• Home Page
  • The Pros And Cons Of Judicial Discretion

The Pros And Cons Of Judicial Discretion

Superior Essays
Show More
Judicial discretion refers to the powers conferred to a judge in the legal system of a given country to determine the direction of a matter presented to them without the interference of preceding or strict regulations that are established by statutes (Bushway et al. 2012). Judicial discretion is assigned by the legal apparatus within a given jurisdiction, meaning that court decisions may be subject to contest through the utilization of higher powers. Judges are supposed to practice the discretion allowances up to the limit specified by the law, failure to which decisions may be subjected to comprehensive vetting. For instance, the practice of discretion may be void judgement decisions in the event of bias, capricious practices, and the exercising …show more content…
As already stated, judicial discretion encompasses the freedom that judges are assigned by the legal apparatus within a given jurisdiction. The allowances provided by the law to practice discretion mean that personal opinions are usually injected in the making of judgements in the legal system. As such, discretion leads to unpredictability and discrepancies in the issuing of sentences for similar criminal offences. Discretion is a double-edged sword that carries advantage and disadvantages. The advantage of judicial discretion is that it allows for the consideration of the unique circumstance of each case and apply the legal provisions according to these guidelines. However, judgments can be biased and too varied in cases that appear to share similar magnitude due to variations in judge perceptions. In this paper, I take the stand that the Irish judicial system allows for wide discretion that hurts the delivery of criminal justice in the …show more content…
The criminal justice system is structured in such a way that the legal apparatus provides freedom to the judges to practice discretion. The legal apparatus used is based on the provisions of the Criminal Justice Act [1993] and the various amendments that have been made to streamline the law. The Irish Constitution of 1937 has been an instrumental force in the creation of court systems regarding the sentencing procedures. The provisions of the Criminal Justice Acts enable judges to determine the sentence alongside the guidelines of the law. Factors like the level of cooperation with the court procedures, the impact of the offences on the victims, the criminal history of the concerned individuals, and facts of the alleged offence. These provisions are necessary for the sentencing procedures to ensure that judgments ae not biased and determined solely by the legal

Related Documents

  • Improved Essays

    C Parliamentary Sovereignty V Bikie Analysis
    • 1010 Words
    • 4 Pages

    C Parliamentary Sovereignty V Bikie Analysis

    C Parliamentary Sovereignty v Bikie Laws The doctrine of separation of powers works alongside that of parliamentary sovereignty, in that the parliament decisions reign of all others. In practice, the parliament can enforce and create laws that override court decisions, which the court has to enforce. The laws being enforced in the case of R v Brown, enacted by the Queensland Parliament include mandatory requirements for the courts, such as mandatory refusal of bail. These target those who are alleged bikie members, bikie members or members by association. This limits the unfettered independent decisions of the courts, as they now must follow the obligatory sentences set by the laws of Parliament.…

    • 1010 Words
    • 4 Pages
    Improved Essays
    Read More
  • Improved Essays

    Ambiguity Of Scots Law Essay
    • 1066 Words
    • 4 Pages

    Ambiguity Of Scots Law Essay

    Another important complication to this area of the law arises when considering civil circumstances that may result in criminal sanctions. This is something that will also be considered in detail throughout this essay, and would cause me to argue that the law in this area is not clear and straightforward. In criminal cases the crown must prove the accused committed offence beyond reasonable doubt. In some cases there is a persuasive burden on accused, this discharged by proof on the balance of probabilities. This is the first demonstration of the crossover between the two standards that aim to be distinct and clear.…

    • 1066 Words
    • 4 Pages
    Improved Essays
    Read More
  • Improved Essays

    Masciantonio V. R Summary
    • 1785 Words
    • 8 Pages

    Masciantonio V. R Summary

    In McHugh J’s dissenting judgment in Masciantonio v R he argues that the characteristics of an ordinary person of the same age, race, culture and background as the accused should be implemented when applying the law of provocation preventing the likelihood of discrimination and injustice. Further, he goes on in saying that in a multicultural society such as Australia, the notion of an ordinary person is pure fiction and that cases heard by juries of predominantly Anglo-Saxon-Celtic origin would almost certainly result in the accused being judged by the standard of self-control of a middle class Australian of Anglo-Saxon-Celtic heritage. We explore the law of provocation and the requirements (tests) to satisfy the partial defence, changes to the tests over time and the difficulties that arise from the lack of understanding from the Australian Anglo-Saxon-Celtic origin judiciary, the standard of an ordinary person in Australia and difficulties of applying and also omitting the subjective characteristics of the accused. Firstly, for a murder charge to be reduced to manslaughter provocation must be established, whereby the accused is found to be sufficiently provoked by his victim (deceased).…

