Before declaring a
person guilty, one has to test his ordinary prudence. This can be checked
either subjectively or objectively. Objective tests consider what the
reasonable person would have foreseen. Objective tests are
usually used in cases dealing with minor offences while subjective tests are
used for grievous and serious offences where the fact situation can bring about
a change in the judgement. The Supreme Court declared in Davenpeck v. Alford that “whether
probable cause exists depends upon the reasonable conclusion to be drawn from
the facts known to the arresting officer at the time of the arrest.”
In the case of Satish
Chand Singhal v. State of Rajasthan, the ordinary prudence of
the petitioner is tested objectively. In objective test, the prudence of a
person is tested by comparing it with that of any other hypothetical reasonable
person with the equal development of mind and senses. Subjectivity test is
where the ordinary prudence of a person is tested according to the specific
facts and circumstances of the case in question. To describe a test of criminal
responsibility as subjective means that liability is to be imposed only on a
person who has freely chosen to engage in the relevant conduct, having
appreciated the consequences or risks of that choice, and therefore having made
a personal decision which can be condemned and treated as justification for the
imposition of punishment.
The objective test
has to be considered incomplete without ‘The Fault Principle’ and ‘The
Proportionality Principle’.
The Fault
Principle: This principle states that there should be no penal
liability without fault. It follows from this principle that, whatever
the seriousness of an offence, we should reject liability for failure to attain
a standard that was beyond the capacities of the accused. The underlying fault
element of the Criminal Code 1899 (Qld) is negligence, with its
attendant objective test of the standard of the ordinary person.
In R v. Taiters, it was held that:
‘The Crown is obliged to establish that the
accused intended that the event in question should occur or foresaw it as a
possible outcome, or that an ordinary person in the position of the accused
would reasonably have foreseen the event as a possible outcome.’
The
Proportionality Principle: This is the principle of proportionality between culpability
and punishment or penal liability. Proportionality is both a sentencing principle
and a principle of responsibility. When
we refer to principle of responsibility, it is essential to establish a
proportion between the culpability and the liability.
One
should be adequately punished in proportion to the extent up to which one is
culpable. This is one of the primary reasons why subjective tests are taken
into consideration for serious offences and objective tests are chosen for
minor offences. The proportionality between the
seriousness of the offense and the severity of the punishment currently
comprises one of the basic principles of sentencing.
The mode the
judgement of the Satish Chand Singhal
case
has taken, it portrays objectivity test, and such an application has been
justified because the petitioner was prudent enough to realize the threat
contained in KV-11 wires and still, he went forth to take up that threat. The
subjectivity test does not seem applicable as the facts and circumstances are
not specific so as to be seen from a different point of view.
When we
specifically talk about tests for determining one’s guilt or liability, we
cannot choose to ignore the classic Learned Hand Test for determining
Negligence liability. According to the Learned Hand Test, the loss lies on the
injured victim unless the injurer knew or should have known, at the time he or
she acted, that accident avoidance by him or her was cheaper than the cost of
the accident.
However, the conflict which arose in this case was the ascertainment of costs.
While fixing the costs in order to determine the liability, it came out to be
confusing as to whether only economic costs were concerned or whether the
social and emotional costs were also to be taken into account. Even if such a
confusion stays intact, the wider interpretation of the test is largely
understood by all. In this case, the burden of proof clearly lies upon the
victim because this test largely applies in cases of negligence and such are
situations where the offender or injurer doesn’t realise the harm caused by his
actions. If we further go on to talk about the effectiveness of objective
tests, we will require to take a glance of the State of West Bengal v. Anwar
Ali Sarkar
as in this very famous case, the Apex Court had stated as follows:
“We
are then compelled to import into the question the clement of motive and delve
into the minds of those who make the differentiation or pass the discriminatory
law and thus at once substitute a subjective test for an objective analysis.”
The applicability
of Subjective or Objective tests is purely a matter of context and
circumstance. However, after analysing the tests of subjectivity and objectivity
and their application, I conclude that an accused person’s state of mind as
compared to a normal person should be considered enough to look into the factor
of culpability. The judgement cited hereinabove talks about ‘mischief’ and
mischief tends to have a factor of intention in it. The case in question does
not involve intention as per the facts, but the petitioner had knowledge
regarding the consequences of his act. This is sufficient to be equated with
intention as having knowledge about the act proves the prudence of a person
with a mind with similar functions as that of a reasonable man. This is why
objectivity test is the apt test to be applied in this case.
Eric Colvin, Ordinary and Reasonable People: The Design
of Objective Tests of Criminal Responsibility
Andrew Hemming, ‘Reasserting the
Place of Objective Tests in Criminal Responsibility: Ending the Supremacy of
Subjective Tests