POLICE DISCRETION

D. A. THOMAS THE discretionary wers exercised by most agencies of government, are concerned with the administration of whether or not $y criminal justice, are conferred on them for the most part by specific statutory provision. The scope of such discretions are defined reasonably clearly by the enactment which confers them; in many cases, procedures for review or appeal are incorporated in the legislative scheme. The discretions exercised by the slice are nowhere conferred by the law; their scope is not definecf and the possibilities for review are limited. In one sense, the source of all police discretion is the absence of any legal definition of the role of the police. The Police Act 1964 obliges local authorities to provide police forces, and the Home Secretary to make sure that they are efficient-a variety of procedures is established for the investigation of the behaviour of the police, and a range of powers is conferred on them. Nowhere, however, does the law indicate exactly what the police are to do. The nearest the law comes to such a statement is in section 19 of the Police Act-every member of a police force shall have the powers and privileges of a constable throughout England and Wales. If we try to investigate the duties of constables (as opposed to their powers) we find ourselves quickly back in the eighteenth century, with a set of legal rules irrelevant to todays problems. In the absence of a definition of their role imposed from outside, the police must define their own responsibilities, within the wide range of possibilities created by the criminal law. Which statutes are to be enforced, and with what degree of vigour? Once it is conceded that police resources are finite, the need for some measure of selectivity in enforcement, or at least an ordering of priorities, becomes obvious. Given that on a particular night a known number of officers are available within a particular division, how should they be deployed? Should they patrol residential districts in the hope of catching burglars? Or set up a speed trap to deter motorists? Should some keep covert observations in a public lavatory in the hope of making arrests for homosexual offences ? Decisions such as these, on whatever level they are taken, represent police discretion in its most
* The author is Lecturer in Criminology at the University of Cambridge Institute of Criminology, and a Fellow o Trinity Hall. f
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fundamental form. The long-term policy decisions taken by a Chief OfKcer, the immediate decisions on deployment taken by a Chief Inspector, or the decisions of a patrolling constable about the route he will take on his beat, all reflect a valuation of the importance of the different kinds of crime which may be prevented or discovered. Decisions such as these, more than any others taken by the police, determine the real scope of the criminal law. Discretion in a more concrete form can be seen once a particular incident comes to the notice of the police. A complainant reports that he has been assaulted, his bicycle has been stolen, his 15-year-old dau hter seduced by her boyfriend. Quite apart from the assessment of t e truth of the complainants story, two different decisions are now required, each of which involves the exercise of discretion in the sense of the evaluation of the behaviour of which complaint is made. Does the behaviour fall within the scope of the criminal law? This may seem a simple question of interpretation of the lawalthough a trivial case may give rise to serious legal difficulty (is there an assault if a jeweller pierces the ears of a 10 year old without the consent of the parent?) Often the question will require a more sophisticated form of interpretation; the width or ambiguity of the law will require not merely a verbal analysis but a judgment of what the law was really intended to cover. What exactly is reckless driving? Is a magazine cover depictin a semi-nude young woman indecent matter for the purposes o the Indecent Displays (Control) Act 1981? Is the fear of ra a reasonable excuse for a woman to carry a letter opener in E r handba ? All these questions are capable of being resolved, eventually, by t e decisions of ma trates, judges or juries; but if the police decide that no offence been committed on the facts reported to them, the courts will never have the opportunity to adjudicate. In addition to an interpretation of whether the conduct which is the subject of the complaint is really within the scope of the criminal law, the police will have to decide how much of their resources can be devoted to its investigstion. A major murder inquiry involving large numbers of detectives may well be good for burglars, whose activities will receive less attention from the C.I.D. as a result. The allocation of investigative resources between different reported offences will reflect the priorities of the responsible decision-maker, whose decision to spend no more time on a particular incident because inquiries are getting nowhere and there are more important matters to attend to means that the chances of the offender being brought to justice are ended, without the formal procedures of the courts being brought into play.

