United Arab Emirates: Careful Conscious - A Look At Bahrain's Criminal Law

Last Updated: 4 July 2017
Article by STA Law Firm
Most Read Contributor in United Arab Emirates, November 2017

It is, in fact, the ability to consciously use our brains that separate us, the human race, from other animals we term as 'wild.' This ability is perhaps celebrated, but also to be used carefully and with caution. This ability also paves the way for the law to ensure public order and efficient 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 standpoint, singular may include the plural or vice versa, but the 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 committing the same. When mentally unstable criminals act out in public, their punishment is often limited by their lack of capability to make right decisions. Similarly, speaking of accidentally committed crimes the penalty for such accidental acts is also 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 towards the commitment of a crime or crimes, an amalgamation of the mental and physical component should be taken into consideration. The physical element, the actus reus, is the act of having committed the crime, while the mental part, the mens rea, is the particular state of mind the accused must possess when committing the offense to incur liability. The requirements that must be satisfied to incur responsibility 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, 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 great repercussions. Hence, only killings which satisfy the mental component of criminal liability get termed as 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 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 Article 31 is in stark contrast to the Law of 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 the human intent of the offender and that the loss of life can only get 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 gets further highlighted in Article 46 of the Penal Code, which clarifies the punishment of accomplices. It states that each party to the crime will get punished according to their 'intention or manner of his knowledge.' This Article 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 issue is a philosophical area of debate that has no correct answer. But let's put forward that, as a complicated species our degree of consciousness is not limited to one, we are capable of doing wrong under varying levels 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 while their consciousness is altered. Article 34 of the Penal Code explicitly 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 while intoxicated, even if they are as extreme as murder.

You Did Mean It

The mental component of intention is a mandatory condition imposed by Article 14 of the Penal Code. It stipulates that it 'must necessarily be present in felonies' such as murder. With the confirmation of the existence of the necessary intention, an offender will be held liable for their crimes. An example is one of the recent murder cases. The main suspect in the Hoora murder case admitted to charges against him of killing the victim with a knife 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 before 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 the act is/was incomplete. The mere intention to commit 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 essential. 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.


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 capacity to make conscious decisions, there are instances when one's liability may not decrease by 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. Mental decisions can only control physical actions, and each type of mental decision is case-sensitive. As such it can be argued that differing mens rea is vital in determining the relevant offense and punishment, must be given subjectively. To read more articles on criminal laws presented by STA's team of criminal lawyers in Bahrain, top criminal lawyers in Dubai and our global offices, select criminal law category on the left.

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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