Theft of a Walking Stick Belonging to the John Lewis Partnership - Case Study Example

 Date of trial and custody time limits 24 February 2011 Details of case and parties Joseph Wearn, on the 8th day of December 2010, is alleged to have stolen a walking stick belonging to the John Lewis Partnership. Witness: Javi Olmeda (Page 1-2) Occupation: Store detective, John Lewis Partnership Statement taken on: 9 December 2010 Statement: Mr. Olmeda is a store detective employed by Securigard PLC. Mr. Olmeda was on duty on 8 December 2010 when the alleged theft occurred. Witness states that on or about 12.25 hours, he noticed the defendant and was able to identify so-mentioned person as Mr. Joseph Wearn. Mr. Olmeda saw the defendant, Joseph Wearn, hovering around a display of walking sticks. Mr. Wearn was looking around rather suspiciously. Mr. Olmeda contacted his colleague in the video control room to have the camera operator focus on Mr. Wearn. Mr. Olmeda then witnessed Mr. Wearn take a walking stick. Mr. Wearn camouflaged the walking stick and made a speedy exit through the front of the store without stopping to pay for the item. Mr. Olmeda followed Mr. Wearn all the way to the main concourse area inside Brent Cross shipping centre. Mr. Olmeda took hold of Mr. Wearn’s arm and cautioned him that he was the store detective and that he watched him remove a walking stick and exit the door without paying for it. Mr. Olmeda asked Mr. Wearn to step inside the store with him while he contacted the store manager, Mrs. Linda Levison. Mr. Olmeda retrieved the walking stick from Mr. Wearn when he stopped him outside of the store. Mr. Wearn repeatedly shouted obscenities while on the way to the store manager’s office, Mrs. Linda Levison’s office. Mr. Olmeda explained to Mrs. Levison what had just transpired and handed her the walking stick. The store manager, Mrs. Linda Levison, phoned the police who arrived at 12.50 hours. Mr. Olmeda explained what had transpired and then he returned to his post. Witness: Mrs. Linda Levison Occupation: Store manager of John Lewis, Brent Cross, London Statement taken: 9 December 2010 Summation: Mrs. Linda Levison is the store manager for John Lewis, Bent Cross, London. On 8 December 2010, Mrs. Levison was met in her office by store detective, Javi Olmeda. Mr. Olmeda informed her that he had apprehended Mr. Joseph Wearn for taking a walking stick from the store without paying for it. Mrs. Levison took Mr. Wearn, who was escorted by the store detective, Javi Olmeda, to her office. She proceeded to call the police who arrived on or about 12.50 hours. This is pursuant to the store policy of contacting the police whenever a theft is alleged. According to Mrs. Levison, the alleged perpetrator, Mr. Wearn was crying while they awaited the police to arrive. Once the police had arrived, Mr. Olmeda, the store detective, recounted the allegation and returned to his post. According to Mrs. Levison, the walking stick that she had been given by Mr. Olmeda was characterized by a prominent lion’s head handle. It also had the store’s label attached to it so that Mrs. Levison was able to ascertain that the item in question was indeed sold at her store and part of the inventory. With the information from the label of the walking stick, Mrs. Levison was able to identify it as part of the store inventory and that such a walking stick, according to computer records, was not sold on 8 December 2010. Mrs. Levison handed the walking stick over to one of the attending officers, PC May. She then witnessed Officer May arrest Mr. Wearn and watched them leave her office. Mrs. Levison is producing the computer records from 8 December 2010 (Exhibit LL/1), and is willing to give evidence in court. Witness: Richard Fairchild Occupation: Security camera operator Statement taken: 9 December 2010 Summation: Mr. Fairchild is employed as a security camera operator by Securigard PLC. On 8 December 2010, he was working at the John Lewis Partnership’s central office manning the camera desk. Mr. Fairchild is responsible for operating the security camera. The security camera is set up to monitor and record any view of the store floor. Additionally, Mr. Fairchild can maneuver the camera manually if necessary. Mr. Fairchild states that at or about 12.25 hours on 8 December 2010, he received a call on his radio and was asked to focus the camera on the men’s department. The camera focused on a man in his sixties, with grey hair, and wearing a green anorak. The gentleman (now known to Mr. Fairchild as Joseph Wearn), was observed removing a walking stick from a display and moving at a brisk pace toward the store’s exit. Mr. Fairchild was able to follow and record these actions on a videotape. (Exhibit RF/1). The videotape was given to the police the day following the alleged