Legal Elements of the Offence - Essay Example

Criminal Law Number Department Discuss the legal elements of the offence/s that you proposed to be charged, and how the prosecution can prove each of these elements. Charges of criminal damage should be brought against Mr Wiersowski for his suspected criminal misconduct and disturbance to the Smiths. He is suspected of causing damage to property as an individual. Mr Wiersowski’s damage of his neighbour’s door also amounts to vandalism. Vandalism and criminal damage play an overarching role in charging criminal suspects, provided there is evidence that a particular property had been defaced and or destroyed by the individual facing the charges. Although, a number of criminal damage torts are still falling under the Malicious Damage Act 1861, the latest body of law under which vandalism and criminal damage are expended is the Criminal Damage Act 1971 (CDA). The Act states that anyone who unlawfully intends to destroy, damages property belonging to another or shows recklessness in handling another person’s property shall be liable for criminal damage offenses. In this case, the belief that Mr Wiersowski was given consent to damage the door is out of question since the property owners were already asleep when the drunken criminal suspect was struggling with the neighbour’s door. The CDA under Section Five provides several exemptions for charges of criminal damage including where sufficient authorization may have been given or where the suspected criminal had acted in good faith such as rescuing property or an infant from, say, a burning house. For successful filing of claims of criminal damage and vandalism against Mr Wiersowski, the prosecution must relate the suspect’s actions with the specifics of the Criminal Damage Act. The prosecutor must first identify a property forming the basis of the crime (which in this case is damaged door); and such property (the door) must belong to another party (who in this case are Mr and Mrs Smith). Secondly, the prosecutor should prove the suspect’s intention to damage the door (property) or his recklessness as the cause of the destruction. By kicking the door rather than knocking on it or pressing an alarm is evident enough of Mr Wiersowski’s intention to damage the property in a reckless manner. Finally, the offender must be shown to have acted without due permission from the property owner or in bad faith. 1. Explain the burden and standard of proof in relation to the offence/s that you proposed to be charged and any possible defences. The burden and standard of proof applicable for charging Mr Wiersowski will be his actions being proven beyond reasonable doubt as it is applicable in other criminal cases. The precedent for admissibility of criminal proceedings was set in the case of Woolmington v DPP [1935] A.C. 462. In the current case, the court would be persuaded to explore the elements of guilty act (actus reus), and guilty mind (mens rea) in order to bring the accused to book. As specified in the CDA 1971; the actus reus would constitute Mr Wiersowski’s damage of the property (door) belonging to another (his neighbour) without legal excuse. The suspect’s intention to behave in the criminal way through a show of recklessness constitutes the mens rea required for the admissibility of the case. In the admission of the thresholds of actus rea in this case, the court will have to consider the damage caused to the door as falling within the parameters of damaged property as in keeping with the CDA 1971. The test for a damaged property is one that is defaced, impaired or has lost value. This case meets the actus reus and mens rea of criminal damage since the door was recklessly damaged to an extent that it would cost £600 to replace. Despite the gravity of the offences facing the criminal suspect, he has two defenses: a) he has a history of forgetfulness (he could not recall vandalizing his neighbor’s door) and must have mistakenly identified his door under an impaired state of mind (alcoholism). He can argue that, but for his forgetfulness, he could have rightfully identified his door and obtained lawful excuse to gain entry. Mr Wiersowski’s case is similar to that of Jaggard v Dickinson (1980) QBD in which the defendant forcefully gained entry into a house while under the influence of alcohol, thinking the property belonged to her comrade. She argued that her friend would have given her a lawful excuse, and the court granted her pleas, holding that her intoxication voided her guilty mind at the time of committing the crime. 2. Did PC Dennis act lawfully in exercising powers of entry and arrest at Mr. Wiersowski’s home address? Generally, police officers can only gain entry into property without the relevant warrant if they are responding to an emergency and securing the document would delay the process of containing the situation such as the avoiding the escape of a criminal suspect. The emergency in this case which called for the two officers’ entry in the Wiersowskis’ property without a warrant was to contain a violation of the peace at Mr and Mrs Hardy’s residence or to arrest an individual or individuals in relation to the offences that were underway when they were called in or save the lives of the victims or prevent grave damage to their property. PC Dennis exercised the powers of police when gaining entry and to execute an arrest at Mr. Wiersowski’s residence because he had reasonable grounds to believe