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Discretion Rule of Law Brien suggests that the first sense of discretion is best thought of as a discretionary power capacity ability the second is best understood as a discretionary authority a permission or authorisation to act in a certain way 1999 R6 Police in todays society have many discretionary powers and it is quite often asked if those discretionary powers are compatible with the rule of law According to Walker he states in relation to police discretion that discretion was discovered only in 1956 and that once discovered there were cries for its abolition Kleinig 1997 81 These cries relate to discretions computability with the law On one hand the police need discretion in order to effectively conduct their duties for many reasons These include the law needs to be interpreted and applied it in its context the law does not exhaustively prescribe enforcing the law is only one aspect of policing and police may need an on the spot solution to a problem Miller Blackler Alexandra 1997 64 On the other hand we have the law that says everyone should be treated equally and that the law should be applied upon everyone in the same way to ensure equity and fairness This is where the law and discretion can conflict In this essay I will attempt to answer the question Discretionary use of police power is compatible with the Rule of Law and illustrate this answer in a practical sense with two case studies Klening states that a public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action and inaction 1996 82 This is police discretion in a nutshell Police often work on their own or with one other person and have to make daily decisions which require their discretion This is commonly known as De facto discretionary power as opposed to legal discretion
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