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Determining One's Guilt: Subjective And Objective Tests

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.[1] 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[2] 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."[3]

In the case of Satish Chand Singhal v. State of Rajasthan[4], 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.[5]

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.[6] 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.[7] The underlying fault element of the Criminal Code 1899 (Qld) is negligence, with its attendant objective test of the standard of the ordinary person.[8]

In R v. Taiters[9], 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[10]. 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.[11]

The mode the judgement of the Satish Chand Singhal case[12] 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.[13]

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[14] 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."[15]

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.

  1. The elements of a crime: actus reus and mens rea, available at
  2. 543 U.S. 146
  3. Ibid.
  4. 2007 CriLJ 4132
  5. Eric Colvin, Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility
  6. Ibid.
  7. Ibid.
  8. Andrew Hemming, 'Reasserting the Place of Objective Tests in Criminal Responsibility: Ending the Supremacy of Subjective Tests
  9. (1996) 87 A Crim R 507, 512
  10. Eric Colvin, Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility; Veen [No 2] v The Queen (1988) 164 CLR 465
  11. Ruth Kannai, Preserving proportionality in sentencing: Constitutional or Criminal Issue
  12. 2007 CriLJ 4132
  13. Guido Calabresi and Alvin K. Klevorick, 'Four Tests for Liability in Torts', 14 J. Legal Stud. 586 1985
  14. MANU/SC/0033/1952
  15. Ibid.
Written By: Dr Farrukh Khan is an Advocate and Managing Partner of Diwan Advocates

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