that the criminal suspect whom they were searching for in connection with the criminal damage caused to the Smiths was on the premises. In addition, he conducted himself lawfully by asking to be allowed in with threats of using force if the residents did not comply. With regard to whether it was lawful for the officer to advance upwards to the suspect’s bedroom in order to secure his arrest, PC Dennis entry was justified considering that he did so when it became apparent that the suspect could not come out of the bed and his wife was too scared to wake him up. Despite the fact that Mr. Wiersowski had moved away from the scene of crime when the officers arrived, the police managed to identify the damage and with a brief statement from the Smiths, they had reasonable grounds to believe that the suspect was Mr. Wiersowski. This is especially the case considering that the suspect was the only Polish living in the neighborhood and the couple had heard him shout in Polish language by the time the crime was underway. The officers were sure of his presence in his house and did lawfully capture him. His claims of assault by PC Dennis are baseless considering that the officer employed the modest of force that was necessary for his arrest as attested by his wife and PC Barratt who said they heard the arresting officer saying “police…calm down.” 3. Mr. Wiersoswki was interviewed for a second time on 16th April 2012, when DC Callow put to him the evidence of the taxi driver. He refused to answer any questions in relation to this. He has also indicated that he does not intend to testify at court if charged. Consider whether the court may draw inferences in relation to his silence? Although, Mr. Wiersowski has the right to silence, his refusal to speak may trigger adverse inferences by the police and the prosecution. Nonetheless, common law provides for sparing use of adverse inferences in cases where guilty plea was established. As [CITATIONS] has indicated, adverse inferences can only be drawn on Mr. Wiersowski when the court has established that he was on the same pedestal with DC Callow during the interview and that the officer reasonably expected the suspect to respond to the questions immediately as they were being presented to him on 16th April 2012. Despite the uncertainty as to whether such charges read to the suspect should be done in the presence of law enforcers, but in this case it is evident that an officer was involved, hence its lawful nature. The Criminal Justice and Public Order Act 1994 seeks to regulate the use of adverse inferences arrived at from silence. According to the Act, adverse inferences will suffice in certain situations where prior to or in the course of bringing charges against a suspect, he or she: he does to comment on any statement which they later use in their case and which the suspect could have acted reasonably by mentioning; fails to testify at trial or respond to any question directed at him or her (which Mr. Wiersowski intends to do); fails to elaborate on his own presence and that of objects, materials or marks on his body, garments or footwear in his or her custody or where the arrest was made; or fails to testify on his presence in the place of his arrest place. The drawing of adverse inferences from Mr. Wiersowski’s silence will be subject to the court’s guidance of the jury with regard to the parameters within which the processes should fall. In this case, the suspect may be exempted from a conviction based on his silence about the evidence provided by the taxi driver if he proves that the police officer did not act reasonably by bringing the issue to his notice ahead of the April 2012 interview. Therefore, his silence may have been validly driven by his lack of expectation of the question. Alternatively, if the suspect proved that by responding to the taxi driver’s evidence he could self-incriminate, the court would be obliged to limit the application of adverse inferences. 4. Discuss any evidential issues relating to the identification of the offender that may arise at trial? There is need to accurately identify offenders as failure to do so may result in the charging of a wrong person. The main evidential issues relating to offender profiling in this case are: a) the lack of exhibit that can be taken to a forensic laboratory for DNA and or fingerprint identification – the suspect practically damaged the door by kicking it possibly with his feet covered with footwear; b) the criminal suspect was not found on the scene of crime by the police officers responding to the distress call - as such there is no solid circumstantial evidence pointing to the suspect in question; c) the victim-witnesses had poor visibility that night and could not effectively identify the suspect. In this case, the suspect may use the impaired visibility conditions as his basis of defense since such conditions may easily result in the delivery of inaccurate testimony. Mr Wiersowski may choose to challenge the victims to identify his dressing or whether they saw his face that material day. The brief glance downwards in the direction of the scene of crime may not be adequate identification. The precedent set in the case of R v Montgomery [1995] 2 All ER 28 as to whether a parade may be unnecessary to the identification of a criminal suspect applies in this case. This is because the witnesses did not have a view of the alleged attacker and their identification of their Polish neighbor will