Advice re criminal sentencing & working for NHS

[TryingAgain]

Good Morning

Well ladies, I have had the worse two weeks of my life.

I moved house in August last year and in the last couple of months I have had loads of work done, front garden dug off and block paved, new kitchen, lot of building work downstairs. My next door neighbour (not the one I am attached to) has moaned throughout. He has knocked my door at various times moaning about the builders noise, moaning about dust in the air, moaning about when we were having the skip removed (from my own drive!) and his latest is that some random dog has pooed on his grass and it is my fault because I have had my drive block paved so I must pay to have his front garden fenced off! the last two times he came round he was horrible, screaming and shouting and my DH sent him off with a flea in his ear.

it all came to a head last weekened when we had the BBQ on, he came up to the fence moaning about that and was screaming and shouting again, to cut a long story short my husband had had a bit to drink and ended up going over the fence and punching him. They had a massive row, neighbour is asian, and DH called him a 'p'. Can't believe it.

So now DH has been charged with section 39 Racially Aggravated Assault. Which sounds ridiculous considering my neighbour wasn't even injured but the police said he had a cut lip and that is the lowest assault charge you can have. As it is his first conviction they expect a fine or even community service, but I am worried sick because I have read you can get 2 years in prison for this.

Is anybody on here a lawyer, or barrister, or event have first hand experience of this could give me an idea of what type of sentence he could be looking at? will we get a chance to put the mitigating circumstances to the magistraite?

Also my husband works for the NHS as an ultra sound assistant, obvio0usly he is going to have to tell work because they will find our with his next CRB check, does this mean he will automatically lose his job? do they have the right to sack him over this?

Any advice would be appreciated, I know my DH is in the wrong here, I wish it had never happened, but it has and I need to know what we are looking at and what impact it will have upon his career.

Sorry for the long 'woe is me' post, any words of advice, as always, would be appreciated x x

[Kasha]

Hi hun absolutely no advice i'm afraid, other than to say, yes, your hubby must tell work, because they do regular crbs and he'll get into trouble if he doesn't declare it. It's unlikely he'll lose his job over it, but tell him to speak to the union first about how to go about it and what to say.

Just wanted to say, racially aggrevated assault? What a pile of crap.
The law in this country is an ass. It is not racially aggrevated assault, it is idiot aggrevated assault, but unfortunately the law will always come down on the side of the *poor* ethnic minority and claim it was racially driven when in fact race had nothing to do with it. But how do you prove that? I am sure we would rub along quite well regardless of race, age, gender etc etc if it wasn't for the *pc*brigade interfering and everyone actually was treated equally.
I hate this country.

I hope he gets it sorted out soon. What a worry.

[ruthb2008]

Oh dear - my aunty had police knocking on her door accusing her of being racist because the asian children next door repeatedly kicked their ball into her garden and she told them if they did it again that she would keep the ball!! She was made to write a letter of apology!! It really is crazy isn't it?! I find it insane that in any kind of incident like that, if one of the people involved is of ethnic minority it automatically becomes racially aggrevated! If your neighbour had been the aggressor and he had punched your husband, would it have been called a racially aggrevated assault?! Doubt it! (Hope I don't offend anyone with that statement - none is intended!!)

I'm sure that he wouldnt be looking at any kind of jail sentence, usually if its a first offence it will be more of a slap on the wrist, especially if the only consequence was a cut lip!! Although your neighbour really seems like the type that would want his pound of flesh!! Perhaps once its over if he continues as he was, you could speak to the police about his harassment - I mean, what kind of a person would complain about you having a BBQ? Youre on your own property, and what you do should not concern him. I could understand if it was 3am and you were being noisy and unruly but as that was not the case what on earth is his problem?! He sounds like a nut job!!

Anyway, sorry for the essay, long story short I'm certain the most he will get is a fine and/or a bit of community service.

Ruth xx

[Hols969]

OMG poor you. I know sometimes when you are cross you say things that you wouldnt dream of saying normally like the p word. I have no advice, Im sorry but your bl**dy neighbours sound like a nightmare and has been building to that point by the sounds of it (surprised you didnt bash him earlier) .... Does anyone else have an issue with this particular one, e.g like complaining the whole time etc and generally making life unpleasant?

I think it would be pretty harsh to have a prison sentence but agree that he should tell work just to be on the safe side. The world has gone mad (we are looking into fostering and it is so 'pc' it is just ridiculous). I know its easier said than done but I think it will be a slap on the wrist (if it isnt I would be bl**dy furious as it would be so unfair).

