Judicial discretion is the inherent power of the judiciary to make legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an important aspect of judicial independence. Where appropriate, judicial discretion gives a judge to decide a legal case or matter within a range of possible decisions. However, where the exercise of discretion goes beyond constraints set down by legislation, precedent or custom (see ultra vires), the court may have abused its discretion.

Concerns with regard to recidivism and other law and order issues has led to the introduction of mandatory sentencing laws which significantly limit judicial discretion in sentencing, particularly in the United States.

Family law

For example, in matters involving parental responsibility, the court may grant residence or contact to one or both parents, or to other parties of significance to the children (eg. grandparents). In the absence of a significant error of law or in the assessment of evidence, an appellate court may not overturn the lower court's parenting orders. However, if on appeal it is established that an incapable parent was granted residence, the court's decision may be overturned. Nevertheless, there is a rebuttable presumption that a trial judge or jury as the trier of fact made a competent decision from the available testimony and other evidence.

References

• Gelsthorpe & Padfield (2003) Exercising Discretion: Decision-making in the criminal justice system and beyond
• Loraine Gelsthorpe and Nicola Padfield, eds. (2003) Exercising discretion: Decision-making in the criminal justice system and beyond

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