    • 1785 Words
    • 8 Pages
    Improved Essays
    Read More
  • Improved Essays

    Bordenkircher V. Hayes Case Analysis
    • 1403 Words
    • 6 Pages

    Bordenkircher V. Hayes Case Analysis

    Prosecutorial discretion suggests that the government prosecuting attorneys have the opportunity to choose to bring criminal charges and any other charges. Prosecutors are one of the most powerful officials, which, “also provides a significant opportunity for leniency and mercy in a system that is frequently marked by broad and harsh criminal laws, and, increasingly in the last decades of the twentieth century, by legislative limitations on judges ' sentencing discretion.” The prosecutor has a great amount of authority, stated in the case Bordenkircher v. Hayes, “ as long as the prosecutor has probable cause to believe that the accused committed an offense defined by statue, the decision whether or not to prosecute, and what charge to file or bring before…

    • 1403 Words
    • 6 Pages
    Improved Essays
    Read More
  • Improved Essays

    Judicial Restraint In The Supreme Court
    • 1309 Words
    • 6 Pages

    Judicial Restraint In The Supreme Court

    When justices on the bench of the United States Supreme Court make their respective decisions on a case, they are faced with two outcomes. The first is that they can decide to overturn a decision from a lower court, deem a federal law unconstitutional, or nullify other federal or state statute. When the Supreme Court changes previous statute or overturns a previous court decision, it is judicial activism. But when the Supreme Court decides to uphold precedent, upholding laws passed by Congress or state legislatures, or strictly adhering to the original text of the Constitution, it is judicial restraint. Although the aforementioned terms do not have any overlap in their definitions, it can often be seen that both of these judicial practices can be implemented in a single Supreme Court ruling.…

    • 1309 Words
    • 6 Pages
    Improved Essays
    Read More
  • Improved Essays

    Judicial Disappointment Analysis
    • 787 Words
    • 4 Pages

    Judicial Disappointment Analysis

    The judicial branch encompasses the judges and justices of the state and federal courts. First, we will examine the nomination and appointment process and how it differs from Supreme Court Justices. Then, we’ll analyze how the selection judges and justices and length of terms differ between Supreme Court Justices and members of Congress. Lastly, we’ll take a look at ways that Judges and Justice may be removed from office. Overall, the constitution lays out the framework for a complicated justice system, which differs greatly from the other branches of government.…

    • 787 Words
    • 4 Pages
    Improved Essays
    Read More
  • Great Essays

    The Due Process Model
    • 1399 Words
    • 6 Pages

    The Due Process Model

    This was shown with how the court proceeded formally and strict to procedures that protect the individual ensuring legal guilt as well how the witness and prosecution were constantly questioned in their methods. In all hearings the defendants were trialled fairly and with the respect of the court with consideration to who they all were as individuals. They were trialled upon their offences as a specific instance rather than the crime as a whole, highlighting the distinction between the use of the due process model contrary to the crime control model. Thus it can be concluded that the court sessions I observed reflected the due process model of…

    • 1399 Words
    • 6 Pages
    Great Essays
    Read More
  • Improved Essays

    The Importance Of The Criminal Trial Process
    • 1138 Words
    • 5 Pages

    The Importance Of The Criminal Trial Process

    Balancing the tension between community interest and individual rights and freedoms are a significant component of the criminal trial process and is relatively successful in that retrospect. In order to be effective and efficient the criminal trial process should reflect the moral and ethical standards of society, ensure the community is sufficiently protected and respects the rights of the individual. However, despite efforts to achieve justice for all members of society, the criminal trial process does fail to provide adequate success in some areas of the law such as the jury system, Legal Aid and the provocation defence. All these areas to an extent highlight the lack of success the criminal trial process serves in balancing community interests…

    • 1138 Words
    • 5 Pages
    Improved Essays
    Read More
  • Superior Essays

    Discretion In Criminal Justice
    • 2296 Words
    • 9 Pages

    Discretion In Criminal Justice

    The application of discretion is evident throughout the criminal justice field. Discretion, in its simplest terms, is when one makes an informed choice between more than two options. Discretion is more formally defined as “the authority to make a decision between two or more choices” (Pollock, 2014, p. 2). The act of discretion, initiates with legislators; that creates and defines laws, and discretion extends to all areas of the criminal justice field to include prosecutors, judges, correctional officers, and to police officers. By empowering law enforcement officers with the authority of discretion, there is room for abuse, especially when the power is not respected.…