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More discretionary decisions are called for when inquiries have produced sufficient evidence to make it possible to think about a prosecution. A legally informed judgment may be necessary about the adequacy of the evidence, and the probability that the tribunal of fact-magistrates or jury-will be sufficiently satisfied by it to convict. This is only one aspect of the discretion to prosecute. The decision-maker must also decide whether the case is one which should be brought before a criminal court at all-should it sim ly be forgotten, or dealt with by other means (a juvenile cautionel a depressed shoplifter referred to medical attention)? If the matter is to go to court, which charge will be preferred-assault occasioning actual bodily harm (punishable with up to five years imprisonment, but allowing the defendant to elect to be tried by jury in the Crown Court) or assault on a constable in the execution of his duty (triable only in the magistrates court and punishable with a maximum of six months). If the charge is an offence which is triable either way (as are most run-of-the-mill criminal offences)should the police ask for the case to be committed to the Crown Court, or recommend summary trial? Their decision on this matter will not be conclusive, but in practice it will often determine the mode o trial and influence f the kind of sentence imposed. These different facets of police discretion will in practice often be inextricably intertwined. A sympathetic victim may combine with less than conclusive evidence to produce a decision not to take the case to court. The exact location of effective decision-making within the police hierarchy may not be easy to identify. Formally, the decision not to proceed may be that of the Chief Superintendent, but the information on which he reaches his decision will be in the reports of lower-ranking officers, whose own evaluations may have shaped their search for facts and their assessmenr of the evidence they have unearthed. The constable who cautions the speeding motorist or decides against stopping and searching the possible druguser is exercising police discretion as much as the desk sergeant who persuades the angry actor that the cufflinks he thinks have been stolen are in reality merely lost.

Legal Control
No one who has studied the working of systems of criminal justice would dispute the necessity, and indeed the inevitability, o disf cretion at every stage of the process-whether in prosecution, adjudication, sentencing or the administration of penalties. What is
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important is to set limits to discretion, to establish general criteria by which discretion is to be exercised, and to ensure that procedures exist to revent the abuse of discretionary aathority. The complexity of the p enomenon known as police discretion is reflected in the variety of the devices and procedures which exist to control its exercise. These may be characterised as either legal, administrative or political. Legal controls operate in several different ways. The most important form of legal control of police discretion is the criminal law and the law governing criminal procedure. The elasticity of the substantive law which defines offences is the prime source of disc cretion; the more precisely criminal offences are defined, the nearer Parliament approaches an accurate description of the conduct which it intends should actually be penalised, the less discretion will be left to the police in the enforcement of the law in question. No criminal offence can be defined so precisely as to avoid any overreach, but too often Parliament is content to cast the definition of a criminal offence in extremely broad terms and rely on the discretion of the police to identify those cases which will be brought within its scope. The clearest examples are laws dealing with obscenity and indecency-the Obscene Publications Act 1959 and the Theatres Act 1968, for example. Obscenity has a statutory definition-an article is obscene if its effect is to tend to deprave and corrupt persons who are likely to read or see it-but what this actually means in terms of decisions made by police officers considering whether to apply for search warrants is another matter. The legal definition of obscenity has not changed for over 20 years-we still have the same definition under which Penguin Books were prosecuted (unsuccessfully) for publishing Lady Chatterleys Lover-but what is acceptable in a magazine on open sale has changed beyond measure. What accounts for the change, essentially, is the fact that the police no longer institute criminal prosecutions in relation to matters which would have been brought before the courts without hesitation in the past. The reasons for these changes in police practice are themselves, of course, complex, and undoubtedly the principal one is the reluctance olf juries to convict in obscenity cases, but there is no1 doubt that a publisher intending to distribute material which may be thought to offend the law will need advice, not on the formal definitions of the statute, but on the likely response of the police in the area in which the material will be published. The autonomy of local forces means that what may ass without question in one part of the country will provoke a sw t response in

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another. Not long ago, an entrepreneur opened a massage parlour in a quiet residential area of a university city, probably assuming f that as such establishments seemed to flourish in certain parts o London they might do well in the rovinces also. He was raided by the police, prosecuted and eventual y jailed for non-payment of the substantial fine he received from the Crown Court. One Manchester man, intent on establishing a theatre club, went so far as to take his solicitors advice on whether the proposed performance would contravene the Theatres Act; the solicitor visited Soho and reported that far more ambitious shows seemed to pass without objection there. The impresario and some of his associates were prosecuted, convicted and sent to prison. The width of legal definitions forces on the police the task of redefining the boundaries of the law, and in some cases such functional definitions have become established almost as though they had legal validity. For decades the o eratin definition of obscenity in pictorial matter (as opposed to tl e!lega definition) for f the purpose of prosecution was whether pubic hair was visible, and as a result many generations of adolescents were taken by surprise as they entered their teenage years.

