigenous young people will invariably receive the most punitive option available” (Cuneen & White, 2010: 142). Factors to be taken into consideration could include a lack of family stability, offending parents, a past record of willing to attend court or perhaps being a ward of the state in the care of the government. Culminating with police attitudes of trying to clean up the street and eradicate ‘street crime’ the police may fail to use discretion when dealing with Indigenous Australians who appear at risk to themselves as well as the community.
 

There are many factors that can influence discretion including the officer’s attitude, the offender’s willingness to cooperate, hierarchy decisions to crack down on particular groups of people or anti-social behaviour and the officer’s behavioural influences of elitism. “Moral distance can occur when an individual assumes they are a better person because of inherent characteristics such as race, sex, age or socio-economic background” (Grossman, 1995: 161). There is an expression ‘having a chip on the shoulder’ which tends to refer to someone having a grudge against another person and/or a section of society and that person waits “for someone to say the wrong thing in hopes that they can instantly retaliate with heated vengeance” (Pewewardy, 2003:28). For a police officer, this could strongly influence their use of discretion.
 

It should be considered that “it is practically impossible for the police to enforce all laws on all occasions” (Reiner, 2000). In addition, the law requires interpretation for it to be carried out, which “inevitably entails a degree of subjectivity on the part of the officer” (Rowe, 2010: 99) and their interpretation could reflect again, a variety of personal characteristics, morals and experience. Police officers may have to prioritise the laws they can enforce which could also reflect a lack of resources (Rowe, 2010: 98). This requires a level of subjectivity to be taken into consideration and the same could be said in many other occupations where employees “are expected to exercise discretion when doing their jobs” (p.99). Health care practitioners may decide on one course of treatment over the other in the same way an officer chooses to enforce one charge over the other, although the conditions differ due to officers exercising “their discretion in conditions of relative invisibility” (p.99). Police officers are in a special category, a “position in that they embody the symbolic power of the sovereign state” (Rowe, 2010: 99). Junior officers, who appear to comprise the bulk of the discretionary powers on the frontline, have fairly little supervision and governance in relation to their decisions, therefore enabling them to make discretions they see as appropriate (Wilson, 1968: 7). Police autonomy is a crucial element which is intertwined with discretion.
 

There are a few options for members of the public to lodge complaints against police officers, including the Corruption and Crime Commission, Ombudsman and Police Complaints, the latter being a unit attached to the Police Service which is also known as Internal Affairs Unit. Two of the four aims presented by the WA Police Code of Conduct attempts to strengthen ethical culture and “coordinate targeting of areas of corruption risk” (Ethics and Integrity, n.d.) as a result of complaints, largely made by the public. It could be expected that as a result of investigations brought to the attention of these investigatory bodies, improving discretion policy could be a key issue that is the subject of debate.

Discretion is one of the most important police ethics to examine because it is one of the first responses when attending to an offender or young person at risk. By understanding how police officers use this power, we can have a better understanding of how these decisions are made. Unfortunately, there are a wide range of reasons behind discretion ranging from police culture, personal attributes of the officer, hierarchy influences and pressures and even the attitude of the offender being questioned. The hidden natures make it difficult to change or to improve, particularly when policy attempts to do so. This appears to particularly affect certain subgroups of society such as juveniles, victims of domestic violence as well as the Indigenous and homeless populations. Particularly the latter two, who may experience more police attention than the other segments of society, due to the visibility of their presence in public areas. Discretion is exacerbated by the influence of a wide variety of legislation and a lack of resources in place, amongst many other elements that may affect a consistent discretionary result. As this essay attempted to show, there are a multitude of factors that need to be considered when examining the use of discretion.

 

  

References
 

Cuneen, C., & White, R. (2010). Juvenile justice: Youth and crime in Australia. South Melbourne, Victoria: Oxford University Press.
 

Ethics & Integrity. (n.d.). Retrieved from the Western Australia Police Website: http://www.police.wa.gov.au/Aboutus/Ethicsandintegrity/tabid/1295/Default.aspx
 

Grossman, D. (1995). On killing. Boston: Back Bay Books.
 

Hayes, S., & Lauchs, M. (2010). Oversight, integrity and ethics. In Policing in Context. Eds R Broadhurst & S. E. Davies. South Melbourne, Victoria: Oxford University Press.
 

Kocklars, C. G. (1985). Selective enforcement. In The Idea of Police. Beverley Hills: Sage.
 

Luke, G. & Cuneen, C. (1990). Aboriginal over-representation and discretionary decisions in the NSW juvenile justice system. Juvenile Justice Advisory Council of New South Wales, Sydney.
 

Pewewardy, C. Dr (2003). 100 defensive tactics and attributions: Dodging the dialog on cultural diversity. Multicultural Education, 11(1), p. 23 – 35).
 

Police Orders – Information. (2013). Retrieved from the Legal Aid Western Australia Website: http://www.legalaid.wa.gov.au/InformationAboutTheLaw/DomesticandOtherViolence/Pages/Policeorders-information.aspx
 

Pollock, J. (2004). Ethics in crime and justice: Dilemmas and decisions. Belmont, California: Wadsworth.
 

Rowe, M. (2007). Who should read your mind? Time, 29 January: 76-9.
 

Rowe, M. (2010). Introduction to policing. London: Sage Publications.
 

Sarre, R. (1989). Towards the notion of policing ‘by consent’ and its implications for policy accountability In Australian Policing Contemporary Issues. Eds D. Chappel & P. Wilson. Sydney, New South Wales: Butterworths.
 

Stobbs, N. (2010). Police power and duties. In Policing in Context. Eds R Broadhurst & S. E. Davies. South Melbourne, Victoria: Oxford University Press.
 

Thyfault, R. (1984). Self defence: Battered woman syndrome on trial. California Western Law Review. 20(3), p. 485-510
 

Western Australia Police Code of Conduct. (2008). Retrieved from the WA Police Website: http://www.police.wa.gov.au/LinkClick.aspx?link:PDFs%2FWAPolice_Code_of_Conduct_Sept08.pdf
 

Wilson, J. Q. (196:8. Varieties of police behaviour. Cambridge, MA: Harvard University Press.

 

Share on Facebook
Share on Twitter
Please reload