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Abh Section 47 Charge

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Leigh76 | 11:53 Sat 14th Oct 2017 | Law
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I have recently been charged ABH section 47 due to an incident that happened whilst I was stuck in traffic traveling home, the driver of another vehicle attempted to force his way infront of me effectively setting his vehicle on a course even though it was clear I had no intention of letting him in causing a minor collision, I got out of my vehicle to remonstrate with him and after a short argument he told me "I don't have to listen to this ***" and started doing up his window and putting his van in gear. at that point I reached in and removed his keys, obviously annoyed he got out of his vehicle and approached me and grabbed at his keys with one hand and my clothes with the other, after a short back and forth argument (Him requesting his keys, me asking why he had hit car) his vehicle key came away from the bunch in his hand and dropped the rest of them, he then let go of my collar and I turned and walked to the front of my car to inspect for damage.
realising there was no real damage (minor scuff on wing mirror) I turned around to him approaching me and pointed and said "you're lucky mate" at which he grabs me again this time with both hands and demands his keys back, I say take your hands off me, he says give me my keys, I say you need to take your hands off of me, again he says give me my keys, I say you have your keys and he says no the rest, I say they are over there on the floor now take your f-ing hands off me. at this point he turns and looks, sees his keys and instead of letting me go he lets go with his right hand whilst tightening his grip with his left, I believe at this point his intention is to either hit me or he is reaching for something and felt threatened and the need to defend myself, so I hit him before he could hit me (3 punches to the face)
at this point he grabs back on with both hands and starts shoving me backwards so I grab onto him and start shoving him back towards a parked car, after a short scuffle in which he took a swing at me that I avoided, a M O P intervened and separated us at which point I returned to my vehicle, calling him an f-ing idiot and left.
I received a letter requesting an out of custody interview, which I attended and explained honestly exactly what happened (admitting that I had hit him but only because I felt threatened in an unfamiliar area, he wouldn't remove his hands from my person despite numerous requests and I believed his intention was to harm me)
I have now been charged and have a court date at Magistrates court.

I am looking for advise on how to deal with this situation from here and likely sentence if convicted
I have no previous convictions, I am 41 yo, and I am currently the only working member of my household as my partner was made redundant 3 weeks prior to going on maternity leave, our son is 5 month old (3 months at the time of the incident, obviously a very stressful time in my life) I am concerned that a community order will massively impact my earning potential as my basic salary is low and I depend on overtime to make ends meet (currently working 60/70hours a week)

any advise would be greatly appreciated as I cant afford to get a solicitor

Thanks

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plead guilty at the earliest opportunity
As said plead guilty at the first chance.
Sentencing guidelines here, scroll down to section 11
https://www.sentencingcouncil.org.uk/wp-content/uploads/Assault_definitive_guideline_-_Crown_Court.pdf
Sentence can be from a fine to 3 years in jail. Remember there is an automatic 1/3rd off any sentence for a guilty plea at the first opportunity. You need a solicitor on your case urgently.
what can a solicitor do eddie? by his own account he's guilty and can plead guilty without a solicitor
bednobs , The solicitor will be expert as to how to word his clients mitigation statement so as to get the best outcome and the lowest possible sentence . It will not cost anything if he uses the duty solicitor at the court where the case is being held. It is always better to use a solicitor even with a guilty plea. Remember the sentence range is a fine to 3 years in jail ( or 2 years in jail with a guilty plea.)
If it is a jail term the solicitor can try to get it suspended, which would be a lot harder to do alone.
Question Author
I find it hard to believe that it would be a custodial sentence for a 1st offence with no previous history of violence, no premeditation and what I believe was defending myself from an aggressor who refused to take their hands off of me, I believe it was self defense given the circumstances. But as I haven’t been in this situation before I don’t know how the court will see it.
//what can a solicitor do eddie? by his own account he's guilty and can plead guilty without a solicitor//

this is typical bad advice and as such you have to be careful of - and I just wish people wouldnt give advice like this - they wouldnt do it for themselves. Bad and free - well you get what you pay for - you have paid nothing so far and got bollux

You have effectively scrowed yourself by going without a solicitor and erm 'trying to tell the truth'. in the out of custody interview.

