Police officers’ discretion and its (in)adequacy as a safety valve against unnecessary arrest

The Supreme Court of Appeal has ended the recent uncertainty on whether there is a need for the fifth jurisdictional fact in the process of arrest. The result is that South African law is back at the well-known four jurisdictional facts that must be present before a lawful warrantless arrest may take place. This article assesses whether, after the demise of the fifth jurisdictional fact, police discretion can adequately protect the right to liberty. The discussion starts with a contextual background outlining the role of the jurisdictional facts and the emergence and demise of the fifth jurisdictional fact. This is followed by an outline of the legislative framework applicable to arrest, pointing out that the law bestows wide discretion on police officers in the exercise of their duties, including securing the court attendance of accused persons. Relying on relevant decided cases, it is submitted that the courts focus on the police discretion exercised at the point of arrest, not in the process preceding that stage (for example, the choice of method). The central submission is that, given that the only viable pre-court appearance protective mechanism against unnecessary arrests is the proper exercise of police discretion, focus on the exercise of discretion at the point of arrest is not the most prudent and/or effective approach in the quest to protect the right to liberty.

‘Every Move You Make … Every Word You Say’: Regulating Police Body Worn Cameras

The death of Minneapolis man, George Floyd, at the hands (or, knee) of a police officer in May 2020 appears to have set a nation, indeed the world, alight with outrage at ongoing, systemic racism and brutality by police officers. Body worn camera (‘BWC’) footage from officers attending this incident provides strong evidence of the circumstances of Mr Floyd’s death. In this article, we draw on criminological research and analyses of legislation in Australia and a number of international jurisdictions, to argue there is a need for improved regulation of BWCs. Despite incurring the substantial cost of deploying this technology, governments are relinquishing control of it to law enforcement agencies who, in turn, draft policies that maximise police discretion and protection while minimising the consequences of non-compliance. For governments to realise their objectives for BWCs, we argue there is a need for greater regulation to ensure BWCs are utilised effectively.

From discretion to standardization: Digitalization of the police organization

In this article, we aim to examine whether intelligence-led policing in police practice reinforces the control model of the police organization. We argue that digitalization of police working life resurrects several of Taylor’s management principles, such as greater division of labor, specialization, standardization and focus on measurable and efficient processes. Drawing on empirical research via two cross-sectional surveys, focus group and individual in-depth interviews with 40 Norwegian police officers, we analyze the extent to which this is conditioned by how work processes are organized and how knowledge practices are operationalized and standardized. We show perceptions of standardization that break up policing processes and lead to greater control over which tasks the front line performs and how these should be carried out. As a result, traditional police discretion becomes more standardized, constrained and de-contextualized. This is reinforced by the implementation of intelligence-led policing to manage knowledge within the police organization, which may eventually lead to a more top-down, bureaucratic and fragmented style of policing. Thus police professionalism becomes understood as being greater standardization and organizational control. An unintended consequence is a shift towards digitalized neo-Taylorism in policing, with implications for de-skilling of the police. The results demonstrate a managerialist view of the police organization, in which top-down steering and use of technology ultimately lead to a narrowing of police discretion and a more invisible high-policing style of police that may increase militarization of the police organization.

POLICE DISCRETION AND PROCEDURAL JUSTICE

Discretion is an important and inevitable characteristic of policing that raises several discussions among academics and practitioners in the field due to the significant impact that police decisions can have on citizens’ lives and on the credibility of police institutions. This controversial attribute of police power presents challenges to the exercise of policing in democratic societies. This essay argues that procedural justice upholds police discretionary powers. It also presents real-life examples of how the exercise of police discretion in policing diverse communities may be used to counter or endorse principles of equality and procedural justice.