Have you spoken to the citizens advise as they would be able to help you and hopefully put your mind at ease?

[TryingAgain]

I feel a little better after taking a bit of advice.

A friend of mine is a Barrister and said the very worse he could get would be 2 years in prison, but that is highly unlikely given 1st offence and the circumstances surrounding it.

He reckons a fine and or community service order. But we will have to wait and find out.

Also spoken to an old school friend of mine who is a recruitment manager within the NHS. She said he won't lose his job, she said that if they didn't employ people just because they had an entry on a CRB then there would be nobody in healthcare! She said as long as you are honest about it and explain the circumstances and the nature of the offence doesn't make you a risk by doing your job then you can carry on. She said people only lose their jobs if they fail to disclose something. She said she sees about 40 CRBs a day and it is rare she sees one with nothing on it.

She said the next time he has to fill in a CRB form, just make sure he declares it and explain this was basically just a heated arguement with a neighbour then it wont effect his work. Relieved about work.

Will still worry about court case until it is over with.

A few neighbours have told me that is a bit of a loon, having my garden fenced off with six foot fence all along in the next couple of weeks so I won't have to look at him.

I have never felt to stressed in my life, I will keep you posted x

[shaz87]

Gosh I didn't still think we would be in the day and age where things like this can get out of hand. Ur neighbour does seem a bit ott, actually a lot ott as it seems he was almost picking a fight. I had a lot of trouble with my next door neighbour, they wer saying that we were making loads of noise blah blah so the council said that they might.monitor noise. Well the case was dropped as no evidence was found. Surprise surprise this was due to the fact that we actually never make any noise as we were hardly at home . The next door tried his best to pick a fight but we chose to ignore it. It us disgusting how sum ppl can't get on with one another, I'm an Asian and Yeh I have received a lot of racial abuse but I think its best to rise above it. Yeh ur hubby should not have called him that name as just because his skin colour is different that does not make him less human plus working in the nhs I'm sure there are other asians that be there and I'm sure they pee him off but he does not call them the p word. I'm not taking sides please don't be offended as I firmly believe that ur neighbour was waiting for something like this to happen. I mean if he is aggressive then I would get the council involved as sometimes they can help to resolve cases like this. Just wanna say that not every asian, Christian, Jew or Hindu is the same. It just depends on the individual and I feel that religion is always dragged into it. Anyways I hope that things get resolved and that ur other half does not get a two year sentence. Seems a bit extreme really. Gud luck hun.

[MsMara]

Racially aggravated! Um, why exactly? I'm sorry but if he had called ur hubby a derrogatory word for a white person would he have had the same charge?

No advice really, but I do feel for you. Can't you appeal that it wasn't racial it was because he's a moron?

I'm mixed race & got shouted at by the police for saying to my little brother (who's black) "oh you gert ape" - racially motivated?! Me & my little bro were gob smacked (especially as I'm pretty potty mouthed anyway when I'm annoyed) but this was just a joke!! Sometimes they take things waaaay too seriously.

[Trying]

Hi Hun,

I used to work for the CPS (Prosecution) until about 18 mnths ago - not as lawyer, and I haven't worked on casework for even longer. However my last post I set-up a panel to review old racial, homo & transphobic, and disability cases. The racial element of the charge does call for sentencing to be higher in such cases, but if the case stays in Magistrates Court (if your husband pleads guilty), they have a maximum sentencing power of 6 months on one offence. So an early guilty plea would reduce 1) likelihood of max sentencing and 2) case being sent to Crown Court for a Judge to sentence. Mags court are lot more in favour of "community sentencing" so fines, compensation, or suspended sentences so I'd say having a clean sheet a prison sentence would be really really really unfortunate!
Have you got a defence solicitor? It may be worth getting one, if you wanted to fight the racial element. Can try via CAB to help you with legal aid etc..

Were there any independent witnesses to the assault and the words? If there weren't it would be hard to prove that it was racially provoked, and the charge could be reduced.

Also re mitigating (the racial part & assault) Mag's Court normally prefer a sob story rather than "my neighbour's a git and had it coming!". As although he is making your life hard it's hard for you guys to prove it and the law courts are all about the evidence.

