Principled Investigations - Essay Example

Principled Investigations Arrest and Search The police are empowered to stop and search any person, vehicle, and anything in or on the vehicle for certain items. However, before they stop and search they must have reasonable grounds for suspecting that they will find stolen goods, or drugs, or an offensive weapon, or any article made or adapted for use in certain offences, for example a burglary or theft, or knives, or items which could damage or destroy property. Further, if a serious violent incident has taken place, the police can stop and search suspects without having reasonable grounds for suspecting they will find the items. (Schmalleger, 2002) The police must however provide suspects with the following information before the search can begin: proof of their warrant card, information on police powers to stop and search, information on your rights, the police officer's name and police station, the reason for the search and what they think they might find when they search you. When the suspects are arrested the police can search them for anything they might use to help them escape or for evidence relating to the offence that has led to their arrest. (Schmalleger, 2002) The police should normally arrest if they have a valid arrest warrant. However, there are some situations where they can effect an arrest without a warrant. The instances include where: suspects are in the act of committing certain offences, they have reasonable grounds for suspecting commission of certain offences, they have reasonable grounds for suspecting one has committed certain offences, suspects are about to commit certain offences and they have reasonable grounds for suspecting that one is about to commit certain offences. This also applies to where it is impractical or inappropriate to serve a summons due to suspects lying about their physical address. (Archbold, 1985) The police should use reasonable force in effecting arrest and at the police station; the police should inform suspects of: their right to inform someone of the arrest, their right to legal advice and their right to look at the police codes of practice. The right to legal advice can be delayed in very serious cases and the police detention should not exceed 24 hours without charging suspects. There should be counsel present in cause of a serious charge and where one is to be interviewed under caution. (Schmalleger, 2002) Charges and Elements The Crown Prosecution Service (CPS) is entitled by law to draft a charge sheet and present it before a court of law. The charges that the CPS can lodge against the defendant in this case scenario are aggravated arson contrary to section 1(2) as read with section 1(3) of the Criminal Damage Act, 1971. In the alternative, the CPS may lodge the charge of racially aggravated arson, contrary to section 3 of the Criminal and Disorder Act, 1998. The maximum penalty for aggravated criminal damage and arson is life imprisonment. The CPS must therefore prove the actus reus and mens rea of the defendant in order to link her to the offences. (Archbold, 1985) The elements of the felony of aggravated arson include those of simple criminal damage with the additional element of intending or being reckless as to the endangering of life. A person is guilty of criminal damage if they intentionally or recklessly destroy or damage property belonging to another without lawful excuse. The actus reus of aggravated criminal damage consists of destroy or damage, property, belonging to himself or another and endangering life. (Archbold, 1985) There is no statutory definition of 'destroy or damage', however some principles have emerged from case law. For instance, there is no requirement that the property is rendered useless, a diminution in value is sufficient for liability for criminal damage as seen in Roper v Knott [1898] 1 QB 868. Damage also includes temporary impairment or temporary loss of use as seen in  R v Fiak  [2005] EWCA Crim. 2381 and Morphitis v Salmon [1990] Crim LR 48.  All in all, the courts have come close to finding that actual damage is unnecessary as was held in Samuels v Stubbs [1972] 4 SASR 200. The CPS may prove that the victim’s property were destroyed or they may choose to rely on the case of Samuels v Stubbs. (Archbold, 1985) Section 10 (1) of the Criminal Damage act, 1971 defines property to only include tangible property. It includes real property such as land and buildings; and personal property including money. By virtue of the section animals are only included if they are tamed or ordinarily kept in captivity. However, wild mushrooms, fruit, flowers, foliage and plants are excluded. Therefore, the CPS can prove that the victim lost his property since he lost his house, crops, land and sheepdog. Section 10(2) of the Criminal Damage Act, 1971 provides that property will be regarded as belonging to any person having: custody or control of it, a proprietary right or interest in it or a charge on it. In this case it can be proved that Zoran Popovic is the owner of the property which is the subject matter of this case, having been bequeathed the whole estate by Farmer Giles who was the original proprietor. The danger to life must come from the damage to the property as seen in R v Steer [1988] 1AC 111. In the case, the appellant had an argument with a former business partner and went round to his house armed with a gun. He rang the door bell and then fired shots through the windows and doors. He was convicted of aggravated criminal damage under section 1 (2) Criminal Damage Act. His conviction under s.1 (2) was quashed as the danger to life came from the gun and not the damage to the property. There is however no requirement that life is in fact endangered as settled in R v Sangha [1988] 2 All ER 385. The mens rea of criminal damage encompasses the fact that the defendant