Control by the Courts The rocedures of the criminal courts provide the most im ortant set o controls on the discretion of the police to rosecute. A c fecision to institute proceedings is not the equivalent o sending the suspect straight to jail; it amounts in effect to handing him over to the courts, who must decide whether he is to be convicted, and if so how he is to be sentenced. The decision-makers who follow the police in the process of criminal justice-magistrates, juries, judges, may by their discretionary decisions compensate for the excessive zeal of the police in instituting proceedings. An ill-judged prosecution may lead to an f acquittal by a sympathetic jury, or the imposition o a nominal penalty (conditional discharge) by a sympathetic judge. Legal rules governing the standards of proof and the admissibility of evidence must be satisfied. There are many checks before oppressive decisions to rosecute turn into oppressive sentences. What is conspicuously lac/& is a check of the other kind; an adequate legal procedure to prevent under-enforcement, whether in the form of failure to investigate a complaint or a decision not to institute proceedings in a particular case. In theory, a chief constable who unreasonably fails to enforce a particular statute is answerable to the courts in the same way as would be a lmal authority which failed to discharge a statutory duty imposed on them, but in practice no court has yet issued a

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mandamus to a chief constable to enforce a particular statute. Whether the courts would seek to reverse a decision not to institute criminal proceedings in a particular case is open to question: the remedy provided by the law in this case is for the aggrieved party to prosecute privately. This remedy is eminently satisfactory if the aggrieved party is a person of wealth and substance, a large business, a well-supported pressure group, or a soundly financed trade union or professional association; but for the private individual of limited means it exists only prosecutions (although may be ordered to be and the truly private prosecutor must risk. It was no surprise that a Royal Commission on private prosecutions (except for common assault which, for anomalous legal reasons, is usually privately prosecuted at least in name) are in practice few and far between. Administrative Control Administrative procedures play a significant part in the control of police discretion. Some of the elasticity of legal definitions may be compensated by a statutory re uirement that the olice obtain the consent of the Director of Pub ic Prosecutions be ore commencing proceedings (in some cases the power to consent is reserved to the Attorney-General), and in some contexts the Director has reasonably well-known policies in granting or withholding consent, or in advising against prosecution in those cases where his consent is not legally necessary but his advice is usually sou ht (the nearest and dearest policy in cases of causing death by rec less driving, where the victim is the drivers spouse or child, is an example o the latter kind). f Constraints such as these operating nationally are supported in most police forces by policies adopted by the Chief Constable and prolmulf ated in force orders o some other form-a motorist driving without fghts should not be prosecuted unless his lights are not in working individual decisions to prosecute order would be an of an officer ok some seniority and efficiency of the superthe scrutiny of the Inspecof the force-idiosynbe prosecuted would probably be treated as one aspect of the efficiency of the force. One

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administrative procedure which probably has no real impact on police discretion in relation to deciding whether or not to institute proceedings is the complaints system. A complaint referring to a matter of eneral police policy-such as that there are not enough plice patrolkng the town centre after midnight, or that there should be more s ed traps on the suburban roads-is not treated as a complaint for t e purposes of the statutory requirements of the Police Act 1964 (which requires all complaints to be recorded) although it would not necessaril be ignored. A complaint relating to a specific incidentthe fact t iat no serious attempt was made to investigate a report of a possible crime, or that no proceedings were instituted against an identified suspect-might enter the complex complaints system, but would probably not make much progress unless it went so far as to allege conduct on the part of an officer amounting to an offence under the police disciplinary code (such as neglect of duty or abuse of authority). A simple expression of disappointment, or worse, with the failure of the olice to prosecute in a similar case might attract a guarded letter o explanation, but a decision made in what would be regarded as the normal exercise of police discretion would not lead to the internal disciplinary proceedings which are the normal consequences of a substantiated complaint.

