Editorial: Discretion by police in the public interest

Police commanders are responding to the over-stretching of their resources with new ideas on tackling crime. This year, it was suggested officers should have the power to dispense on-the-spot punishments for minor offences. That was ill-advised.

There is, however, far more to commend an Auckland-wide trial under which formal warnings are issued for minor crimes, rather than the resources of the police and the courts being further encumbered by prosecutions.

Policing must be highly discretionary, if only because of the huge number of laws on the books. This is a nod not only in that direction but in the public interest.

Critics will not see it that way. The thrust of the Auckland trial places it, practically and philosophically, at the opposite extreme of the zero tolerance and broken windows policies that achieved much popularity in the 1990s.

These reflected a belief that the inflexible enforcement of minor laws - such as prosecuting those who broke windows - would prevent major crimes being committed.

The concept that little problems led to big problems was easy to grasp. It gained further kudos when it was used in New York with apparent success. Subsequently, however, it has been largely discredited. A decline in the New York crime rate is now attributed more to other factors, including other wide-ranging changes in policing.

Zero tolerance is fatally flawed in that it sees human behaviour as black or white. There are no shades, such as the extenuating circumstances that may have led to a crime. There is no consideration of motive, or of the course most likely to prevent recidivism.

The police do not have the discretion to decide that arrest, a night in the cells and a stern warning may be enough to dissuade reoffending. They are required to initiate legal proceedings, no matter that a punishment of, say, a $100 fine bears no relationship to the time and cost imposed on themselves and an overloaded justice system.

The Auckland trial follows the success of a three-month pilot programme on the North Shore. In this, 10 per cent of all those arrested received a formal warning, rather than prosecution.

Additionally, there was a 64 per cent reduction in cases of diversion, which allow low-level and first-time offenders to escape conviction if they agree they committed an offence and then do some rehabilitative act. Most commonly, warnings were issued for drunk and disorderly conduct, shoplifting and cannabis possession for personal use.

The police's satisfaction with the policy can be gauged by the fact that, originally, it was restricted to offences that attract a maximum jail sentence of six months. In the Auckland-wide programme, this threshhold has been increased to two years.

That suggests the police are confident senior staff have used their discretion well when choosing whether to prosecute or warn, and will continue to do so. And that they are keen to move further away from any thought of an inflexible zero tolerance-style policy that denies them the chance to exercise understanding and compassion about an out-of-character indiscretion.

Giving police the power to dispense punishment for minor offending would be a step too far. It is the role of the courts to determine guilt or innocence. The police have, however, always had the discretion not to initiate prosecution.

This illuminates that power, and is a welcome initiative to free up their time and that of the justice system. This allows a stronger focus on more serious crimes. And that serves the public interest far more than inflexible approaches which, whatever their supposed folk wisdom, have failed in practice.