United Arab Emirates: Careful Conscious

Last Updated: 9 June 2017
Article by Reem Ali
Most Read Contributor in United Arab Emirates, October 2017

'Intention is one of the most powerful forces there is. What you mean when you do a thing will always determine the outcome. The law creates the world.'

-Brenna Yovanoff

It is, in fact, the ability to consciously use our brains that separates us, the human race, from other animals we term as 'wild.' This ability is to be celebrated, but also to be used carefully and with caution. This also paves way for law to ensure civic sense and effective governance. To every action there is an equal and opposite reaction. Likewise, for every decision made with (or without) intent, recklessness, malice, or negligence leads to an outcome and possibly makes the person(s) accountable for. From an interpretation stand point singular may include the plural or vise versa but right can certainly not include the wrong.  It is for this reason the consequence of any decision that adversely harms or affects others results in punishing the mens rea (guilty mind).

A bloody murder will always remain a bloody murder, but the murderer may not always be called a cold-blooded killer. For crimes such as murder, the law measures accountability of a crime by distinguishing what frame of mind the person who made the decision was in at the time of the crime. When mentally unstable criminals act out in public, their punishment is often limited on the basis of their lack of capability to make good decisions. Similarly, when crimes are accidentally committed the punishment of which is almost always relative to the intention of the accused. It is with consciousness we make our decisions, however, in every situation, the degree of one's consciousness differs.

For any person to incur liability in committing a crime, a mental and physical component must be met. The physical component, the actus reus, is the act of committing the crime, while the mental component, the mens rea, is the specific state of mind the accused must possess when committing the crime in order to incur liability. The requirements that must be satisfied to incur liability differ for every type of crime. In the case of murder, Bahrain's Penal Code of 1976 (the Penal Code) states that the offender must possess the necessary mental state, or intention, in order to be held liable for murder.

Did You Mean It?

Mens rea encompasses those crimes that occur intentionally but also those that occur out of recklessness and negligence. As per the Bahraini Law, the crime of murder is one with high repercussions. Hence, only killings which satisfy the mental component of criminal liability may be termed murder; committing murder through recklessness or by negligence is not satisfactory in implicating an offender of murder.

Some in Bahrain have argued that acts of negligence resulting in death should fall under the umbrella of murder and not be reduced to violations of manslaughter or lesser offenses. Bahraini social activists such as Salman Nasser have begun to hold this position after the recent death of a Bahraini during an illegal car racing incident in Al Areen. However, the Penal Code does not criminalize the behavior of those who caused the death as the deaths lacked the appropriate intention or mens rea. Article 31 stipulates that those who have 'unknowingly' committed a crime shall not be held liable for their actions. This is in stark contrast to the Law in the United States of America which earlier this year charged Alfredo Perez Davila of murder following a car crash he caused, which resulted in the death of another person.

Given these differences between legal systems, the question arises, should the law be changed? It is argued that any action with as severe a consequence as death should hardly look at human intent of the offender and that the loss of a life can only be balanced by the loss of another (even if that is through harsh imprisonment sentences).

The importance of the mental state of an offender during a crime is further highlighted in Article 46 of the Penal Code, which clarifies the punishment of accomplices. It states that each party to the crime will be punished according to their 'intention or manner of his knowledge.' This suggests that if one did not intend to murder but took part in the crime, their punishment will vary according to how much or little they knew of the crime beforehand and their intention to partake. The issue here is again relevant to the one discussed above: is it moral for the law to soften its approach towards those who commit murder incidentally? This is a philosophical area of debate that has no correct answer. But let it be put forward that, as a complicated species our degree of consciousness is not limited to one, we are capable of doing wrong under varying degrees of consciousness. To measure punishment through the present mens rea during the act is logical as our thoughts and intentions direct out actions rather the contrary. As such, should it not be fair to limit punishment accordingly?

Another controversial variation of the mens rea argument is murders committed while under the influence. The Bahraini Law does not provide an escape for those who murder whilst their consciousness is altered. Article 34 of the Penal Code clearly provides that 'if a crime is committed with knowledge and choice [of intoxication, the criminal] shall be punished as if he has committed the act without being intoxicated or drugged.' A Bahraini man has recently been detained and is under investigation for the murder of his girlfriend during an argument over drugs. As he was intoxicated, the man is likely to be convicted of murder rather any lesser offense. Unlike the previously discussed scenarios, the intention to commit the crime of murder remains intact when an offender is voluntarily in this altered state of consciousness. The importance of the voluntary nature of an offender's actions is what allows the law to be so stringent in such a matter. To make the decision to get intoxicated follows the acceptance of decisions made whilst intoxicated, even if they are as extreme as murder.

You Did Mean It

The mental component of intention is required by Article 14 of the Penal Code. It is stipulated that it 'must necessarily be present in felonies' such as murder. With confirmation of the existence of the necessary intention, an offender will be held liable for their crimes. An example can be found in a recent murder case. The main suspect in the Hoora murder case admitted to charges against him of killing the victim with a knife in order to evade debts. With his admission, he confessed to making a decision to kill the victim the day before the crime was committed. It can only be inferred from such a series of events that the intention to murder existed prior to the act. As such, the necessary mens rea is satisfied to convict the offender of up to life imprisonment or the death penalty as per the Bahraini Law.

The crime does not necessarily have to be 'successful' to attract full liability of murder. The case against Abdualla Mohammed Habib saw allegations against him for attempted murder. Article 36 of the Penal Code makes clear that 'attempting to commit an offense is an act by the offender with the intention of causing the commission of such offense, even though it has not been completed. The mere intention to commit an offense or acts in preparation thereof or perpetration thereof shall not be deemed as attempting.' Therefore, Habib's guilt in attempting a murder with intent will cause him to incur the liability of the crime of murder. The requirement of intention here is important. Although the offender fails to commit the crime, the importance of intention is revealed when his punishment is equivalent to that of a successful crime.

Again the philosophical question of equitability is raised. Is it fair to punish an offender for a crime they intended to commit but failed to do so successfully? The law, in fact, allows such punishments as it does not mandate particular sentences for those found guilty of attempted murder. It provides a minimum sentence of 3 years and allows escalation to life imprisonment or the death penalty on a case-by-case basis. Regardless, the Court always has discretion as to the punishment of an attempted murderer.

Conclusion

The ability to make conscious decisions is an ability of vital importance which nonetheless places the burden of precaution on each individual. Although the law punishes criminals according to the degree of their ability to make conscious decisions, there are instances when one's liability may not decrease on the basis of altered consciousness. In cases of incidental murder, due to negligence or unintentional complicity, Bahraini Law reduces the charge and punishment of the offender. However, in cases of murder while under the influence or attempted murder Bahraini Law allows prosecution under the label of murder, and will punish accordingly. Regardless, the mandatory intention to convict an offender of murder remains.

These issues are controversial due to the implications and consequences of the actions of said offender. It is regularly debated as to whether the degree of consciousness should be disregarded and the punishment for murder should be unified. However, this suggestion fails to take into account the complexity of human actions and the importance of consciousness. Physical actions can only be controlled by mental decisions, and each type of mental decision is case-sensitive. As such it can be argued that differing mens rea are vital in determining the relevant offense and punishment, must be given subjectively.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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