what do you do now? You hire someone who knows their way around criminal procedure and can mount an effective argument for mitigation once you have pleaded guilty. It will save in the long run - you have come to your cake and ha'penny quite late in this which is
to think "eek I have quite a lot to lose from this, how do I mitigate my losses ?"
Hire a lawyer is the answer
self defence is an option
however you have said you grabbed his keys
which is not very self-defencey ( and you didnt run back to your car)

this sort of thing should be discussed with a lawyer
Leigh this is NOT a straight forward case, there are a lot of aspects to be considered. You really DO need a solicitor to explain your case to the court. You will not have to pay for a solicitor, every court has a duty solicitor who will act for you free of charge. Phone the clerk to the court , the number will be on the letter, and ask to be put in touch with the duty solicitor . Do it first thing Monday morning. Just doing nothing could end up with you getting a prison term, it is NOT straight forward self defense. You really DO need a solicitor to prepare a statement of the mitigating circumstances .
Question Author
As I said in my interview I removed his keys as he appeared to be attempting to leave the scene of an accident without exchanging details and before I could access the damage caused, he put his vehicle in gear and started doing up the window.
// As I said in my interview I removed his keys//

and as I said - that is not very self defencey
running away or shouting "on your way my man!" - or "I dont want no trouble!" is more what I had in mind for self defence

but time ticks on and you need proper advice
and not "wossee want a lawyer for den?" comments
^ what PP means is that you started the argument by first refusing to let him in and then grabbing his keys.
Sorry, but self defense is NOT going to be accepted as mitigation.
It is VITAL that you get a lawyer to put your case. Just for a start this is an 'each way' offence, this means it can be magistrates or Crown court. A lawyer will try to get it kept at magistrates where the maximum possible sentence is 6 months. Go it alone and I can see the magistrates accepting your guilty plea ( which they have to do) but referring the case to Crown for sentence. Crown can sentence you to 3 years , before the 1/3rd reduction for a guilty plea.
A solicitor will also arrange for pre-sentence reports to help you stay out of jail.
You say you can't afford a solicitor! , the truth is you can't afford not to have one. As I said you are entitled to a free solicitor by using the duty solicitor service.
Question Author
I will be contacting the duty solicitor, thanks for that advise.
But saying I started the by argument by refusing to let him in is ridiculous, I had the right of way and was not attempting to filter into traffic after driving down a gap in parked vehicles,the Highway Code states you should wait for a clear and safe opportunity to make a manuever, not force your way in. I was under no obligation to allow him in front of me and if you think otherwise you are sadly mistaken.
Good ,the duty solicitor is in a far better position to help than we can on here. For a start he/she will be able to see all the evidence that the prosecution intend to use, you alone can not do that.
Best of luck in the hearing.
//what can a solicitor do eddie? by his own account he's guilty and can plead guilty without a solicitor//

“this is typical bad advice…”

There’s lots of bad advice here, Peter. In particular, among it is this:

“It will not cost anything if he uses the duty solicitor at the court where the case is being held.”

“You will not have to pay for a solicitor, every court has a duty solicitor who will act for you free of charge.”

“As I said you are entitled to a free solicitor by using the duty solicitor service.”

The duty solicitor is not available to represent a defendant at a sentencing hearing. The defendant will have to apply for Legal Aid and if he does not qualify he will have to pay for his own representation. The areas covered by the Duty Solicitor scheme have been considerably cut back and essentially they are now restricted to helping defendants only on their first appearance in court and only then when (a) they have not had the opportunity to apply for Legal Aid since being charged and (b) only if they are charged with an offence that can carry a custodial sentence.

“For a start he/she will be able to see all the evidence that the prosecution intend to use, you alone can not do that.”

Yes you can. In fact the prosecution has an obligation to serve you with that material before you enter your plea.

As for the offence itself, self-defence is not mitigation. If you intend to raise self-defence as a reason for the assault then you need to plead not guilty. As an aside, your description of events does not lend itself too readily towards self-defence:

“I got out of my vehicle to remonstrate with him”

So essentially you reacted to his alleged bad driving by physically confronting him – something you had no need to do.

