When we speak of theft, fraud, or assault, we speak of particular offences each with its own provision and defined elements. Yet there are general rules applying to all offences alike, determining when an offence arises, when it is complete, who answers for it, and how penalties are assessed where offences are multiple or repeated. These rules form what is known as the general part of criminal law, set out in Kuwait Penal Code No. 16 of 1960. Understanding them is essential for anyone facing a charge, since the strongest defences in criminal cases are frequently built on them rather than on the facts alone.
The Elements of an Offence
An offence arises only where three elements coincide, and the absence of any one means no criminal liability:
- The legal element: a provision criminalising the act and prescribing a penalty in force at the time of commission, applying the principle that there is no offence or penalty without a text. Analogy may not be used to create offences, and criminal legislation is not retroactive unless more favourable to the accused.
- The physical element: the criminal conduct, the result, and the causal link between them. Conduct may be positive by act or negative by omission of a legal duty.
- The mental element: the perpetrator's state of mind, taking two forms: criminal intent comprising knowledge and will in intentional offences, and negligence in its forms of carelessness, recklessness, want of caution, and breach of regulations in unintentional offences.
To these must be added the absence of justifications such as self-defence, exercise of a right, and performance of duty, and the absence of bars to responsibility such as minority, insanity, and duress. The presence of any of these negates the offence or responsibility for it.
Attempt
Attempt is the commencement of execution without completion, and is among the most exacting questions in the general part:
- Commencement of execution: the perpetrator must have performed an act forming part of the physical element or so directly connected to it as to lead immediately to it. Preparatory acts do not suffice.
- Preparation distinguished from execution: buying a weapon or watching premises is preparatory and not punishable in itself, whereas aiming the weapon or forcing the door is commencement of execution.
- Failure for reasons beyond the will: the result must have failed to occur for a reason independent of the perpetrator's will, such as third-party intervention, a missed shot, or the victim's resistance.
- Voluntary desistance: where the perpetrator abandons completion of their own volition rather than because of an external obstacle, attempt is not punishable, encouraging desistance. They remain liable for any acts already committed that constitute a completed offence in themselves.
- Impossible offences: a contested question in doctrine, distinguishing absolute from relative impossibility when assessing responsibility.
- Scope of punishment: attempt is punishable in felonies, and in misdemeanours where the law so provides, and is not punishable in contraventions. The penalty for attempt is lighter than for the completed offence.
Criminal Participation
An offence may be committed by more than one person, and each role must be identified because the penalty varies accordingly:
- Principal: a person who commits the offence alone, participates directly with others in performing its physical element, or uses another as an instrument who bears no responsibility, such as a child or an insane person.
- Accomplice by incitement: a person who implants the idea of the offence in the perpetrator's mind and moves them to commit it, liable even without participating in execution.
- Accomplice by agreement: a person who agrees with another to commit the offence, which is then committed pursuant to that agreement.
- Accomplice by assistance: a person who provides the perpetrator with means or aid facilitating the offence, knowing its purpose.
- Borrowed criminality: the accomplice's liability is tied to the principal act. Where the offence is negated as to the principal for an objective reason such as absence of the physical element, it is negated as to the accomplice. Personal excuses available to the principal do not benefit the accomplice.
- Excess by the principal: where the principal commits a graver offence than agreed, the accomplice answers for the offence agreed unless what occurred was a probable consequence of it.
Aggravating and Mitigating Circumstances
The penalty is not uniform and is affected by circumstances attending the offence or the offender:
- Objective circumstances: attaching to the act itself, such as use of a weapon, numbers, or commission at night, and applying to all participants who knew of them.
- Personal circumstances: attaching to the offender, such as being a public official or a relative, and applying only to the person in whom they exist.
- Statutory excuses: exhaustively defined by law, either exempting from or mitigating punishment.
- Judicial mitigation: the court has a discretion to reduce the penalty where the circumstances of the offence or the accused's situation call for leniency, stating its reasons in the judgment.
Recidivism and Multiple Offences
The law addresses two situations concerning repeated or multiple offending, each with different rules:
- Recidivism: committing a fresh offence after final conviction for an earlier one. It is an aggravating factor permitting a heavier penalty, indicating that the offender has not been deterred.
- Material multiplicity: several offences committed by several acts. Where wholly independent, a penalty is imposed for each. Where indivisibly connected by unity of purpose, they are treated as a single offence and the penalty for the gravest is imposed.
- Ideal multiplicity: a single act constituting several offences, as where one shot strikes two people, and the penalty for the gravest offence alone is imposed.
- The heaviest-penalty rule: its purpose is to prevent accumulation of penalties beyond what proportionality permits, and it is among the most important points for the defence to press where charges are multiple.
- Unity of the incident: a person may not be tried twice for the same act, a settled principle connected to public order.
Practical Significance for the Defence
Substantial defences are built on these rules and are often more effective than disputing the facts:
- Denying criminal intent in intentional offences by demonstrating the absence of knowledge or will.
- Arguing that what occurred amounted only to preparatory acts, not commencement of execution.
- Relying on voluntary desistance where the indications support it.
- Characterising the accused's role as accomplice rather than principal, with its effect on penalty.
- Relying on the connection between charges to seek imposition of the heaviest penalty alone.
- Arguing the absence of an element of the offence, or the existence of a justification or bar to responsibility.
Command of the general part of criminal law is what distinguishes rigorous criminal defence. Many acquittals and reductions in sentence rest on a general principle rather than on denial of the facts. Yamnak Law Firm prepares procedural and substantive defences in criminal cases and appears before courts at every level, observing complete confidentiality in each client's circumstances.
