Measurement of criminal liability

• How criminal liability is measured?

• What elements are taken into consideration in determining the appropriate punishment.

Definition of liability:

(i) According to SALMOND:

"Liability is the bond of necessity that exists between the wrong-doer and the remedy of the wrong."

(ii) According the MARKBY:

"The word liability is used to describe the condition of a person who has a duty to perform."

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.

 CRIMINAL LIABILITY

            Criminal Liability is the liability to be punished in a criminal proceeding. The redress for  criminal liability is in the form of punishment which may be in the shape of imprisonment, death  or fine.

CONDITIONS OF CRIMINAL LIABILITY:

i)   Actus Reus

ii)  Mens rea

i) Actus Reus:

The first condition is the actus Reus 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 takes an umbrella from a stand at his club with intent to steal it but finds it is his own. He has committed no offence.

ii) Mens Rea:

The second condition of criminal liability is Mens rea 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 done negligently or carelessly, punishment will make the offender more vigilant in future. Where the law presumes that there can be no will at all, no penal liability can be imposed, e.g. Children under the age of seven and insane persons are regarded by law as incapable of having Mens rea.

 

ii)MEASUREMENT OF CRIMINAL LIABILOITY:

According to Salmond, following elements should be taken 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 those motives which lead to crimes. The stronger these motives are the severe must be the punishment in the case. If the profit to be gained from the act is great, the punishment should also be severe proportionately.

(ii) 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 does not vary with the magnitude of the offence, there will be temptation to commit offences of very serious nature as punishment is the same in both 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 while 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 the 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.

CONCLUSION:

To conclude, it can be said, 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.