    • 2296 Words
    • 9 Pages
    Superior Essays
    Read More
  • Superior Essays

    Benefits Of Police Discretion
    • 1056 Words
    • 4 Pages

    Benefits Of Police Discretion

    Police discretion simply means the ability to decide alternative endings. Although it may seem simple, police officers must decide if a need for discretion is needed or not. In law enforcement there is a need for discretion, but it solely depends on time and place. Discretion in the police department can start as soon as an officer leaves the station. Although police officers use of discretion can have benefits to the community.…

    • 1056 Words
    • 4 Pages
    Superior Essays
    Read More
  • Improved Essays

    Duel Court System
    • 729 Words
    • 3 Pages

    Duel Court System

    Duel Justice Watkins, Robert GCU Duel Justice The United States of America utilizes a duel court system in its judicial system. The two courts systems are federal and state. Courts that exist at the state or local level are established by the individual state, and exist “within states there are also local courts that are established by cities, counties, and other municipalities, which we are including in the general discussion of state courts.” Courts that exist at the Federal level have been established under the United States Constitution and rule on disputes concerning the Constitution and laws that are passed by Congress.…

    • 729 Words
    • 3 Pages
    Improved Essays
    Read More
  • Superior Essays

    Discuss The Role Of Justice In Criminal Justice
    • 1355 Words
    • 6 Pages

    Discuss The Role Of Justice In Criminal Justice

    Introduction Criminal law has been shaped by various ideas about its purposes (Duff, 2002a in Crime and Justice). One purpose served by the criminal law is to ensure that those who act wrongly receive the pain which is their just desert (Johnston and Ward 2010, 8). This simply put means that the community expectations of the criminal justice system is to see a wrongdoer reprimanded for his or her crime. The Elizabethan era is a prime example of this, as punishment for crime was often a public spectacle and in the form of hanging or flogging. The criminal justice system was also thought to shape human conduct.…

    • 1355 Words
    • 6 Pages
    Superior Essays
    Read More
  • Improved Essays

    Analysis Of Dworkin On Judicial Discretion In Hard Cases
    • 910 Words
    • 4 Pages

    Analysis Of Dworkin On Judicial Discretion In Hard Cases

    Dworkin on Judicial Discretion in “Hard Cases” Lu Zhao Boyu (Bozy) | A0127866R In the standard courtroom, one could reasonably expect the judge to be the one responsible for the holding of a case. However, does and should the judge exercise his own discretion when deciding cases? Prominent legal theorist H. L. A. Hart claims that judges do exercise discretion, especially in “hard cases”, where there is no pre-existing or unambiguous rule. To this matter, Hart’s brilliant student Ronald Dworkin offers an alternative theory, which argues that judges do not have discretion and should follow principles instead of rules, even in “hard cases”.…

    • 910 Words
    • 4 Pages
    Improved Essays
    Read More
  • Improved Essays

    Crown Court Case Analysis
    • 756 Words
    • 4 Pages

    Crown Court Case Analysis

    In this essay I will be discussing and comparing my visit Isleworth Crown Court and Hendon Magistrate’s Court. I will be comparing them in terms of structure, case load, persons working there and stating the differences between the conduct that is displayed in each of the respective courts. I will also talk about the different types of crimes that are tried in each respective court and give case examples and their outcomes. I visited Isleworth criminal court and sat in on various cases that were at the different stages of a trial. I also visited Hendon Magistrates court and the physical structure of both courts is similar.…

    • 756 Words
    • 4 Pages
    Improved Essays
    Read More
  • Improved Essays

    The Strengths And Weaknesses Of The Judicial Branch
    • 834 Words
    • 4 Pages

    The Strengths And Weaknesses Of The Judicial Branch

    To maintain the strength of the Judicial Branch having a strong system to provide checks and balances of the other branches of government, there should be a certain level of independence for the Judicial Branch. The Judicial Branch often has the last say in matters regarding judicial review, and because of this, they should be able to operate independently from the other two branches and serve as the final say in these matters. According to Padovano, Sgarra, & Fiorino, (2003), the judiciary is generally better positioned to check such unlawful behavior then voters, since he has access to much better information than they do. Voters that often want a bigger say in these rulings are not always the best options for keeping a strong checks and balances for the highest level of decision making that occurs in the judicial review process. A certain level of independence to the Judicial Branch can allow the certainty of a strong separation of powers and checks and balance system that cannot be controlled by the very parts of government it is trying…

    • 834 Words
    • 4 Pages
    Improved Essays
    Read More

Related Topics

Ready To Get Started?
Discover
Company
Follow
©2024 Cram.com
Privacy Policy |  About Ads |  Site Map |  Advertise  | 
  • Cookie Settings