“…and after a short argument he told me "I don't have to listen to this ***" and started doing up his window and putting his van in gear. at that point I reached in and removed his keys,”

He wanted to remove himself from the confrontation. You prevented him from doing so.

If you do decide to run self-defence you will face a trial and the court will decide if your action was necessary and reasonable. You will be acquitted if they agree and convicted if they do not. For this a solicitor would be highly recommended.

As far as sentencing goes my view is that, based on the description you gave, even at its highest this offence does not pass the custody threshold (and it certainly will not be sent to the Crown Court for either trial or sentence). The sentencing guidelines are here:

https://www.sentencingcouncil.org.uk/offences/item/assault-occasioning-actual-bodily-harm-racially-religiously-aggravated-abh/

You will see that for custody to be considered the offence must fall into Category 2 of seriousness. This means that either greater harm or higher culpability must be present. I cannot see either from your description (though possibly a “repeated assault on the same victim” could be construed). But even then custody is by no means a certainty.

I think the most important thing for you to realise at present is that the duty solicitor will do nothing more than the barest minimum for you at court and if a second hearing is necessary (almost a certainty) you will need to make other arrangements.
Thanks New Judge. The duty solicitor role has changed in the last 15 years since I needed to use it. But the important point is that he/she will represent Leigh76 at his initial hearing and it will not cost him anything.
I therefor modify my advice and say , Leigh76 get to the court early, ask for the duty solicitor and tell him are going to plead guilty but you need help and have not had a chance to get legal advice.
Question Author
Hi Judge, thanks for your reply but there are a few things I am unclear on namely

“So essentially you reacted to his alleged bad driving by physically confronting him – something you had no need to do.”

You say I had no need to do this yet how are you supposed to react if involved in a collision? Surely I need to speak to the other party involved, I made no physical contact with either him or his vehicle and merely ask him what was doing and why had he driven into my car, his reply being I was in front of you, to which I reply “well that’s not how it works is it, you are supposed to wait for it to clear before pulling out” at he replied with the I don’t need to listen to this *** statement and started putting his vehicle in gear.

Again you at that point you say “he was trying to leave the confrontation” but it is an offence to leave the scene of an accident without exchanging details, I was merely stopping him from leaving until damage could be accessed and details could exchanged if needed.

As I stated to the police in my interview I never physically touched that man until after he had placed his hands on me multiple times and I felt he was intent on harming me.

Obviously though I will now be seeking legal advice from a solicitor to determine the best course of action moving forward as I fear any form of conviction could potentially result in the loss of my job due to regular CRB checks taken by my employer.
“You say I had no need to do this yet how are you supposed to react if involved in a collision? ”

You said you left your vehicle to remonstrate with him. Remonstrate means to confront or protest. If you go to court and say that this confrontation resulted in you having to use “self defence” to excuse your assault you may find it is not well received.

“…but it is an offence to leave the scene of an accident without exchanging details,”

Indeed it is. But you are not entitled to use physical force to prevent that offence taking place. Presumably you could easily read the registration mark of the other vehicle and your proper course of action would be to record that and report the matter to the police.

“As I stated to the police in my interview I never physically touched that man until after he had placed his hands on me multiple times and I felt he was intent on harming me.”

But you took his keys from him and prevented him leaving the scene of a confrontation where (he might say) he felt threatened. Of course we only have your version of events to go on. But even with only that, I suggest that a court may well view your “self-defence” contention with some suspicion. You left your vehicle to “remonstrate” with the other driver; you took his keys from his vehicle to prevent him leaving the scene (when he was clearly prepared to do so, thus avoiding any physical contact whatsoever). If somebody had taken your car keys I’m sure you would have made an effort to retrieve them with the inevitable physical argy-bargy that would ensue. The court may well determine that the reason that such physical contact followed was because you initiated it by taking the keys. You had other options apart from taking the keys and those options would have avoided the physical assault that ensued.

By all means discuss this with a solicitor. When he probes beyond the basic details you have provided here he will be in a far better position to advise you than anybody here. But you may be surprised when he advises you of the best course of action.
Eddie, // The duty solicitor role has changed in the last 15 years since I needed to use it. //

Curious.
What's curious, naomi, that the duty solicitor role has changed or that Eddie needed to use it?
That Eddie had cause to use it.

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