In law, a failed criminal is still a criminal

Most of us are clear that if we break the law we have committed a crime, and laws around the world have established clear mechanisms for dealing with crimes of all kinds, holding the perpetrator responsible for their actions and imposing appropriate penalties. But what if a crime is only partially completed — or merely considered, without being acted upon?

A completed crime is easy to define; it is an intentional criminal act that achieves the outcome intended by the perpetrator. An attempted crime is trickier, but in law there are three main pillars.

First is the external or objective element of the crime, or “actus reus,” when the perpetrator is physically responsible for an unlawful act, whether by commission, omission or possession. Second is the mental element, or “mens rea,” which is the knowledge by the perpetrator that their action or lack of action will cause a crime to be committed.

The third pillar is the fact that the crime is not completed for an external reason that hindered the perpetrator. It is important to note that this does not affect the mental element, since the intention to commit the crime remains, even if the act itself is incomplete.

In law, there is a vast difference between a failure to commit a crime owing to circumstances beyond a perpetrator’s control, and failure to commit a crime because the perpetrator deliberately and intentionally decides not to proceed with the act, even though they may be physically able to do so. In the latter case, there is no penalty for the perpetrator if he voluntarily desists from committing the crime.

In the case of the former, when the perpetrator intends to commit a crime but is somehow prevented from doing so, Saudi law punishes the intended perpetrator according to the nature of the crime, subject to the discretion of the court’s judges. This discretionary punishment should be less severe than if the crime had actually been committed. 

To be clear, then, attempting to commit a crime but failing to do so is in itself a crime, and attracts due punishment.

• Dimah Talal Alsharif is a Saudi legal counsel and a member of the International Association of Lawyers.

Twitter: @dimah_alsharif