must intend or be reckless as to the destroying or damaging of property and intend or be reckless as to the endangerment of life. If the defendant believes the property they are damaging belongs to them, they are not liable even where the mistake relates to a mistake of law as per R v Smith [1974] QB 354. The objective test for recklessness was set out in R v G & R [2003] 3 WLR where the two appellants, aged 11 and 12, went camping for a night without their parents’ permission. The boys found some old newspapers outside the Co-op which they lit with a lighter and then threw them under a wheelie bin. They then left without putting them out assuming they would naturally burn out. In fact the burning newspapers set light to the wheelie bin and the fire spread to the Co-op shop and caused over £1m of damage. The House of Lords quashed the defendants' convictions and overruled MPC v Caldwell [1982] AC 341. The court came up with the appropriate test of recklessness for criminal damage to be: "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk." The objective test has been applied in cases such as Booth v Crown Prosecution Service [2006] EWHC 192 Divisional Court of the QBD and R v Cunningham [1957] 2 QB 396. In Booth’s case the appellant had been drinking and had smoked cannabis. He described himself as tipsy but not completely unaware of events around him. He saw someone over the other side of the road and shouted to them. He then ran across the road without looking. A car was approaching at the time and did not have time to stop. The appellant managed to avoid being struck by jumping onto the bonnet of the car causing £517 worth of damage. He was convicted of criminal damage by the magistrates and brought a case stated appeal arguing the magistrates had applied an objective test to recklessness as they found that the damage caused by his act was "an obviously foreseeable consequence". They also found the appellant "would have appreciated" the risk of damage to the vehicle by his actions and "he deliberately closed his mind completely to the risks and ran out in front of a motorcar." His conviction for criminal damage was upheld since he was aware of the risk of a collision, inherent in that risk of a collision was not only the risk of personal injury but the risk of damage to property. (Archbold, 1985)  Defenses Section 5 of the 1971 Act provides for a special statutory defence of lawful excuse. S. 5(2) (a) covers belief in consent and s.5 (2) (b) covers belief that property was in immediate need of protection. However, s. 5(3) states that these two provisions are entirely subjective in their approach, based entirely on the defendant's belief. As such it need not be a justifiable belief provided it is an honest belief; therefore even a drunken mistaken belief is sufficient. (Archbold, 1985)  In the case of Jaggard v Dickinson [1981] 1 QB 527, the appellant had been out drinking for the evening and became stranded with no money or lift home. She went to a friend’s house and knocked on the door. There was no answer, so believing her friend would consent in the circumstances, she broke into the house. In fact the house did not belong to her friend. The court held that the rule set out in DPP v Majewski that a person cannot rely on a mistake induced by voluntary intoxication where the crime is one of basic intent does not apply where the defendant is relying on the special defence under s.5 (2) (a) of the Criminal Damage Act 1971 since it only requires the belief to be genuine. (Archbold, 1985) Burden and Standard of Proof The burden lies on the Crown to prove guilt and it is one of the most important safeguards in criminal justice system. This was established in the case of Woolmington v. D.P.P. (1935) House of Lords where the court held that the onus of prove lies on the prosecution and the accused does not have to prove anything. Therefore if onus shifts to accused, then it is like the judge makes a decision which is not common law. Therefore, the burden of proof in criminal cases rests on the prosecution who asserts and not on the defendant who denies as encompassed in the presumption of innocence. The accused is therefore presumed innocent until proven guilty and the presumption of innocence means three things: 1. With respect to the critical facts of a case the defendant has no burden of proof whatsoever. 2. The crown must prove the critical facts of the case to the appropriate level of certainty. 3. The jury is not to draw any inferences adverse to the defendant from the fact that he has been charged with a crime and is present in court represented by counsel to face the charges against him. (Cooper, 2003) The standard of proof in criminal cases is ‘beyond reasonable doubt’ and the Judicial Studies Board opines that juries might be assisted by being told that to convict they must be persuaded "so that you are sure". Consequently, the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offense generally beyond a reasonable doubt and to disprove all the defenses except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution. In case of real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, then the level of proof has not been met. The CPS must therefore attain the high proof standard of reasonable doubt since the criminal trial can result in the deprivation of a defendant's liberty or even in her death. (Cooper, 2003) Bad Character Evidence The admissibility of bad character evidence is set out in Sections 98 to 113 Criminal Justice Act 2003 (CJA 2003). Section 9 thereof defines ‘bad character’ in criminal proceedings to mean "evidence of or a disposition towards misconduct" while misconduct means the commission of an offence or other 'reprehensible conduct' as per s. 112 of the Act. It is a wide definition that applies to conduct arising out of a conviction, or conduct where there has been