measured in terms of duration and possibly also the intensity or variety of the
experience involved.
This means that prior to determining and comparing the net benefit of each
option, the decision maker has to do two things. First, they have to identify the
legally relevant criteria that can possibly apply to the discretion in question.
Criteria are of three kinds –
express, implied and general. Second, it is
necessary to determine which of those legally relevant criteria apply in the
circumstances of the particular case.
Diagram
To explain how criteria are weighed we need to analyse a discretion more
closely. This can be done by reference to a diagram that sets out both the
options and the reasoning for choosing from among the options as a model:
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 4.14 Model for Exercise of a Discretion
Steps
This diagram will be used to explain the steps that need to be taken in the
process of exercising a discretion. These are seven such steps, which are as
follows:
Step 1
Formulating Options
Step 2
Identifying Criteria
Step 3
Grading Criteria
Step 4
Establishing Criteria
Step 5
Measuring Criteria
Step 6
Aggregating Criteria
Step 7
Evaluating Options
Step 8
Decision
Figure 4.15 Steps for Exercising a Discretion
These are the steps for an official to take when they resolves an issue of
discretion. And in accordance with the nostrum on which this chapter is
based, these steps also provide the natural overall structure for writing the
ensuing decision or judgment.
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