Can I just add though also I feel for you guys I don't one bit agree that calling someone a Paki and hitting them shouldn't be charged with racial assault, because there is a whole bundle of abusive words you can use to describe a person even in the heat of the moment. Sorry, don't mean to upset, but just feel strongly about it from being bullied as a child with that word and also obviously my old job too. Also I think Political Correctness is a good thing when it comes to Race and Ethincity, Gender, Sexual Orientation and Disabilities - because ultimately it comes down to respecting other people and degoratory terms are not on!

If this neighbour is being a royal pain in the arse and you think he's going to carry on, what I would recommend you do is keep a diary of it all, so if things get heated again and the police call round you have a nice log of what HE is putting you through. Make sure to document any kind of feelings of anxiety etc.. that his actions make him feel, then they will hopefully look at it as a civil dispute and hopefully suggest things are delat with that way (obviously assuming noone is hitting anyone else!). Also perhaps if you have video on your phone film him when bangs on your door etc you might find it calms him down and also scares him out of pestering you so much etc..

[TryingAgain]

Thankyou everybody for advice/ comfort.

Trying- I completely agree with you, I do not condone for one minute the word my husband used, but I know him, I know my neighbour, I know that it was just used in the heat of the argument when both of them were having an out and out slanging match. This is not a race issue whatsoever, what we should have done is call the police the first time he came to us, but we didn't, we have allowed him to wind us up, and this is the outcome.

I would like to ask you a couple more questions if you don't mind as you may know the answers.

Will the Mags read the police statements of all parties? or just a short report from the CPS, I am conscious that all my family statements are the truth but he has made it a million times worse then it actually was.

If my husband pleads guilty, what is he pleading guilty too? because he admits what happened but my neighbour has said loads of stuff that isn't true, he said that my husband totally battered him when he just threw one punch, the only injury is a cut lip. So is my husband admitting that it happened as per neighbours account?

Also neighbour told the police that my dad and brother did the same thing and they were arrested too, they didn't, they split it up, and they have been released without charge. Will the Mags know that he made false allegations against my dad and brother too?

Also, will my neighbour be told about the court hearing, I just imagine him being there and it being even more upsetting for us.

This happened 2 weeks ago, we don't have to go back to the police station for the formal charge until 27th May and then told another week until Mags Court so this is hanging over us and making us all ill. Do you think that it is likely that the Mags will deal with it on the day? I am having nightmares that we go and they send it to Crown Court for sentencing, I think I will have a nervous breakdown if they do that, I can't take it hanging over us for another couple of months. I am just praying that on the day they give a light sentence. Do you think that we could go to mags on the day and they could send him to prison?

This i really making my husband ill he can't eat and sleep, this 'assault' has had far more of an impact on our lives than on our neighbours, I may try and get signed off work until it is over as I cannot concentrate and I am making mistakes.

Any further advice, words of wisdom, always appreciated x x x

[CysterSister90]

I've just been asking my mum over this (she used to work in court) and apparently because he hasnt been formally charged it could still be dropped, but it wont be dropped til the 27th at the earliest especially as it reads that the neighbour has been lying its a 6 of one half a dozen of the other kind of thing, so that would be the best outcome but if it definitely goes to court the judge reserves the right to send it to crown court if need be.

Keeping my fingers crossed for you both and good luck

Liz xxx

[Trying]

Bless you hun, I agree the circumstances around it are so frustrating & by all means from what you've said it seems like the git really deserved it (the punch that is!). Don't get me wrong I'm on your side, but also feel that based on the facts of the word used and the action a lawyer & police officer would HAVE to charge it as racial - which is unfair, honestly not judging your husband etc, it is really an unfortunate situation because if he hadn't been wound up by the "vicitim" then he probably wouldn't have used the word. But it's hard to prove that the intent wasn't there because of the choice of words.

I'll try reassure you as much as I can that the majority of these cases stay in the Mags Court, it's only the serious cases that end up in Crown Ct. However because of the racial element it does make it what is called an either way offence, which means it could go to Crown Court - but usually this would be in more serious cases where there are a list of offences to join it as a Magistrate would have sufficient poweers to sentence them all appropriately.

Right I'll try get the questions answered for you:

Will the Mags read the police statements of all parties? - Probably not on the first court hearing. The first court hearing is usually a very quick one (5mins) to work out what will be happening with the case. The CPS lawyer will summarise the case from the police summary and statements (the statements will only be the ones considered as evidence, there may be other statements which are considered unused which the CPS lawyer won't have - these could include the ones from your friends any family - basically anyone that didn't witness anything of significance to the event).