Political Control Political control over police discretion is minimal. The Chief Constable has " direction and control '' of the force, and this is generally thought to include all matters relating to police operations, law enforcement policies and prosecutions. The police authority must maintain an ade uate and efficient police force. It has no direct conf trol over day-to- ay decisions. It may influence the exercise o police discretion in the long term by its choice of a candidate for Chief Constable (who must be ap roved by the Home Secretary), but once he is in office the ability o the police authority to influence operational or enforcement policies is limited. The authority may call for a r e p r t on specific matters relating to the policing of the area, and the Chief Constable is bound to comply unless specifically excused by the Home Secretary. If there is a real conflict between the Chief Constable and his police authority over policy, the main weapon in the hands o the police authority is their control over supply-the f authority may not instruct the Chief Constable not to adopt a particular policy, but it may deny him the vehicles or equipment which he needs to carry it out. Ultimately, the police authority may attempt

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to exercise its statutory power to require the Chief Constable to retire in the interest of efficiency, but the scope of this power (which is subject to an a eal to the Home Secretary) has never been tested and it is doubt u whether " efficiency " would be held by a court to be prejudiced by a carefully considered policy ado ted by the Chief Constable, unless it were wholly unreasonable. T e limitations on formal political controls do not mean that the police can afford to be insensitive to public opinion: as the events of last summer so vividly demonstrated, policing, like every other activity of government, depends on the consent of the governed, and a police force whose practices, whether at the level of deliberate policies adopted by the hierarchy or the routine habits of the man on the beat, are not acceptable to the community it polices will find at best that it lacks the positive support that any police force needs if it is to function effectively,and at worst that it is confronted by hostility and violence. What if anything can (or should) be done about police discretion? Is it a necessary evil, or a desirable improvement on a process which without it would prove rigid and unable to adapt itself to varying circumstances? What is certain is that police discretion, in its varying forms, is an inevitable in redient in any system of criminal justice, and any attempt to legis ate it out of existence will fail. What is capable of adjustment is the extent of discretion and the procedures for its control. In so far as the substantive criminal law creates an f excess o unnecessary discretion in the hands of the police, because offences are defined too widely or vaguely, or obsolete laws Ieft on the Statute Book are resurrected to meet particular contingencies which were never envisaged by their authors (the statutes of forcible entry designed to deal with fourteenth-century squabbles between feuding barons were used to deal with squatters and sitters-in), it is because as a society we have shirked the irksome and difficult business of criminal law reform, or given it too low a legislative priority. Attempts to codify the criminal law, and by so doing limit the discretion o all o those engaged in its administration, failed twice in f f the nineteenth century, and the hope that the twentieth century will see English criminal law codified on a rational and integrated basis, reflecting the needs and values of today, is rapidly fading. This is not to deny that many important areas of the criminal law have been reduced in recent legislation to a more precise form, with a consequent curtailment of the scope for discretionary decisionmaking-the shrinking of the law of conspiracy in the Criminal Law Act 1977 and the substitution of the precisely defined offence of inter-

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ference with vehicles for the vagueness of the suspected person " offences under the Vagrancy Act 1824 are exam les-but some recent criminal legislation has tended to expand ra er than contract the f scope of discretion, by broadening definitions to take in new kinds o behaviour and by the abolition of many of the distinctions between different gradations of culpability. The first requirement, if unnecessary police discretion is to be avoided, is a system of criminal law which reflects the value judgments of contemporary society with a reasonable degree of accuracy. If we are not prepared to legislate with precision and economy, but create endless new criminal offences (such as under the Theft Act 1978) when our courts are increasingly subject to delays and our enal institutions overcrowded, then the police in the exercise of t I? eir discretion will have to do it or us. There is scope for the reinforcement of procedures for controlling discretion. The proposal of the Royal Commission for an independent Crown Prosecutor, operating on a local basis and subject to the same measure of local authority control as the Chief Constable, is probably a sound one, but there is no obvious reason why his duties should be limited to police prosecutions-all the discretions exercised by the police in respect of ordinary crime are exercised by other enforcement bodies-the Customs and Excise, the Inland Revenue, the D.H.S.S.-in relation to their particular corners of the criminal law, and there is no obvious reason why their discretion should not be subject to the same constraint. If we are serious in our belief that rivate prosecution is an important safeguard against im roper fai ure to prosecute, then we should make it a realistic right y making at least the possibility of legal aid available in advance. Improvements in the complaints system may improve accountability for decisions, but any enlargement of the role of the police authority is to be avoided. T o give the police authority a greater say in operational policy or enforcement pulicy is as impractical as it is undesirable. A police force subject to direction from the party in power for the time being would be wholly alien to the English criminal justice system.
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