Report No. 35

Topic Number 32(c)

Conclusion regarding codification of considerations

629. Conclusion regarding codification of considerations.-

Having considered the matter in all its aspects, we have come to the conclusion that it is not possible to codify the various considerations which weigh or should weigh with the court in the exercise of the discretion. There are circumstances which should never be taken into account, but they cannot be exhaustively enumerated. There may be circumstances which, when taken into account along with other circumstances, may suffice; but they cannot be exhaustively enumerated. Lastly, there may be circumstances which are by themselves sufficient, but they cannot also be exhaustively enumerated. Most of the replies received to the question on the subject1 also take the same view.

1. See summary of replies to question 5.

630. Further, the exercise of the discretion may depend on local conditions, future developments, evolution of the moral sense of the community, state of crime at a particular time or place and many other unforeseeable features. In short, codification of these considerations may, if attempted, be too wide and too narrow at the same time.

631. We do not, therefore, recommend any change in the law on this point. A "codification", which does not purport to be exhaustive, would not be of much value, and a codification which purports to be exhaustive may be rigid and give rise to difficulties.