theft. Mr. Fairchild is willing to give evidence in court. Witness: Oscar May Occupation: Police Officer #84 Statement taken: 10 December 2010 Summation: Officer May was on duty as a foot patrol officer on 8 December 2010 accompanied by Officer PC Doyle. Officer May received a call on his radio at or about 12.40 hours. He was stationed outside of WH Smith in the Brent Cross shopping complex’s lower level. The call originated in the store manager’s (Mrs. Linda Levison’s) office at John Lewis. Officer May and Officer Doyle were met by Mrs. Levison, the store manager, and Javi Olmeda, the store detective. A man by the name of Mr. Wearn was detained and crying. After Officer May and Officer Doyle introduced themselves, Mr. Olmeda, the store detective, repeated the allegation in front the defendant, Mr. Joseph Wearn. Mr. Wearn acknowledged that he had heard the allegation against him. Officer May asked Mr. Wearn if there was anything else that he wanted to say, to which he shook his head and commenced crying. Officer May attempted to ascertain details from Mr. Wearn regarding his name and other details but Mr. Wearn was not forthcoming. Then Officer May conducted a search of Mr. Wearn’s coat (complying with GOWISELY) and discovered correspondence with his name and address. At that time, Officer May was handed a walking stick by the store manager, Mrs. Linda Levison. Officer May subsequently bagged and labeled the evidence. (JO/1) Officer May arrested Mr. Wearn on suspicion of theft at 12.52 hours. Officer May and Officer Doyle accompanied Mr. Wearn to the Hendon police department. Mr. Wearn continued to cry and mutter to himself during the drive to the police station but appeared to be calm upon arrival. After arriving at the police station at 13.12 hours, Mr. Wearn was booked and the allegation was repeated to the custody officer. Once again, Mr. Wearn began to cry. Officer May and Officer Doyle interviewed Mr. Wearn at 19.00 hours. Mr. Wearn declined having a solicitor present. The interview was recorded on audiocassette with a reference number of H/A/JW/0778. (Exhibit OM/1) Officer May produced a written summary of the interview as Exhibit OM/2. The interview concluded at 19.36 hours. After the interview, Officer May placed the walking stick (JO/1) in the exhibits room and logged it into the exhibits book. Officer May was also present with Officer PC Doyle at 20.07 hours when Mr. Wearn was charged with theft. Mr. Wearn was read the charge and cautioned but he made no comment. The next day, Officer May met Mr. Richard Fairchild, John Lewis’s security camera operator, at 11.15 hours and obtained a video which Officer May bagged and labeled RF/1. Then Officer May took the videotape to the Hendon police station where he logged it into the exhibits book and placed it in the exhibits room. Statement of the defendant: Joseph Wearn Occupation: Unemployed/Incapacity Benefits Statement taken: 8 December 2010 Summation: Joseph Wearn is a 59 year old white male, never married, and living alone in a rented council flat. He has been unemployed since 1996 and receives incapacity and housing benefits for a history of psychiatric illness. Mr. Wearn has been incapacitated with schizophrenia since 1996 and has received care both as an outpatient and inpatient hospitalizations. Mr. Wearn has difficulty coping with stressful situations and takes psychiatric drugs to maintain his psychiatric health. On 8 December 2010, Mr. Wearn visited the Brent Cross shopping centre. He left his home at 10 am and arrived at Brent Cross around 11 am. He began to feel tired and experience back pain after walking around several shops. For this reason, Mr. Wearn decided to buy a walking stick in the hopes of help with the relief of his back pain. He found a walking stick in the men’s department, paid for it in cash, then left the store and began to return home. One his way home, he realized that the walking stick was not long enough for his leg which caused him to lean, exacerbating his pain rather than providing relief. Mr. Wearn went back to the store and proceeded to return to the men’s department to see if he could find a different walking stick that would suit his needs. He could not find a shop attendant and since he was tired, he put the walking stick that he had back onto the display and took a new walking stick that was more suitable. He then exited the store. Mr. Wearn was then stopped by a store detective outside of the store. The store detective grabbed the walking stick causing Mr. Wearn to stumble. The store detective tried to get Mr. Wearn to return to the store with him. At this time Mr. Wearn admits to swearing at the store detective but reacted so due to his failure to handle stressful situations. When Mr.Wearn arrived at the store manager’s office, he was due to