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Criminal Liability For Medical Negligence

Medico Legal

by Dr. Hassan Elhais

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 uti- lization 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 de- termine the criminal intent of a person as he is always aware of acts and the consequences attached to it, yet it is one of the difficult tasks before the criminal court, depending upon varying circumstances of the case. The major difference between criminal intent and negligence, as understood by 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

The Federal Law Number 3 of 1987 concerned the UAE Penal Code (the Code) provides for the basis of criminal intention. According to the Code under Ar- ticle 38 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 act under the law and desire leads to the outcome of such act.

Whereas, any act will be considered as a mistake if it was committed with sheer recklessness, negligence, non-observance of law, and carelessness. The Code has vested discretionary powers in criminal judges and prosecutors to determine the criminal intent by conducting comprehensive and intense interroga- tions from which they may conclude the guilt of the accused. On the 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 determine the element of criminal intent and asses the evidence presented by the public prosecutor and the defence submitted by the accused. Court's utmost focus is to achieve an ob- vious result on the basis of the evidence presented to either convict the accused of the criminal act or ac- quit him due to insufficient evidence to prove his guilt.

In this article, we will exhibit how the courts in the UAE at the 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 estab- lish or set aside the criminal intent which includes merits of the case, evidence produced before the court, circumstances and the precedents. The fore- going case determined the criminal intent while es- caping the police custody. Supreme Court further held that in crime for desertion, the accused fulfils the moral element of criminal intent when he tried to escape from police custody. The happening of an event or the distance he travelled is irrelevant as long as the intention to do a crime is established.

The knowledge of possessing narcotics drugs estab- lishes 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 act along with the crim- inal intent on the basis of evidence and investigation by the prosecutor.

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

It Concludes that 


The aforementioned precedents simplified by Criminal Lawyers in Dubai assisted the courts and the public prosecutor in analyzing the merits, evidence and the 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 de- pending upon the discretion and understanding of the criminal court in such circumstances.

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Contact: Dr.  Hassan Elhais

Dubai: +971 4 355 8000

Abu Dhabi: +971 2 650 1211


August 05, 2019

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