Police Discretion in the Context of Minor Offences: Problems and Complexities

Minor offences, for example, street and traffic offences, constitute the vast majority of legal offences that police encounter. In deciding how to deal with these sorts of offences, the use of discretion is pivotal, given that full law enforcement is operationally impractical and counterproductive in terms of welfare objectives and police legitimacy. Yet the ubiquitousness of discretion and the minor nature of these offences often serve to hide the complex and at times problematic nature of discretionary decisions. This article presents a conceptual critique of police discretion in the context of addressing occurrences of minor offences to clarify the challenges faced by street-level police when using discretion in this context. By elaborating a continuum of responses available to police in the Australian jurisdiction of New South Wales, this article reveals the complexity of these decisions within the organisational, ethical and contextual factors that influence them. Drawing on contemporary Australian and international examples and informed by the theory of street-level bureaucracy, the discussion highlights problematic aspects for police in applying discretion fairly, whilst considering the underlying factors and potential responses to these issues. This article contributes a clearer conceptual understanding of how police negotiate the challenges of using discretion when dealing with minor offences and the implications for improved legitimacy, equity and reform.