take his medication and was beginning to feel anxious that he would not be able to take his medication on time. Due to his level of stress, Mr. Wearn accepts that he did not react properly by swearing at the store detective. The Arrest: Mr. Wearn stated that the attending police officers treated him fairly and asked him if there was anything that he wanted to say to them. Mr. Wearn was so distressed that he was unable to tell the officers his name or address. The officer explained to Mr. Wearn that he (the officer) was going search him (Mr. Wearn), and disclosed to Mr. Wearn information regarding warrants and records. The police officer found correspondence with his name and address. The police asked Mr. Wearn to confirm the information and he did so. Mr. Wearn says that it is not true that he refused to give his name to the police officers. When the police officers took Mr. Wearn to the Hendon police department, he was suffering great distress. The officers proceeded to check the property found on him and record it. The police found Mr. Wearn’s medication and confiscated it. They said that he could not have it in the cell with him. This was extremely upsetting to Mr. Wearn and when he was asked if he wanted a solicitor he was so distressed and confused that he said no. Mr. Wearn’s main concern was leaving the station as soon as possible so that he could take his medication on time. The Interview: Mr. Wearn stated that since he was so upset about the possibility of not taking his medication on time, he is unable to remember most of the interview. Compliance with the directions given by magistrates’ courts Mr. Wearn was charged with one count of theft. It is alleged that he stole a walking stick (value pounds) from John Lewis on 8 December 2010. This matter is listed for a Plea and Case Management Hearing on 24 February 2011. Mr. Wearn’s first appearance was at Hendo Magistrate’s Court on 15 December 2010. The prosecution statements comprising the evidence in the case were served in that hearing and the schedule of non-sensitive unused material (MG6C) was subsequently served on 26 January 2010. At the hearing in the magistrate’s court on 15 December 2010, Mr. Wearn indicated an intention to plead not guilty; the magistrate’s court accepted jurisdiction and Mr. Wearn elected trial by jury. His case was committed to the Crown Court on 24 February 2011. Mr. Wearn has been on conditional bail throughout the proceedings. The standard/specific directions given by magistrates’ courts have been complied with (CrimPR 3.5(3)). Fitness to plead Instructing solicitors are satisfied that there are no issues surrounding Mr. Wearn’s fitness to plead. Defense statement (Criminal Procedure and Investigations Act 1996, Part 1; Criminal Procedure Rules, rule 22.4) Case details Name of defendant: Joseph Wearn Court: Harrow Crown Court Charge(s): Theft contrary to section 1(1) of the Theft Act of 1968. Part 1: Plea I confirm that I intend to plead not guilty to [all the charges] [the following charges] against me: Joseph Wearn Part 2: Nature of the defense The information given below is in compliance with section 6A of the Criminal Procedure and Investigations Act 1996: (a) Nature of your defense, including any particular defenses on which defense intends to rely: The defense intends to show that Mr. Wearn was not guilty of the theft of which he is charged. Mr. Wearn purchased the wrong item with cash and then promptly returned it to the store. Mr. Wearn showed due diligence in attempting to return the wrong item by repeatedly seeking out a store attendant. Due to Mr. Wearn’s medical condition, along with suffering from chronic lower back pain, it seems only logical for him to want to relieve the pain with a more appropriate walking stick. Being weary and in great pain, Mr. Wearn was compelled to take the second, more accommodating walking stick and return the first walking stick back to its former position and then proceed to his residence where he could rest and recover from the pain. Therefore, the defendant’s ignorance of the crime is such as to show that the mental condition required to constitute a crime was not present. Mr. Wearn believed the property taken to be his own property and cannot be convicted even though his belief that the property was his was due to ignorance of the law. There is no indication of evil intent on the behalf of the defendant and without evil intent, no crime has been committed. Additionally, since there was no legal advisor or appropriate adult present at the time of Mr. Wearn’s confession, all evidence should be dismissed. (b) The matters of fact on which defense takes issue with the prosecutor, and in respect of each the explanation why; 1. Mr. Wearn was interviewed without the accompaniment of an Instructing Solicitor. 