Common law police discretion pdf

What are the benefits and the potential dangers of police discretion. Issues such as the potential for racism, sexism and socialism are everpresent in everyday policing. Materials and commentary on criminal law and process in new south wales, 5th edition, federation press, 2011, pp. Some claim racial bias in the application of force while others argue that the bias is against the police officers. It is seen by many to be both an essential part of policing as well as a constant source of issues. The usual distinction to be made between the two systems is that the common law system tends to be casecentred and hence judgecentred, allowing scope for a discretionary, pragmatic approach to the particular problems that appear before the courts. We are limited by law and our department policy, but, to be honest, often times real police work becomes an art of tapping into your common sense. The defining characteristic of common law is that it arises as precedent. Police powers of arrest and detention 1 introduction. Common law system foundations for excluding evidence. The title page and reference pages do not count in the three required pages. Proper use of police discretion 2109 words 123 help me. It addresses the two most common interactions between. The misuse of police powers in officerinvolved domestic.

On the idea of bureaucracy as a combination of rigid rules and lowvisibility discretion, see alvin gouldner, patterns of industrial. Neighborhood or community influences the last mode of police discretion is based on community or neighborhood influences. Exclusion of evidence under section 78 of the police and. Essay on proper use of police discretion 2124 words. Law enforcement officers have the power of discretion, through proper protocol when using federal, state and local law guidelines to choose if a. Common law police powers and the rule of law steve coughlan. Key justice participants in a common law system police. The position thus seems to be that although in theory it is possible for evidence to be excluded on the basis of the common law rule rather than s 78, in practice this is unlikely. 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. Discretion is the capacity an individual police officer possesses to make a choice among a number of possible courses of actions.

In this case, police are given discretion, or freedom to decide, on the job to make decisions, but there is a thin blue line that the police cannot cross or they will be in violation of the law. However, due to the great amount of discretion given to law enforcement officers, mistakes are routinely made and discretion is abused. Criminal law commonlaw misdemeanors official misconduct mens rea the measure of what constitutes official misconduct is an imbricating continuum of proof that runs from evidence of conduct squarely within an officers discretion undertaken. Police strain the truth to protect loved ones and crime victims. Law write a three page paper double spaced on police discretion. You will find information pdf that needs to be use attached. Although the law legitimizes the police officers power to intervene,it does notand cannotdictate the officers response in any given situation. Forming suspicion and making a stop abstract most police activity occurs in private, away from the publics view. Decisionmaking by canadian police in individual cases is governed by common law, statutes, and case law. Crime control cannot be effectively achieved through the enactment of laws unless the public supports sufficient police discretion in the enforcement of criminal laws. The consequences of police discretion in the police 1199 words 5 pages.

As with all law enforcement decisions,the police must exercise discretion in choosing the most appropriate disposition. A lot of things in the criminal law process are determined according to discretion rather than any formalised law. As stenning noted, discretion pervades common law systems of criminal justice at every stage through arrest, prosecution, trial and sentencing, and may be contrasted with the principle of legality that ostensibly seeks to limit discretionary justice, more or less, in many. In this essay, i first provide a brief overview of the history and evolution of police discretion from the 1960s to today and explain how its exercise has been impacted in recent decades by the war on drugs and the adoption of broken windows policing. What are the benefits and the potential dangers of. Police make all kinds of excuses to get out of nuisance calls. The law enforcement powers and responsibilities act freehills sydney\004930395 printed 1 june 2011 9. The police departments general order 924 purports to limit officers enforcement discretion by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas.

Common law is the legal system used in england and wales. A good example of this is when, in return for information about more serious offending or offenders which it could not otherwise easily obtain, a police service. The police do not arrest every individual caught breaking the law. Law of evidence assess coursework law general essay. In this case, police characteristic is one of the most often debated issues in criminal justice. In r v christou 1992 qb 979 in an area plagued by robberies, the police had set up a spoof jewellers shop and had videotaped, among other persons, thieves selling the proceeds of their robberies to undercover police officers. Common law system foundations for excluding evidence obtained illegally or unfairly and the relevant case law keywords.

This basically means that police are civil servants working on the street level in direct contact with the general public enforcing the laws of the local, state and federal law. Turning now to the statutory provision, this was inserted at a fairly late stage in. Police are what is known as streetlevel bureaucrats. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes. Apart from general exhortations to report fully and fairly, officers are given little formal guidance on such. Pdf responsibility and discretion in law enforcement. However, this original authority is conditioned by certain statutes.

Police chief, police commissioner, sheriff, secretary of natural resources, state police barrack commander or their designee. While the office and duties of the prosecuting attorney are statutorily defined, the broad powers and authority wielded by the prosecutor were spawned via development of the common law. I could have handled the situation in multiple ways. This thesis discusses police exercise of discretion and its relationship to the u. Police trade or sell their days off and desirable work assignments. A police officers discretion not to arrest represents the triumph of common sense over the excesses and unwisdom of legislators. Davis, a police officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction davis 1969, p. Police discretion david gonzalez university of phoenix introduction to policing cja370 professor john w. Discretion such discretion is considered helpful to the police service itself in its efforts to enforce the law. Discretion among the lower ranks in policing organizations makes control by the organization imperative so that the operational decisions represent the organizations values.

Police must get warrants from a judge, but the police are responsible for collecting and securing all evidence. Better living through police discretion duke law research. Feltgen june 23, 2005 abstract in this paper i will discuss police discretion and the use of these discretionary powers in the law enforcement workplace. Police discretion in contemporary america semantic scholar.

Discretion the art of law enforcement rasmussen college. What is the difference between common law and civil law. Statutory law and common law do not cover every potential situation a law enforcement officer might encounter. Officers who encounter an irrational person creating a disturbance have. Policing the police when does discretion become dangerous. Police act section 262 the duties and functions of a municipal police department are, under the direction of the municipal police board, to a enforce, in the municipality, municipal bylaws, the criminal law and the laws of british columbia, b generally maintain law and order in the municipality, and c prevent crime.

Under common law, police officers have significant independent investigative powers, including investigation of a crime, wit h only indirect oversight from a judge. Supreme court cases for law enforcement are either misunderstood or entirely unknown by the average. This is an approach that is influenced and governed by police officers that are dedicated to keep social order and organization. In fact the courts rarely exercised the common law discretion to exclude. The misuse of police powers in officerinvolved domestic violence page 1 2015 2003 diane wetendorf, inc. Panzarella 2003 suggests that organizational control of police discretion is a facade because police officers are an uncontrollable entity and that an increase in. Worden and others published police discretion in law enforcement find, read and cite all the research you need on researchgate.

This is in marked contrast to the situation in the not so distant past when the law provided little, if any, guidance to the police as to how they should exercise their common law or statutory powers. In common law, canadian police have a duty to enforce the law, but the authority not to charge in any particular case even the most serious cases hornick et al. Designation of police department, rather than sheriff as. Motion to dismiss prosecutorial misconduct evidentiary. In law, common law also known as judicial precedent or judgemade law, or case law is the body of law derived from judicial decisions of courts and similar tribunals. Although discretion is an unavoidable and ubiquitous feature of police work, it is also the subject of significant controversy and debate. Judicial discretion in common law courts richard b.