In offences against the person, the fate of the case is decided at the moment of characterisation: was the act intentional killing or killing by negligence? Was the harm grievous or slight? That distinction can mean years of difference in penalty.
Contents
1) Classifying Offences Against the Person
The Kuwaiti Penal Code distinguishes categories of conduct according to the direction of the offender's will and the resulting outcome:
- Intentional killing: the will was directed at taking life.
- Assault leading to death: the will was directed at causing harm, not death, and death followed as an unintended consequence.
- Killing by negligence: no criminal intent at all, but negligence, recklessness or disregard of regulations.
- Bodily harm: ranging from slight harm to grievous harm resulting in permanent disability.
2) Intentional Killing
It rests on two elements: a material element, the assault causing death, and a mental element, the intention to take life. Intent is inferred from objective indicators, never from conjecture:
- The nature of the instrument used and whether it is lethal by its nature.
- The location of the injury on the body and its gravity.
- The number, repetition and force of the blows.
- The offender's conduct before and after the act.
- Prior threats or an existing feud.
3) Premeditation and Lying in Wait
Premeditation
A calm resolve to commit the offence formed before execution, after reflection and deliberation. It is a state of mind inferred from the circumstances.
Lying in wait
Waiting for the victim for a period in a place the offender expects them to pass, intending to take them by surprise.
4) Killing by Negligence
This occurs without criminal intent and rests on fault in its forms: negligence, recklessness, want of caution, or disregard of laws and regulations. Its commonest settings are traffic accidents, workplace injuries and professional error.
- A causal link between the fault and the death must be established.
- It may be aggravated where committed under the influence of an intoxicant or accompanied by flight from the scene.
- Settlement with the victim's family has a real practical effect on the course of the case.
5) Degrees of Bodily Harm
Offences of bodily harm are graded by the gravity of the effect and the period of incapacity for work:
- Slight harm: leaving no permanent trace, generally characterised as a misdemeanor.
- Grievous harm: resulting in illness or incapacity for work for a period fixed by law.
- Permanent disability: loss of an organ or of its function, permanently impaired; the gravest characterisation.
6) The Medical Report
The forensic medical report is the backbone of these cases, determining the nature and cause of the injury, the period of treatment, and any permanent effect.
- Its consistency with the rest of the case file must be examined.
- The defence may seek examination of the forensic physician or appointment of a medical panel.
- The date of examination compared with the date of the incident carries real significance.
7) Principal Defences
- Self-defence: conditional on a present unlawful danger and proportionality between the response and the attack.
- Absence of intent to kill, seeking characterisation as assault leading to death.
- Negating premeditation and lying in wait.
- Breaking the causal link between act and outcome.
- Grave provocation as a mitigating excuse where the law allows.
- Nullity of procedure or of a confession extracted under coercion.
8) Civil Claims and Blood Money
Criminal proceedings do not prevent an injured party from pursuing civil rights. The victim's family — or the injured person — may claim compensation for material and moral damage, and the rules on blood money apply as prescribed by law and Sharia.
