Can a child be held criminally liable?

Compos Mentis is one amongst the other significant elements in establishing criminal accountability. Mental ability and discernment are developed as an individual grows and attains a specific age which enables him to determine the difference between right and wrong prior to committing any act. Considering the age to establish the criminal intent implies an assessment of criminal liability of a juvenile.

Criminal jurisprudence affirms to the absence of criminal liability or accountability in a human below age criteria. The term juvenile is defined as anyone who is declared as minor or below a certain age. However, the age criteria vary from jurisdiction to jurisdiction, wherein in most countries, it is below 18 years of age, and in some, it is 20 years. In accordance with the juvenile justice system, adults and juveniles are prosecuted under different judicial procedures, due to the absence of criminal intent in a juvenile's criminal act. It is believed that a minor is incapable of possessing the mens rea to commit a crime which is also referred to as "Doli Incapax".

UAE Penal Code for Juveniles

The country has always considered measures to safeguard the interest of the child, consequently promulgated laws and regulations in association with juvenile's delinquency. Federal Law Number 9 of 1976 regarding Juvenile Delinquents and Vagrants (the Juvenile Law) define a juvenile as any human being less than 18 years old at the time of committing any crime (Article 1). Nevertheless, any individual who as below the age of 16 years of age at the time of committing an offence, punishable under UAE Penal code will be subject to the punishment decided by the court as it may deem fit. Pertinently, any crime attracting capital punishment or life imprisonment shall be replaced with a maximum of 10 years of imprisonment for juveniles, this is in accordance with Article 10 of the Juvenile Law. Apart from penalties, the juvenile committee shall set up appropriate institutions for juvenile study and education programs. In line with the foregoing, the government of UAE has also established Juveniles rehabilitation centres under Federal Law Number 43 of 1992 (the Rehabilitation of Juvenile Law) entailing provisions for rehabilitation.

Pursuant to Article 49 of the said Law, Ministry of Interior shall pass a resolution for establishing a committee for rehabilitating juveniles prosecuted for crime along with confirmation of Ministry of Labor and Social Affairs, head by the president of Federal Public Prosecution and shall include following members:

a. An officer;

b. Psychology specialists;

c. A representative from the Ministry of Education;

d. A representative from the Social Affairs Ministry.

The Rehabilitation of Juvenile Law ensures the betterment of juveniles and entails provisions which will enhance their growth and to educate them and allow them to understand the value of social life, subject to that the resolution is passed on the basis of confirmation received from the committee. Last, but not the least, Federal Law Number 3 of 1976, UAE Penal Code under Article 62 states that no criminal action can be filed against an individual who at the time of committing any act was below the age of 7 years. Importantly, the age of the minor shall be determined by an official deed, and if it is not available, a special physician shall be an appointment for determining the age of the child through technical means. The concerned provision explicitly bars any criminal action against a child less than the age of 7 years. The provision is in accordance with the principles of Sharia wherein; it is agreed that a child below the age of 7 years does not possess consciousness and will to commit any crime. However, the public prosecution or the appropriate committee may order the child for proper education and recreational remedies for his growth and behaviour. On the contrary, children above the age of 7 years but less than 16 years, shall be prosecuted according to the provisions of Juveniles Law as mentioned under Article 63 of the Penal Code. The law further states that the age of the child will be ascertained from the civil register on the day of committing any crime and not on the day of presenting him before the appropriate authority.

International Recognition

Internationally, the juvenile system also considers the age of the juvenile who committed the crime and has laid down measures to safeguard the interest of the juveniles. Consequently, several countries have imposed legislation protecting the children from abuse of law. Innumerable international conventions and guidelines have been issued by international organizations providing the basis for several countries juvenile legal framework, which are as follows:

a. United Nations Convention on the Children Rights, 1989;

b. United Nations guidelines for protection of Juveniles deprived of liberty, 1990,

c. International Conventions on Civil and Political Rights, 1966;

d. UN guidelines for preventing delinquency of Children, 1990.

Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.