A follow-up review of Police use of Discretion Incorporating Penalty Notices

Publication: 18/02/21
Police use of Discretion Incorporating Penalty Notices - A follow-up review Cover Image
Inspectors welcome improvements in oversight of use of police discretion but identify more work to be done

A follow-up review of how the Police Service of Northern Ireland (PSNI) uses discretion and penalty notices to deal with low level offences has identified improvements in its governance and oversight arrangements.
The review published today (Thursday 18 February 2021) assessed progress in implementing recommendations for improvement made by Criminal Justice Inspection Northern Ireland in its (CJI) original inspection report in 2015.
“The use of discretion by police officers isn’t easy to do but it is vital they get it right. How and when police officers use discretion has been brought to the public’s attention possibly like never before during the COVID-19 pandemic,” said Jacqui Durkin, Chief Inspector of Criminal Justice in Northern Ireland.
“The use of discretion and different types of penalty notices to deal with minor offences without the need for court proceedings is an important part of the criminal justice system.  Almost half the cases in our courts are less serious offences.  However, exercising discretion requires police officers to act with integrity and use their professional judgment in a proportionate and fair way.
“It is essential the community has confidence that when police discretion is applied or enforcement action is taken that involves a penalty notice being issued, that it is the right police response, it is used in a consistent way and that appropriate oversight and monitoring arrangements are in place,” she said.
The 2015 report focused on Penalty Notices for Disorder and Discretionary Disposals. Community Resolution Notices replaced Discretionary Disposals in 2016 as a prompt, tailored solution that improved services to victims and encouraged perpetrators not to reoffend.
Inspectors found that significant progress has been made with 10 out of the 11 recommendations for improvement assessed as achieved or partially achieved.
“We found that better quality assurance and partnership with the Public Prosecution Service for Northern Ireland (PPS) was in place following the establishment of a joint protocol between the two organisations and the formation of a Quality Assurance Panel involving a Police Sergeant and PPS Prosecutor to randomly sample and review cases where discretion had been applied,” said Ms Durkin.
“This is welcome and together with monitoring and governance by senior police officers, helps ensure that when issues are identified they are dealt with and opportunities for organisational learning taken forward and shared across all police Districts,” she said.
However, the Chief Inspector said Inspectors identified the Quality Assurance Panel did not review cases where fixed penalty notices were issued or instances where police discretion could have been applied and a Penalty Notice for Disorder or Community Resolution Notice issued, instead of a file being sent to the PPS for prosecution. 
“We believe the PSNI needs to monitor and have effective arrangements in place to identify where discretion could have been applied but wasn’t. These are areas the PSNI and PPS should consider including within the work of the Quality Assurance Panel as decisions made by the PPS can clearly result in very different outcomes for offenders and once a PPS file is submitted, it can’t be returned for police reconsideration,” she said.
Ms Durkin said that while she welcomed steps that had been taken by the police to capture information relating to some Section 75 categories, better management information on all types of penalty notices was needed and it not only needed to be collected but also analysed and reported.
The Chief Inspector also urged the PSNI to prioritise better digital technology that would enable police officers to issue, record and administer the full range of police disposals and penalty notices available.
“Maintaining public confidence and support from local communities is at the heart of the PSNI’s ability to use police discretion and penalty notices to effectively deal with low level offences,” said Ms Durkin.
“This will become even more challenging for the PSNI and the PPS as new fixed penalty notice offences and penalty notice for disorder fines are introduced alongside the enforcement of current COVID-19 public health regulations.
“I expect to return to police discretion and the effective use of penalty notices in a future inspection programme,” concluded the Chief Inspector.