2. Mr. Wearn was unlawfully deprived of medication that affects his quality of life and level of social functionability. 3. Mr. Wearn believed the property to be his regardless of his ignorance of the law. 4. Mr. Wearn showed no evil intent in the taking of the property. Therefore, no crime was committed. (c) Particulars of the matters of fact on which defense intends to rely for the purposes of defense; 1. Mr. Wearn was interviewed without the accompaniment of an Instructing Solicitor. Minimally, an Appropriate Adult should have been present at the interview due to his obvious agitated mental state. 2. Mr. Wearn’s liberty and happiness were unlawfully deprived when he was not allowed to take his medication on time. 3. In severe pain and after due diligence in seeking out a store attendant for help, Mr. Wearn replaced the first, unsuitable item with the second, satisfactorily item. Mr. Wearn did not think that this was unlawful as he believed the property to be his. 4. Mr. Wearn had no evil intentions when taking the second item. Therefore, there is no evidence of evil intent in taking the second item. (d) Point of law that defense wishs to take, including any point about the admissibility of evidence or about abuse of process, and any authority relied on; Defendant’s mental state: 1. In the majority of the witness statements, Mr. Wearn is said to be “crying.” His behavior and reaction to the accusation obviously upset him emotionally. Yet when the store detective, the store manager, and even the police officers who are supposed to be trained in recognizing such behavior, yet did not at anytime, stop to consider the implications of Mr.Wearn’s emotional state in reference to the proceedings. The inability to recognize that a person is obviously under emotional distress, in this case continual crying, resulted in a violation of the defendants right to an AA. Under PACE CODE C Annex E paragraph 11.17, an AA (Appropriate Adult) must be present the moment a vulnerable suspect is read his rights. The failure of the Benton police officers to provide an AA for Mr. Wearn during his questioning has resulted in the exclusion of all evidence against him. Defendant’s Confession: Although Mr. Wearn confessed to the theft, he did so out of distress and the desire to leave the police station so he could take his psychiatric medicine which would have induced a calm and more socially appropriate effect. Under PACE CODE section 76 (a), a confession must be excluded as evidence when it was: (a) obtained by oppression or (b) if by something said or done in the circumstances of the confession render it unreliable. Mr. Wearn’s confession was unreliable because his medicine which enables him to act appropriately, was confiscated by the police. This confiscation amounts to “oppression.” “Oppression” under Section 76 (2) (a) refers to the “exercise of authority or power in a burdensome, harsh or wrongful manner; unjust treatment of subjects, inferiors etc., or the unreasonable or unjust burdens.” In the case of R v Miller, it was determined that the mental health of the defendants will be relevant when considering oppression under Section76. In Miller, the court observed the effect of police interrogation on the defendant who was “borderline of mental handicap.” In a case similar to the case before us today, Ashley v Burns, the defense put forth that the lack of access to legal advice was a violation of PACE Section 58 (c: 11.2) and any confession to the crime should be removed from evidence. Signed: …………………………………………….. defendant / defendant’s solicitor Date: …………………………. Writer’s instructions to the student (Do NOT include this when you turn in your assignment! 1. Complete the Case details box above and Part 1 below. Then, 2. If you intend to plead ‘not guilty’, give the information listed in Part 2 below. You must give that information if your case will be tried in the Crown Court. If your case will be tried in a magistrates’ court, you do not have to give that information but you may do so. 3. Sign and date the completed form. 4. Send a copy of the completed form and the sheets attached to: (a) the court, and (b) the prosecutor not more than 14 days after initial prosecution disclosure (or notice from the prosecutor that there is no material to disclose). WARNING. Under section 11 of the Criminal Procedure and Investigations Act 1996, if you: (a) do not disclose what the Act requires; (b) do not give a defense statement within the time allowed; (c) at trial, rely on a defense, or facts, that you have not disclosed; or (d) at trial, call an alibi witness whom you have not identified in advance, then the court, the prosecutor or another defendant may comment on that, and the court may draw such inferences as it thinks proper in deciding whether you are guilty. Read More