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Diversion Discretion And Legitimacy Notes

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CSPS Supervision 2 - Diversion, discretion and legitimacy Exercising discretion: Decision-making in the criminal justice system and beyond - Gelsthorpe and Padfield"Discretion is one of the most contentious concepts in criminal justice and related circles because it is so important yet so difficult to define."
? "The concept of discretion is critical to the meaning of justice". The origins of discretion
? From Plato onwards, discretion has tended to be equated with what remains after one has elucidated what the legislation or law should be.
? However precise the law, theory or policy might be, there is always a certain flexibility, ambiguity or discretion in how it is applied in practice. Defining discretion
? According to dictionary, discretion involves a liberty or power of deciding according to one's own judgement or discernment.
? At its simplest, discretion refers to the freedom, power, authority, decision or leeway of an official, organisation or individual to decide, discern or determine to make a judgment, choice or decision, about alternative courses of action or inaction.
? Baumgartner suggested that discretion is often a myth.
? Discretion takes on a different mantle at different points in the system. o In early gate-keeping stages it is sometimes referred to as 'diversion'. o But not all diversion is discretionary. Distinguishing discretion from discrimination and disparity
? Discrimination frequently tied to concept of prejudice - ideas that identify particular groups or individuals as 'inferior' or 'difficult'.
? Disparity most clearly associated with sentencing and the practice of giving different sentences for similar offences. o Also has wider relevance in terms of offenders and victims being treated differently or unequally throughout the criminal justice system when their circumstances are similar. How can we evaluate discretion?
? Whereas disparity concerns the consistency with which criteria are applied to cases, and unlawful discrimination commonly refers to the use of illegitimate criteria, both involve the exercise of discretion. o Suggests that discretion can work in a negative way where it leads to unwarranted disparity and discrimination.
? But decision-makers may discriminate in a positive way too.
? "To be fair, law and policy must be both certain and flexible".
? Unfettered powers of discretion can be applied in positive ways. o Need to maintain a balance between uniformity and individualisation of treatment.

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Nigel Walker (1999) notes that we must recognise mercy as something different from justified mitigation. o Notes that CPS may encompass 'mercy' within its decision not to prosecute within its conveniently ambiguous phrase 'not in the public interest'.
? Discretion is a force for ill when it leads to unjustifiable decisions (negative discrimination) and inconsistency (disparity), but it can be a good thing in that it provides a mechanism to show mercy which, even if defying precise definition, many would recognise as being necessary to the conception and delivery of justice. o Allows for justice to become 'humane'. Socio-logical research on discretion
? Socio-logical explorations have identified a number of variables that may influence the exercise of discretion in criminal justice systems: o Process o Environment o Context o Illicit considerations
? Process - there are numerous opportunities to divert cases based on legal or practical criteria.
? Exercise of discretion by officials takes place within a particular environment or cultural context, both in terms of the large social and political system and in terms of local factors. o These environmental factors often described as the 'local community'. o Bottomley: 'decision makers are directly and indirectly influenced by a variety of 'community' factors'. o The environment or community serves to constrain the exercise of police and criminal justice agency discretion by reporting or not reporting crimes, by participating in criminal justice process as complainants or jurors, by expressing views through specific interest groups and by expressing views through the media.
? Studies on occupational roles elucidate the working philosophies of different professional groups within the criminal justice system.
? Regarding the police, dominant themes: need to remain in control in encounters with the public, search for excitement in an otherwise routine existence and administrative biases.
? Exercise of discretion necessarily involves a power to decide. o Considerations of misuse of power.
? Davis (1969) notes that while discretionary power is necessary, the 'huge quantities of unnecessary discretionary power' should be cut back to ensure justice for individuals - focus here on US administrative systems. o More elaborate administrative rule-making may be a key to justice, if accompanies by better structuring and checking of discretionary power. o Highlights 'openness' as being key to fair exercise of discretion. o But Baldwin and Hawkins counter that more control does not necessarily mean better control.

??Bottomley (1973) acknowledges that conflicts and ambiguities are inherent in the system. o Suggests that not only is discretion indispensable for justice, but that it is right for us to question the various official claims about the principles which are intended to inform the process of decision-making. Dean Galligan (1986) believes that discretion can be kept to a minimum by regulating its exercise through fixed and certain rules. Hart (1961) argues that where rules conflict, a judge must use his discretion, his own conception of what is 'just' to 'invent' the law. o Dworkin (1977) argues that courts should decide hard cases on grounds of principles, not policy.
? Dworkin is keen to marginalise the role of discretion in defending his theory of law and does this by arguing that judicial decisions are based on arguments of principle.
? Discretion 'does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept'. Limiting discretion is not necessarily a good in itself, but a system of adequate control devices is essential.

