United Arab Emirates: Criminal Accountability – Intention VS. Negligence In Criminal Law

Last Updated: 9 October 2018
Article by STA Law Firm
Most Read Contributor in United Arab Emirates, August 2019

"Mens Rea" or criminal intent refers to an individual's state of mind at the time he committed a crime. People who have criminal intent are fully aware of the act or omission they are about to commit and they are aware of the consequences their actions may have. Should a person think up a plan of action to kill his neighbor, and then fatally stabs his neighbor, that person is operating with criminal intent because he knows and understands that murder is wrong, yet he plans the act and ultimately commits the murder regardless.

In crimes of intention, the accused in blameworthy because he knew or foresaw that his act or omission was forbidden and that it was unlawful, but he nevertheless proceeded to engage in that conduct. On the other hand, in crimes of negligence, the accused is reprehensible because he did not foresee or know something or did not do something, although according to the standards of the law and the reasonable person he should have known or foreseen something or should have performed an act.

Therefore, the characteristic of intention is positive – namely that the accused will or knew or foresaw something. While the characteristic of negligence is negative, the accused did not will or know or foresee something even though it is reasonable to believe that the accused should have.

Types of criminal accountability:

Where a person has intent, there is no challenging the fact that someone deliberately set out to cause harm to someone else or to engage in some illegal activity. The foundation of Criminal intent is in a deliberate act towards another person, with the intent to cause harm to that person or to purposefully take someone's property, with the intention to deny them of it or to convert it to one's use.

In the case of 478/2016 in the UAE Federal Supreme Court, the court had to determine whether an individual should be considered to have escaped from custody. The critical factor in the courts' determination was the accused's intent to escape and not their distance from the place of incarceration. The court stated that the foundation of the judgments should be on clear grounds based on precedent, the merits of the case, the circumstances and the evidence.

The moral element for the crime of desertion, which is the criminal intent, is deemed as being fulfilled in the crime as the offender had the intention to escape from the officer assigned to guard him. This fulfillment does not require them to be at a distance from the place of arrest, detention, or imprisonment, as long as the offender's behavior has proved they tried to escape.

A different type of men's rea is recklessness, and here the perpetrator is aware of the consequences that could result from the commission or omission of an act but does not care. An example of this could be where a woman is upset that her husband is cheating on her, she decides to plant a bomb in his car. The woman is fully aware that her husband may be driving his mistress around in the car, and that the bomb may kill both the husband and the mistress when it goes off. The woman is aware that this is the most likely situation but does not care that the mistress may die too.

The bomb ultimately does explode and kills the husband and the mistress. The woman will be charged with the intent of killing the husband, and she will more than likely be charged with the knowledge that her actions would also kill the mistress.

Another form of reckless conduct is a defendant's simultaneous understanding and disregards of a substantial risk of harm. A defendant who has had previous DUI convictions and understanding that driving drunk can harm or kill people, but regardless, getting behind the wheel while intoxicated and causing a fatal accident is reckless conduct.

Negligence is the mildest form of criminality, it applied when someone is unsuccessful in living up to his duties, and someone else was injured as a result. For example, if a child gets hurt on a babysitter's watch, then the babysitter can be charged with negligence. Another few examples of criminal negligence are as follows:

  1. Leaving children and animals in an unattended vehicle in hot weather;
  2. Leaving a loaded firearm close to young children;
  3. Have illegal or toxic substances where young children will be able to access them;
  4. Serving alcohol to a heavily intoxicated person without regard being had to the threat that they may pose to themselves or others;
  5. Prescribing medications that, when taken together are known to be toxic.

In a United States case, People v. Valdez, 27 Cal. 4th 778 (2002) a mother was convicted of felony child endangerment, a crime in California that can be committed through criminal negligence.

In this case, a woman has an eight-month-old baby named Sarah. Mark, the woman's partner moves in with the woman's family. One day Mark offers to look after Sarah while the woman goes to work. When she returns from work, the baby is screaming and is severely burned. Mark states that he tried to bath her, but the water was too hot.

