To explain this we assume a discretion where the options for exercising it are
Options 1-n. Criteria for exercising the discretion consist of Criteria 1-n. In
order to decide the best way in which to exercise this discretion the official has
to weigh the criteria to determine the net benefit of each option, which are
labelled Net Benefit 1-n to correspond with Options 1-n. Obviously the best
option is the option which yields the highest net benefit. This can be illustrated
by a diagram:
Discretion
Facts
Evidence
Option 1: Net Benefit 1
Option 2: Net Benefit 2
Option n: Net Benefit n
Criterion 1
Fact 1
Evidence 1
Criterion 2
Fact 2
Evidence 2
Criterion n
Fact n
Evidence n
Figure 26.3 Model for Exercise of a Discretion
Steps
For convenience the process of exercising a discretion can be divided into
eight steps. This diagram will be used to explain the eight steps that need to be
taken in the process of exercising a discretion. As well as guiding the exercise
of a discretion these steps also provide the natural overall structure for making
and writing the ensuing judgment.
Step 1 Formulating Options
The court must formulate the options. In a simple case, the options are to do
something such as grant a pension or not grant the pension. In a less simple
case there might be further options as to the amount of the pension or as to
conditions to attach to the pension.
Step 2 Identifying Criteria
A
court must identify the legally proper criteria for exercising the discretion.
These criteria are labelled Criteria 1-n in the first column of the model.
Step 3 Grading Criteria
An official must grade criteria according to their importance. Criteria 1-n in the
first column of the model can be numbered by reference to their relative
importance, so that Criterion 1 is the most important, Criterion 2 is the second
most important and so on.
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