ATS1423 Chap.2 Policing and Discretion
Policing and Discretion
Policing and Discretion studies the agency that starts the system. The required reading by Bronitt and Stenning treats discretion as a legitimate and unavoidable part of policing, defines it through Davis as the freedom to choose action or inaction, and explains why full enforcement is a myth.
Cunneen and Porter then show the consequences: police are the main gatekeepers of the system, and their choices about cautions, arrests and summonses have pushed Indigenous people further in. The tutorial connects discretion with implicit bias and tunnel vision and examines the 2025 Northern Territory inquest findings on a fatal police shooting.
The week also introduces the system's shape as a funnel: in one study only about 400 of every 1,000 offences were reported and only one person was imprisoned, so most decisions that matter happen long before a court hearing.
What this chapter covers
- 01
Davis's definition of discretion, including inaction
- 02
Lower-level street decisions and higher-level priorities
- 03
Goldstein and the myth of full enforcement
- 04
La Fave's four reasons discretion is necessary
- 05
Police independence and judicial review
- 06
The attrition funnel from crime to imprisonment
- 07
Discretion and Indigenous over-representation
Worked example · free
Trace a caution decision through Davis's definition
- 1Separate interpretation from discretion: deciding that theft probably occurred is an interpretive judgment, while choosing a caution or an arrest is discretion.
- 1Apply Davis: both outcomes lie within the officer's lawful limits, so both are discretionary choices, including the choice not to arrest.
- 1Ask whether the bases are acceptable. Guidelines may allow age or prior record to matter but never race.
- 1Connect to Cunneen and Porter: Indigenous young people receive cautions less often and are more often arrested and held, the less favourable path.
- 1Conclude on accountability: each choice can be lawful while the pattern is unequal, which is why reviewers look at outcomes as well as individual decisions.
Key terms
- Full enforcement
- The assumption, which Goldstein showed to be a myth, that police enforce every law against every offence they encounter.
- Fettered discretion
- Discretion that is structured by policies and guidelines which distinguish acceptable bases for decisions, such as age, from unacceptable ones, such as race.
- Constabulary independence
- The principle, stated in Ex parte Blackburn, that police decisions on particular cases are answerable to the law and not to ministers.
- Attrition funnel
- The pattern in which most crimes drop out of the system before conviction; one study found one imprisonment for every 1,000 crimes committed.
- Interpretive judgment
- A decision about whether the facts amount to an offence, which Bronitt and Stenning distinguish from discretion about what to do once an offence seems likely.
Policing and Discretion FAQ
Why can't police simply enforce every law?
La Fave's reasons, as set out by Bronitt and Stenning, are that no legislature can draft laws perfectly, obsolete laws remain on the books, resources are limited, and strict enforcement of everything would be harsh and intolerable for the community.
Does choosing not to arrest count as discretion?
Yes. Davis defines discretion as the freedom to choose among courses of action or inaction, so a decision to caution, ignore or move someone on is as much an exercise of discretion as an arrest.
How does police discretion affect Indigenous people?
Cunneen and Porter report that Indigenous young people receive diversionary cautions less often, are more often arrested, bailed and held in custody, and are less often summoned to court, so discretion at the first stage pushes them deeper into the system.
What does the funnel of attrition show?
A study cited by Daly and Sarre found that out of every 1,000 offences roughly 400 were reported, 320 recorded, 64 cleared, 43 people convicted and one imprisoned, so most filtering happens before the courts.
Why did the coroner warn against calling the officer one bad apple?
Because treating racism as an individual failing hides its institutional character. The coroner described an organisation showing the marks of institutional racism, which points reform toward culture, training and oversight rather than one dismissal.
Can police be told by a minister how to handle a particular case?
No. In Ex parte Blackburn, Lord Denning held that no minister can direct the police on a particular case and that police are answerable to the law alone, although courts can still review police decisions and are simply reluctant to intervene.
Assessment move
Learn Davis's definition word for word and practise applying it to street scenarios, deciding first whether the officer is interpreting facts or exercising discretion. Memorise the four reasons discretion is necessary, because they make good counterarguments in an essay on police reform.
Pair every abstract point with the Indigenous evidence from Cunneen and Porter, and use the inquest discussion to practise arguing that a problem is institutional rather than individual.
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