A few months further into their cohabitation, when Mark tried to pull the baby from the woman's arms, the child's' arm is broken. Following this, Sarah receives a black eye while in Mark's care, and a few additional instances took place. The woman confides in a third party that she is afraid of Mark and that she is considering leaving him, and the third party advises her not to leave the baby in his care.

The baby eventually dies from severe beating and injuries suffered while in Mark's care. Medical examinations show that the child has pre-existing injuries from other incidents of abuse. The Court charged Mark with the death of the child. The court additionally charged the woman with felony child endangerment.

The court held that although the woman never directly injured the baby, it can be reasonably determined that the woman satisfies the criminal negligence standard. A reasonable person in the woman's situation would have acted in a manner contrary to that in which she acted.

The court described that criminal negligence occurs where a reasonable person in the accused's position would have had the knowledge of the relevant risk and that a jury could have considered the risk to the child to be noticeable. 

Malice aforethought/premeditation is another type of mens rea, it is a specialized form of criminal intent, and it applies only to murder. The definition of malice aforethought is that it is someone's premeditated "intention to kill." A crime committed with malice aforethought/premeditation is considered the most severe crime that anyone can commit.

Specific intent is, therefore, the most severe criminal intent that can apply to any crime other than murder, specific intent generally means that the accused acted with a significant level of understanding of the consequences that could be caused by his actions. The grouping of crimes committed with specific intent can usually be into one of the following categories:

  1. The defendant had the intention to create a negative result;
  2. The defendant intends to do something even more severe than conducting the criminal act;
  3. The defendant acts in an illegal manner knowingly.

The Status Quo of United Arab Emirates

The Federal Law Number 3 of 1987 UAE Penal Code (Penal Code) provides for the regulation of the moral element of the criminal law. Article 38 of the Regulation states that the moral element of a crime consists of intent or mistake. The intent is present when the direction of the will of the perpetrator is towards the perpetration of the act or forbearance thereof. Whenever this perpetration or forbearance is considered by law to be a crime, with the intent to produce a direct result or any other result, the penalization of such action will be by law and which the perpetrator expected.

There is a mistake whenever there is an achievement of the criminal result because of a mistake of the doer. Whether the mistake was due to negligence, carelessness, non-precaution, recklessness, imprudence or non-observance of the law, regulations or orders.

In the case of UAE 730/2005, the Federal Supreme Court held that the crime of embezzlement by a public servant requires a moral element or the intention to waste money. Evidence of this is required, there cannot only be that there is a deficit in the accounts. The embezzled amount is significant, and the embezzlement cannot be without the knowledge and participation of the Defendant. Moreover, the defendant had the relevant intention to constitute the crime of embezzlement.

Article 39 goes further to provide that if an act is committed under the influence of mistake of fact, the determination of the liability of the perpetrator shall be on the basis of the facts he misconceived. If the presence of these facts denies or extenuate his liability, provided that the basis of his belief be on reasonable grounds and the basis of research and investigation, they will also be a determining factor.

In the case of the mistake that made the perpetrator believe that he is not responsible is due to negligence or non-precaution, such perpetrator shall be answerable for a non-premeditated crime should to law penalize the act as being such.

Article 43 provides that the perpetrator will be answerable for a crime whether the crime was committed deliberately or by mistake unless the law expressly provides for premeditation.

In UAE 274/2016 the Federal Supreme Court had to assess the importance of the accused being aware that the substances they possessed were narcotics. The trial court, in this case, has to right to conclude elements of a crime attributed to the accused from all the elements presented to it including the element of possession or acquisition which shall be deemed fulfilled if the offender has direct or indirect relation to the drug as long as it is under his control.

The decision here that criminal intent shall be deemed to exist if the offender is aware that the substance possessed or acquired is a narcotic substance. The inference to prove the occurrence of a crime and the accused's relation to that crime is deemed to be the right of the court as it may adopt, in proving the crime, any evidence or presumption that convinces evidence supports the court.

The contested judgment was deemed valid as it had insightfully looked into the merits and evidence of the case and had concluded that it was proven that the Appellant had imported and possessed narcotics.  He had expressly confessed that he brought them from Pakistan to the UAE and he has been accommodated by the second accused at his place of residence, holding a bag while aware of the substances contained within it.

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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