Commentary
| Date | 01 April 1968 |
| Published date | 01 April 1968 |
| DOI | 10.1177/0032258X6804100401 |
| Subject Matter | Commentary |
Discretion in Prosecution
R. v. Commissioner of Police of the Metropolis (ex parte Black-
burn), The Times, January 30, 1968, in which the Court of Appeal
considered the Commissioner's exercise of his discretion in the
enforcement of the Betting, Gaming and Lotteries Act, 1963, will
no doubt be enshrined in the legal text-books. Some lawyers,
among them Mr. Quintin Hogg, Q.c., see in the Master of the
Rolls's judgment a claim on the part of the judiciary to supervise
the activities of the police and of police authorities, hitherto re-
garded as "enjoying acertain measure of independence ".
Forty years ago this Journal published an article by Sir Leonard
Dunning, one of H.M. Inspectors of Constabulary, on the question
of discretion in prosecution (Vol I, pp. 39-47). Sir Leonard
listed the few instances where there is a statutory duty to prosecute
but concluded that for the most part
"the
actual administration
of the criminal law
...
is definitely entrusted to local authorities ".
He quoted the Roman maxim, salus populi suprema lex: the
people's well-being is the supreme law, and remarked
that"
suc-
cessful prosecution is not in itself the end to be sought, but that
it is one of the means of securing the real purpose of a police
service, the prevention
of
crime".
In 1936, we published an article by Mr. F. T. Tarry, also to
be one of H.M. Inspectors, in which he quoted Halsbury's classic
definition: "Discretion means
...
that something is to be done
within the rules of reason and justice, and not according to private
opinion, according to law and not humour.
It
is not to be vague
and fanciful,
but
legal and regular" (Vol. IX, p. 235). Discretion
in this sense is of the very essence of police work, as Mr. Thomas
Lockley also argued in 1959 in our pages:
"To
preserve our
British way of life, the police must be permitted discretion but
we on our part must use that discretion with absolute fairness
to all and not be influenced by a desire for popularity, by fear
of ridicule or by allowing our hearts to rule our minds " (Vol.
XXXI, p. 85).
The constable's discretion is very ancient. Sir Arthur Bryant,
in Protestant Island, describes his duties of keeping the peace and
enforcing the statutes on profaning the Sabbath, eavesdropping,
etc., and notes:
"In
such matters, however, the remoteness of
central authority allowed him wide discretion." Over the years
the constable's responsibility has been primarily to the law, not
to lawyers, and we may expect that any attempt by the courts
April 1968 143
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