If he pleads guilty he pleads to whatever the charge states which will be the racial aggravated assault of Xxxx on such and such date. Obviously the neighbour will have put in his statement a lot of padding etc.. but it's more a case of the event rather than the history leading up to it that he is pleading to. So it's the charge he's pleading to.

Yes your neighbour will be told that 1) your husband has been charged and 2) when the court hearing will be and 3) the outcome of the hearing.

The false accusations are probably unlikley to make it to court if it has not been detailed in a statement by police officers or other people.

Your neighbour and any other members of the public are allowed to attend Court Hearings in the public gallery, if you are intending to go you can turn up at Court and look at the list to see which Court room it's on and an Usher will call the case on (this will be your husbands name).

If your husband has not been formally charged I would consider getting a defence solicitor before the charge is laid, also as there has not been a formal charge I get the feelign that the case has not gone to a CPS lawyer to decide the charge yet, it may be that they decide that there is not enough evidence to support the racial element. Basically racial cases must be referred to the CPS for this charge to be determined in case the police over or undercharge it. As this is the first instance of a dispute between you two it might go in your favour and seen as a neighbour dispute gotten out of hand and hope that the racial element is taken out. If this does happen then the case will definately stay in mags as common assault is a charge that cannot be referred to the Crown Court and just to try reassure you again I'm pretty 99% sure that this one offence on it's own would not be referred to the Crown Court for sentencing - as it's not serious enough. The only way I can see if it went to Crown Court would be if your husband pleaded guilty and you felt the sentence was too high and appealled it. The sentence could be appealled at Crown Court .

If you accept the charge, but not elements around it (i.e that it was racial, or that perhaps that it was self defence etc..) then the case can go to what is called a Newton Hearing, which is basically a trial where the facts of the case are argued where the defendant admits the offence, but not elements around it. - This would obviously drag it out longer.

It is possible that it could all be dealt with on the first hearing if your husband accepts the and the Magistrates feels they have enough information before them to sentence then and there - they could adjorn off for a while to read through information etc.

Hun - I can tell by how you are (or are not as it is) handling this shows that it's really unfair for your husband to be "in the system" one of the reasons I left my job was after 10years getting sick of seeing the same names go round and round, playing the system, getting defence solicitors for free and basically wasting public money on them when they get off with fines and community sentences etc.. These are people with long criminal backgrounds and they are in and out of court e every other month! So I really think that your husband's previous good background would go in his fav our and really don't think this will end in a prison sentence. And the Mags Court would be keen to get it all done and dusted in one day.

Hope this gives you a bit of background to the system - it's one of those things which most people are clueless on untill something like this happens. Please try get it out of your mind, hopefully be all out of the way by June x x

[TryingAgain]

Thanks again Trying.

The police did tell me that they were going to charge him, so I fully expect that to happen when he goes back to the police station.

Though I have spoken to a different solicitor today and he said although he admitted the assault and using that word he shouldn't plead guilty to it being racially aggravated because you are saying you commited the crime because of his race. He admits assault and is prepared to take what he gets, but he didn't do it because he is indian, he did it because he insulted me and my family. He said he should plead not guilty and then it would go to a trial still in the Mags within about 6 weeks. We don't want to put all of my family through this but if it means he doesn't have the racially aggravated bit on his record it would be worth it.

Is there any bargaining on the day at the Mags? can you just say you are guilty if they drop the racial element?? x x

[Trying]

There shouldn't be any plea bargaining in the UK (technically) and also if the CPS and the Police have agreed to charge it as racial they shouldn't drop it if they feel that they could get a conviction on the racial element. -
Does that make sense? - However I'm sure it does happen to some degree.

What they should do is decide before the 27th whether it should be racial or just a standard common assault. And either charge should be laid. Some lawyers "double charge" and lay an alternative charge (non-racial) becuase if your husband is willing to plea to the non-racial one it means the case can still go ahead - if they only lay the one then and you plead not guilty then it's trial only which means they risk losing the case entirely.

I'll keep stressing that it's really best to see if you can get legal aid and instruct a defence solicitor as it's much easier for them to talk it out as they all speak the language and pretty much know each other. With all due respect when people represent themselves in court it is a bit of a train wreck because they aren't familiar with the system etc.. - not saying I think it's right, but just think that it's easier for you all.