not link him to the incident. Regardless, even if the suspect succeeded to discredit the testimonies of the two key witnesses on poor visibility grounds, investigators can use other scientific and behavioral methods to shore up the evidence for the guilty verdicts which normally remain largely intact. For example, the suspect can be identified by: his proficiency in Polish language, which the witnesses heard him complain in as he was committing the crime; his potentially nearby geographical location considering that it took the suspect less than 20 minutes to disappear from the scene of crime into his house, and; his psychological state of mind at the time of crime commission - the victims identified the suspect as drunken, judging by his muffling voice. The arresting officers also found him in a similar condition at the time of the arrest. In addition, any presence of heavy boots or similar footwear in the suspect’s house which could have been used to damage the victims’ door could also lead to his profiling. 5. Daniel Wiersowski has one previous conviction for Assault occasioning actual bodily harm on Petra Wiersowski in 2010 and a previous police caution for criminal damage to a taxi in 2011. Consider the admissibility of this bad character evidence at trial. The admissibility of bad character evidence is subject to statutory provisions. Section 101 of the Criminal Justice Act 2003 regulates the admissibility of such evidence based on two conditions: firstly; if a) all parties are in agreement as to the admissibility of the evidence; b) the evidence is confessed by the defendant or in response to a question directed at him with the intention to evoke the issue during cross-examination; c) it improves better understanding of the criminal background of the suspect in question; e) the body of evidence has material value to the unearthing of the potential culpability of the defendant(s) and; f) it is proof aimed at correcting falsehoods presented by the defendant. Secondly, clauses “d” and “g” are reserved to protect the rights of the defendants. On the one hand, Clause d) considers a defendant’s propensity to commit certain crimes to an extent that he or she is no more expected to be guilty; or where the defendant has a tendency of being untruthful, but for where no questions have been raised as to the defendant’s untruths. On the other hand, Clause g) regulates where a defendant has attacked another party’s character. In light of these provisions, the bad character evidence against Mr. Wiersowski’s would be admissible unless the defense applies for their exclusion based on clauses Article 101(d)(g) to the effect that such evidence would jeopardize the defendant’s just trial. In this case, the bad character evidence will mostly likely be admissible because it satisfies the provisions of Section 101(c) and 101(e) since it relates to the criminal history of the defendant; Clause, and 101 (f), since it corrects the falsehoods of the suspected criminal’s that he cannot recall causing criminal damage to his neighbor’s property, but can recall the arresting officer assaulting him during the arrest among other issues. The fact that he had committed a similar offense on a taxi driver’s property in 2011 and had been cautioned by the police is evident enough of the need to admit the evidence, as he does not seem to want to avoid his criminal behavior. 6. Samantha Hardy and John Smith moved house shortly after this incident. Samantha has indicated that she does not wish to give evidence at trial as she is too frightened of Mr. Wiersowski. She believes that if she gives evidence at court he will intimidate her by staring and she will then be unable to answer any questions. How might Samantha be assisted in testifying? Would the prosecution be entitled to admit her witness statement as evidence, if she is unable to testify? The need for open court processes is a basic doctrine envisaged as the right to fair trial under Article 6(1) of the European Convention on Human Rights (ECHR). This includes the condition that prosecution witnesses should be recognizable to the entire court. Ms Samantha’s presence in the court when giving her testimony is part of the defendant’s fair trial. This would give the defense the opportunity to carry out cross examination of her as a witness and so enjoy the opportunity to corroborate the prosecution evidence. In addition, her former neighbours might be persuaded by her taking to the witness stand to strengthen the case and help with the pursuit of justice. The doctrine of fair trial can sometimes substantially prevent successful prosecutions, especially when a witness has founded fears for her life. Even though Samantha has relocated to a different residence, she has fears of a possible botched testimony of hers considering the criminal history of the accused, hence the need for the court to secure her protection during trial. In this case, the police should establish her claims and make an effort to furnish the prosecution with the information. Essentially, a debate about the kind of protection that she deserves should be implemented by the prosecution in conjunction with the police at the pre-trial stage. Owing to the fact that she is a key witness, her testimony is vital and must be secured at any cost. The most appropriate method of presenting her evidence in a manner that favours cross-examination without necessarily taking to the witness stand is by video link. Read More