an acquittal as per R v Z [2000] 2 AC 483 and a person who has been charged with another offence, and a trial is pending, the use of the evidence relating to that charge in current proceedings. (Archbold, 1985) Reprehensible conduct should therefore be looked at objectively taking account of whether the public would regard such conduct as reprehensible such as racism, bullying, a bad disciplinary record at work for misconduct. There is a two stage test for admissibility of the defendant’s bad character. First, the evidence must be admissible through one or more of the seven gateways set out in section 101 Criminal Justice Act 2003: (a) all parties to the proceedings agree to the evidence being admissible; (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it; (c) it is important explanatory evidence; (d) it is relevant to an important matter in issue between the defendant and the prosecution, which includes: whether the defendant has a propensity to commit offences of the kind with which he is charged, except where such propensity makes it no more likely that he is guilty of the offence (section 103(1)(a) Criminal Justice Act 2003); Whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect (section 102(1)(b) Criminal Justice Act 2003); (e) it has substantial probative value in relation to an important matter in issue between the defendant and the prosecution; (f) it is evidence to correct a false impression given by the defendant; or (g) the defendant has made an attack on another person's character. Secondly, the evidence is admissible if it falls within section 101(1) (a) (b) (c) (e) and (f) Criminal Justice Act 2003. Where the evidence falls with section 101(d) or (g) it is admissible unless, on application by a defendant, it has such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (Archbold, 1985) Since the CPS will rely on section 101(d), it has to serve notice to the court as per s. 111 that it intends to adduce evidence of bad character but the defence can apply to have the evidence excluded under section 101(3). However, if the evidence upholds s. 101(1) (e) the court is compelled not to exclude evidence of bad character as per R v Musone [2007] EWCA Crim 1237. The courts therefore admit in evidence such evidence that is relevant to the case. At the pre-charge stage, the police should forward to the prosecutor details of a defendant's bad character including previous convictions, such as the facts of the previous convictions, the nature of any defences used in the previous cases, and whether the defendant pleaded guilty or was found guilty. The CPS can prove the defendant’s two convictions by production of a certificate of conviction together with proof that the person named in the certificate is the defendant whose conviction is to be proved, as provided for by section 73 Police and Criminal Evidence Act 1984. (CPS, n.d.) Testimony Taken in Absence of an Advocate The police must give suspects the right to see lawyer before questioning and interviewing since it is otherwise incompatible with the European Convention on Human Rights. The European Committee for the Prevention of Torture (CPT) has emphasised the importance of suspects having access to a lawyer from the very outset of their detention. Therefore the right of access to a lawyer should include the right to contact and be visited by the lawyer in conditions guaranteeing the confidentiality of their discussions. (Scott, 2010) The European Court of Human Rights in Salduz v Turkey, Application no 36391/02, held that in order for the article 6 (of the Convention) right to a fair trial to remain practical and effective, access to a lawyer should be provided from the moment of the first interrogation of a suspect by the police, unless it can be shown that there are compelling reasons to restrict this right. The court also noted that such compelling reasons would only exceptionally justify denial of access to a lawyer, and that even where such denial is justified, this restriction must not unduly restrict the article 6 rights of the accused. (Scott, 2010). However, the defendant confessed under caution that she committed the offence. Witness not entering Appearance in Court A witness is entitled to support from the police, courts and others involved in the criminal justice system. Since Zoran’s wife is afraid to give evidence in court, she can ask to sit behind a screen. The Witness Charter describes the level of service a witness should expect from the police in England and Wales, the Crown Prosecution Service, Witness Care Units and Her Majesty's Courts Service. It says that she should be treated fairly and with respect, no matter her race, religion, background, gender, age, sexuality or disability. The police will protect her from any threats or intimidations from the defendant, she can only testify in court when she is ready and she can be taken to court upfront and given information about what happens in court. The victim can also give her support in court as her husband. (UK Government, 2011) Bibliography Cooper, S. (2003). "Human Rights and Legal Burdens of Proof". Web Journal of Current Legal Issues 3. http://webjcli.ncl.ac.uk/2003/issue3/cooper3.html#Heading26. CPS Public Consultations, ‘Bad Character Evidence’. Retrieved March 25, 2012 from Frank J. Schmalleger, (2002) Criminal Justice: A Brief Introduction. (8th Ed) Prentice Hall, Inc. John Frederick Archbold, Pleading, Evidence and Practice in Criminal Cases (1985) in James Richardson. Sweet & Maxwell John Scott, ‘Detention without access to a lawyer ends in Scotland’ (2010). Retrieved March 25, 2012 from http://www.guardian.co.uk/law/2010/oct/27/detention-without-access-to-a- Lawyer-ends-in-Scotland.html The UK Government, ‘Your Rights as a Witness’ (2011). Retrieved March 24, 2012 fromhttp://www.direct.gov.uk/en/CrimeJusticeAndtheLaw/VictimsofCrime/index.htm Read More