Conditional cautions and fair trial rights in England and Wales: form versus substance in the diversionary agenda - BrownleeConditional caution created by Pt 3 CJA 2003. o Combines diversionary effect of a decision to warn rather than prosecute an offender with a power to make that warning conditional upon the offender agreeing to and complying with certain conditions. o Failure to fulfil any of the conditions renders offender liable to prosecution for the original offence, the earlier decision to caution being rescinded as a consequence.
? Code for Crown Prosecutors provides that a conditional caution may be used where a Crown prosecutor considers that while the public interest justifies a prosecution, the interests of the suspect, victim and community may be better served by the suspect complying with suitable conditions aimed at rehabilitation or reparation which may include restorative processes.
? Original wording in 2003 Act stipulated that the conditions attached to a caution must be intended either to rehabilitate the offender or ensure that they make reparation for their offence. Continuity or change?
? Extension of conditional cautioning scheme to include punitive conditions was strongly resisted in both Houses of Parliament. o Critics deemed proposed amendment 'highly undesirable' and an 'unacceptable price to pay for simple, speedy, summary justice' (Baroness Linklater). o Many argued with the fact that introduction of a 'punitive' conditional caution represented a fundamental change in the role of the prosecutor.

? Prosecutors would assume role of sentencers.
? Government argued that introduction of punitive conditions would fill a gap in the range of responses available to deal with anti-social behaviour.
? Argued that introduction of punitive conditions represented a logical extension of existing diversionary practices. o Even before the introduction of conditional cautions other ways of dealing with detected offenders while diverting them from the courts already existed. Punishment or diversion?
? If the new disposal is merely an extension of the existing diversionary options, then the same limited legal protections which apply to other diversions will suffice. o But if the conditional caution is a prosecutors' penalty affording the prosecutor summary powers of punishment equivalent to some of the powers of the magistrates, the case for importing fair trial rights consistent with spirit of Article 6 ECHR acquires great force.
? Conditional caution exists in what Ashworth calls 'the borderlands of the right to fair trial'.
? The more extensive the fair-trial requirements that attach to conditional cautioning, the less cost-effectively it will perform as a diversionary measure because the greater will be the proportion of criminal justice resources it consumes. Determining the legal status of the conditional caution and the relevance of Article 6 protections
? As Bingham observed in Durham Constabulary, caution most likely devised by police as a 'constructive and pragmatic' response to a class of cases which were too serious to be ignored or dealt with informally but which were not so serious as necessarily to call for prosecution.
? Caution appears always to have been distinguishable from a criminal conviction.
? Subsequent developments have reduced possibility of bringing a private prosecution against someone who has been cautioned.
? Characterisation of conditional caution as something distinct from does not determine the extent to which the process for the administration of the caution is subject to the provisions of the European Convention on Human Rights, particularly Art.6 which guarantees the right to "a fair and public hearing ... by an independent and impartial tribunal" in relation to "the determination ... of any criminal charge."
? Even though the Crown Prosecution Service is a creature of statute, the precise nature of the relationship between the public prosecutor and the executive arm of the state is not statutorily defined.
? Lord Bingham in Durham Constabulary on application of Article 6: "But the primary focus of the right is the trial itself, because that is the stage at which guilt is decided with the possibility of condemnation and punishment. I find it hard to see how a criminal charge can be held to endure once a decision has been made that rules out the possibility of any trial, or condemnation, or punishment." Form versus substance?

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Viewed through the lens of the Durham case, it might be argued that even if a public prosecutor cannot supply the guarantees of independence and impartiality required by the ECHR, this will not render unlawful decisions which prosecutors take to issue reprimands or warnings (and by extension, cautions including conditional cautions) because these essentially diversionary decisions do not engage Art.6 protections.
? Ashworth suggests that Bingham represents triumph of form over substance, but raises the question of whether as a mater of substance, the line for requiring safeguards is being drawn in the right place. The question revived: is it possible to have a punitive caution?
? In Durham, Lady Hale was willing to find that the reprimand and warning scheme was compatible with the Convention 'as long as the consequences of the decision not to prosecute do not amount to a penalty'.
? Renewed enthusiasm for substantive rights over formal definitions in this way would, in effect, be tantamount to deciding that the advent of the "punitive" conditional caution had indeed marked a departure from existing diversionary practices and that a novel form of disposal, a "prosecutor's penalty," had emerged. Protecting the suspect's waiver of rights
? One possible consequence of adding punitive measures to conditional caution could have been a requirement that the system for conditional cautioning should in future incorporate some element of direct and routine judicial oversight of prosecutorial decision-making.
? Although the right to a fair trial by an independent and impartial tribunal is an absolute right which cannot be modified or restricted by the state even in the public interest, it has long been accepted that the right "is not so fundamental that it is incapable of being waived if all the circumstances ... are known to the applicant and the waiver is unequivocal." o Waiver of Convention rights must be express, not inferred or implied. Conclusion
? The administration of conditional cautions will be subjected to greater scrutiny when it becomes clear that the acceptance of the caution has had undeniably punitive consequences for the person cautioned.
? The prospect that in future the conditional caution will be a vehicle though which offenders can end up performing unpaid work in the community or paying financial penalties reinforces the need to ensure that the cautioning procedure involves substantive rather than purely formal protections which ensure that those who are offered the chance to be cautioned on these terms make informed and free decisions as to the waiver of their Art.6 rights.
? The level of judicial scrutiny is likely to intensify with the advent of punitive conditions, in recognition that the borders between "administrative" justice and the right to a fair trial are, indeed, on the move.

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