Going to trial can be very stressful and the CPS/Courts/Police do aim not to avoid stress to both parties. The time it takes to get to trial really does depend on 1) CPS readiness - although they are bound by tight deadlines, 2) Defence readiness and 3) Court avaliability and 4) Witness avaliability. They are always prone to delays for some reason or another and can drag it out for months and months.

Just a warning that the CPS have policies on Racial cases - which is why my old job was to look at these ones with a panel of independent people to see if our lawyers were apply that policy correctly. Basically the policy is there to ensure that these cases aren't brought down to the lower charges if there is a chance of a convicition - don't want to scare you with that info, just so you are aware that may be a reason why they stick to it.

[TryingAgain]

Hello all, thought I would update you

Well we have got a Solicitor on board and they are going with my husband next Friday when he goes to the police station.

The police officer involved called me this morning to say that no further action being taken against my Dad and Brother and their bail conditions are cancelled as of today.

She said that when he goes to the police station next week she will ask the Custody Sergant to give a caution in the circumstances rather than send him to Court, she said she doesn't want to get my hopes up and she cannot offer any guarantees but whilst the CPS have decided to charge she said it appears black and white on papers but that she knows it isn't, this was a 2 way thing, and she is going to vouch for him on the day. She understands that my husband is no way racist. So all I am going to do is pray every day until Friday that when it comes to it they just give him a caution and we can put this whole mess behind us.

Trying- if you don't mind me asking how likely do you think this is? where the CPS make a decision to charge but the police decide to give a caution?

The policer officer said it goes in our favour that he is of good character and history and his job, that we have fully co-operated with the police throughout and that she knows my neighbour has lied because his 'injuries' are clearly not consistant with his allegations. She said she can see us for what kind of people we are and clearly see the situation and the build up to it.

If he does get a caution I am sure he won't lose his job over it.

I asked my neighbour whether he minded me replacing the fence with 6 foot high all along and he said that was fine, so I have ordered that (£350!!) and that is coming next weekend, husband is going to have a day off work and do it when our neighbour is at work so that there cannot be any communication or confrontation whilst he is doing it. I have also told the police that he has consented to us having the fence replaced and they have that on record. I can't wait until that is up as I haven't been out in my garden since this happened, I just don't want to see my neighbour and when this is up I won't have to and we can enjoy our garden in private.

As always, interested in what you ladies think, will keep you posted x x x

[Trying]

Hi Hun,

This sounds good, but is a bit dependent on your Police Force really, but like you've rightly said please don't your hopes up too much x
It all depends on whether the Custody Sgt is prepared to do things properly. Officially if the CPS has said charge it as Racial then it should be, if the Custody officer wants to caution it is his decision, but if your neighbour complained about the outcome etc.. it would be on the Custody Sgts shoulders for not treating a racial case with the seriousness it should be.

Basically - without trying to be too rude about the police officer in the case, a lot of the front line police officers aren't aware of actual laws and prosecution policies (they have a lot of training to go through so it is understandable that they don't know everything).
Basically the police should refer all but minor cases to the CPS to decide the charge and if the CPS say charge X Y Z then they are obligated to charge X Y Z. - this process came into effect in the last few years - not all police were happy about it some are arguing to change it back and as CPS and police are 2 seperate organisations you often get disagreement.
If the police officer disagrees with the charging decision then she should be referring it up the ranks as part of the dispute process. I have to say (again I'm sure she is lovely), but a lot of front line police officers do make hints & promises of things they can't deliver - telling you how they would charge and sometimes telling witnesses if they give a statement they won't have to go to court etc.. When they aren't actually able to guarantee it because the decision is made elsewhere. - Sorry this was a real problem I came up continuously in my old job and it used to really annoy me!
There is a loophole that the police retain the right to caution people, but what they should have done is not report/record the case as a racial one if they didn't think it was one then it would not have had to been referred to CPS for charge. Sorry I sound like I'm being protective over the CPS, but I get really fed up with this style of "arse-covering" policing!! It's not fair on you lot, it's not fair on your neighbour and it could have all been dealt with a lot sooner if the police officer stood by the thoughts they are sharing with you by not telling your neighbour they were treating it as a racial attack etc..

I hope it does happen for your sake, (and trust me it does happen a lot anyway), it will be what is considered internally as a breached charing decision, which shouldn't have effect on you guys, but it is this type of case which local organisations who try to represent miniority groups would jump on - again not your problem! So fingers crossed the police do it!