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Monday, September 30, 2013

Q How criminal liability is measured to determine appropriate punishment.

                                               Measurement Of Criminal Liability 
Q How criminal liability is measured to determine appropriate punishment . (1996)
Q What elements are taken into consideration in determining the appropriate punishment.(1994) (1993)






  1. Introduction:
The responsibility or liability is the ultimate purpose of the law because the wrong-doer must make up or suffer for he has already failed in doing what he ought to have done. It is the ultimatum of the law and has its source in the supreme will of the state. It arises form a wrong or the breach of a duty.
  1. Definition Of Liability:
(I) According To Salnond:
“Liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong.
(II) According To Markby:
“The word liability is used to describe the condition of a person who has a duty to perform. “

  1. Case Law
2005 YLR 742
It was held that supreme object with the court is always to administer even handed justice to parties in a criminal case without un-reasonably learning in favour of the party nor depriving the other party of its due right to offer defence. Court must keep the scale justice even to both sides and conduct of the proceeding must visibly to reflective of its clean and un-biased mind in every sense.

  1. Kinds Of Liability:
Following are the different kinds of liability.
(i) Civil liability
(ii) Criminal liability
(iii) Remedial Liability
(iv) Vicarious liability
(v) Strict liability

  1. Criminal Liability:
Criminal liability is the liability to be punished in a criminal proceeding. The redress for criminal liability in is the form to punishment which may be in the form of imprisonment, fine or death.
(I) Conditions Of Criminal Liability:
There must be two condition before fixing criminal liability
(i) Actus reus 
(ii) Mens rea
(i) Actus Reus:
The first condition is the actus or prescribed act Salmond calls it the physical or material condition of liability. If there is no act there can-be no punishment.
Justice Bryan Stated:
“The thought of a man cannot be tried, for the devil itself knoweth not the thought of a man.”
Example:
A man take an umbrella form a stand at his club with intent to steal it ,but finds it is own, he has committed no offence.
(ii) Mens Rea:The second condition of criminal liability is mensrea or guilty mind. An act is punishable only if it is done intentionally or negligently Intention and negligence are the alternative forms in which mens rea can exhibit itself. If a wrongful act is done intentionally, penal action will serve as a deterrent for the future. If it is doe negligence or carelessly, punishment will make the offender more vigilant in future. Where the law presumes that there can be no will at all, penal liability can be imposed, e. g. children under the age of seven and insane person are regarderd by law as incapable of having mens rea.
(II) Measurement Of Criminal Liability:According to Salomnd, following elements should be take into consideration in determining the measure of criminal liability.
(i) Motive 
(ii) Magnitude of the offence
(iii) Character of the offender
(i) Motive:
As regards motive of offence, the greater the temptation to commit the crime, the greater should be the punishment. The object of punishment is to suppress sthose motive which lade to crimes. The stronger these motives are , the severe must be the punishment in the case. If the profit to be gained form the act is great, the punishment should also be severe proportionately.
(ii) Magnitude of the Offence:The second rule for the measurement of criminal liability is the magnitude of the offence the greater the magnitude of the offence, the greater should be its punishment. The greater the mischief of any offence, the greater is the punishment which it is profitable to inflict with the hope of preventing it. If the punishment dose not vary with the magnitude of the offence, there will be temptation to commit offence of very serious nature as punishment is the same in doth cases. If punishment for burglary and murder were to be the same, the burglar would not stop at a lesser crime.
(iii) Character of the Offender:The character of the offender should also be taken into consideration which determining the measure of criminal liability. The worse the character or disposition of the offender, the more serious should be the punishment. The law imposes upon habitual offender penalties which bear no relation to them magnitude of the offence. The most degraded criminals are said to exhibit insensibility even to physical pain, many murderers of worst type show Indifference to death itself. So it is desirable to punish more severely the more corrupt.

  1. Conclusion:
To conclude, I can say, that In considering the measure of criminal liability, the deterrent purpose of the criminal law should be given exclusive attention. The perfect law is that in which the difference between the good and the evil is at a maximum in favour of the good and the rules as to the measures of criminal liability are the rules for the attainment of this maximum.
 
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