criminal law

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August 05, 2019

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The pith of criminal law depends on two elements: Actus Reus and Mens Rea, derived from the legal maxim "actus non facit reum nisi mens sit rea" which means no act is punishable without a guilty mind. The examination of a mental component essential for wrongdoing will be limited with reference to the utilization of this term itself, in so far as it connotes the mental component important to convict for any wrongdoing, and just in regards to violations not based on negligent behaviour.

A bare review of the laws manifests that it is easy to determine the criminal intent of a person as he is always aware of acts and the consequences attached to them, yet it is one of the difficult tasks before the criminal court, depending upon the varying circumstances of the case. The major difference between criminal intent and negligence, as understood by the best criminal lawyers in Dubai, remains in the fact that whether or not the accused was in his state of mind to understand the consequences of the act he is committing.

The Intention of the Law

Federal Decree-Law No. 31/2021 on the Issuance of the Crimes and Penalties Law (the Code) provides for the basis of criminal intention. According to the Code under Article 39 the essence of a criminal act lies in the intent or mistake. Accordingly, the intent is based on three further elements which are knowledge, foresight and desire. Wherein, the knowledge in such circumstances known as actus reus or the act itself, foresight means the awareness of the consequences of such actions under the law and desire leads to the outcome of such actions.

Whereas, any action will be considered a mistake if it was committed with sheer recklessness, negligence, non-observance of the law, and carelessness. The Code has vested discretionary powers in criminal judges and prosecutors to determine the criminal intent by conducting comprehensive and intense interrogations from which they may conclude the guilt of the accused. Contrary to the foregoing, a criminal judge is not bound by the evidence produced by the public prosecutor, he may take an altogether different path and dismiss the case.

Criminal Intent and Judicial Interpretation of UAE Courts

Criminal judges, contingent on the courts, hold wide discretionary powers while passing a decision on a particular criminal case. Fundamentally, they frame their own beliefs while determining the element of criminal intent and assess the evidence presented by the public prosecutor and the defence submitted by the accused. The Court's utmost focus is to achieve an obvious result on the basis of the evidence presented to either convict the accused of the criminal act or acquit him due to insufficient evidence to prove his guilt.

In this article, we will exhibit how the courts in the UAE in diverse dimensions have approached and investigated the moral component of intent through various decisions of the Supreme Court.

The Supreme Court has through Cassation Court Case Number 478 of 2016 provided factors to establish or set aside the criminal intent which includes the merits of the case, evidence produced before the court, circumstances and the precedents. The foregoing case determined the criminal intent while escaping police custody. The Supreme Court further held that in the crime of desertion, the accused fulfils the moral element of criminal intent when he tries to escape from police custody. The happening of an event or the distance he travelled is irrelevant as long as the intention to commit a crime is established.

The knowledge of possessing narcotics drugs establishes the very criminal intent which was deduced from Court of Cassation Case Number 274 of 2016, wherein the court held that the criminal intent would exist if the accused was aware of the substances in possession. It is the right of the court to draw a nexus between the occurrence of an action along with the criminal intent on the basis of evidence and investigation by the prosecutor.

Another landmark judgement assisting us to understand the factors affecting criminal intent and varied opinions of criminal court judges is Cassation Court Case Number 730 of 2005. In the said case, the crime of misappropriation of funds or fraud by a public servant most definitely involves a criminal intent along with an intention to squander funds of the government as claimed by the public prosecutor. However, the defendant pleaded not guilty and argued on the basis of a lack of moral intent, and no damage was caused to the funds. The Court of First Instance opined that the combined acts of all the defendants portray a moral unity which brought them together to commit such acts. Along with moral unity, both the accused were informed about the consequences and the outcome of the criminal act. The court of Appeal supported the same opinion. However, the Supreme Court set aside the order passed by First Instance and the appeal and ordered a re-trial before a different bench of the Appeal court. The Court of Appeal had a disparate opinion and held that the accused were not guilty of the offence as the elements of criminal intent were not satisfied. The matter was again referred to the Supreme Court where they confirmed the criminal intent of the accused. The court held that the implementation of specific contracts to avoid the lawful procedure built the very basis of criminal intent.

Conclusion

The aforementioned precedents simplified by Criminal Lawyers in Dubai assisted the courts and the public prosecutor in analyzing the merits, evidence and circumstances of the case in such a manner which highlights the mens rea along with actus reus. However, the evaluation or analysis may still vary depending upon the discretion and understanding of the criminal court in such circumstances.

UPDATES:

  1. The United Arab Emirates issued a new penal code, called the Federal Decree-Law 31 of 2021 On the Issuance of Crimes and Penalties Law (New Penal Code), which came into effect on 2 January 2022. It repealed the erstwhile Federal law 3 of 1987.

  2. The law which governs and regulates medical liability in the UAE is the Federal Decree Law No 4 of 2016, as amended from time to time (Medical Liability Law). The Medical Liability Law replaced Federal Law No. 10/2008 on medical responsibility. The Government of the UAE issued implementing regulations to the Medical Liability Law in 2019, called the Cabinet Decision No 40 of 2019 On the Implementing Regulation of Federal Decree-Law No. 4/2016 on Medical Liability (Medical Liability Regulations). These regulations set out the rules to be followed by medical professionals. The Government of UAE also issued Cabinet Decision No. 14 of 2020 On the Supreme Committee for Medical Liability, amongst other rules, regulations, and decisions that it issues from time to time.


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