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Should I Appeal 2Yr Conditional Discharge For Common Assault ?
17 Answers
Hi there, i just got 2 year conditional discharge for common assault. plus a £415.00 fine. At magistrate court.
Reason given by 3 judges is that me and my wife have called the police before, and i threw eggs out, and tried to break a cooking pan in the back garden. What the magistrates seem to forget is that we called the police once over an argument and i was released after interview, because my wife threw a plastic bottle to me and i just threw it back. Then i once called the police because my wife was suicidal, and i had to hold my wife and i was never even questioned why i held her.
the reason i threw eggs out is that my wife was verbally abusing me and i warned her, but she wouldn't listen, i then went on to break a pan in garden because she still wouldn't listen to me.
my wife started throwing pans at me so i came back to the rear door and held her then put her arm in water, telling her to calm down. she wouldn't calm down so i let go and we tried calling a neighbor to see if she could calm the situation down....
this lady we called caused more trouble and called the police. She even attacked me and made my wife more hysterical than she already was.
i didn't have a solicitor before because i only earn £1200 p/month and didn't get to apply for legal aid nor did i know if i would get it.
I even had to stay away from home for 2 months. I had to take my dad with me, as i am his carer. On top of that i had to stay away from my wife and baby of 7 months.
My wife never made a statement - she never came to court, she has never wanted to press charges and told cps this, yet i still been charged ?
I havnt been in trouble since 1995 ! i even got a degree, plus this charge will not help me if i look for a job !
should i appeal this decision....i got 2 days to give a response for appeal....
Reason given by 3 judges is that me and my wife have called the police before, and i threw eggs out, and tried to break a cooking pan in the back garden. What the magistrates seem to forget is that we called the police once over an argument and i was released after interview, because my wife threw a plastic bottle to me and i just threw it back. Then i once called the police because my wife was suicidal, and i had to hold my wife and i was never even questioned why i held her.
the reason i threw eggs out is that my wife was verbally abusing me and i warned her, but she wouldn't listen, i then went on to break a pan in garden because she still wouldn't listen to me.
my wife started throwing pans at me so i came back to the rear door and held her then put her arm in water, telling her to calm down. she wouldn't calm down so i let go and we tried calling a neighbor to see if she could calm the situation down....
this lady we called caused more trouble and called the police. She even attacked me and made my wife more hysterical than she already was.
i didn't have a solicitor before because i only earn £1200 p/month and didn't get to apply for legal aid nor did i know if i would get it.
I even had to stay away from home for 2 months. I had to take my dad with me, as i am his carer. On top of that i had to stay away from my wife and baby of 7 months.
My wife never made a statement - she never came to court, she has never wanted to press charges and told cps this, yet i still been charged ?
I havnt been in trouble since 1995 ! i even got a degree, plus this charge will not help me if i look for a job !
should i appeal this decision....i got 2 days to give a response for appeal....
Answers
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the 'lady' i mentioned earlier did make a statement that i attacked her, and i was looking at 2 charges of assault, but the lady dropped her charges. However what i mentioned in my interview must have made police believe i assaulted my wife, but i was just trying to calm her down, and i did mention that....?? i don't get it ... ?
No dude, no solicitor yet...before my court date, I told one solicitor i'm skint and they said i couldn't apply for legal aid because i got property on rent. Another solicitor sent some forms out to me but didn't send the extra forms to me, and before i could get the right paperwork, my court date was due.....i'm not sure if i'd get legal aid (or hardship ?), but i need to find someone to help me ?
By 'no' I mean the sentence itself seems unappealable; you could hardly get a lesser sentence, and it seems entirely appropriate.
As to the conviction, you seem to saying that you only acted reasonably to stop yourself being assaulted; self-defence; and you did no more than was necessary. Putting her arm in water sounds a bit odd, but if that seemed a reasonable thing to do, when under attack, the court may say that it was justified. It hardly amounts to an assault worthy of prosecution in any case. If that is all that happened, and I suspect that the prosecution version was rather different, appeal against the conviction
As to the conviction, you seem to saying that you only acted reasonably to stop yourself being assaulted; self-defence; and you did no more than was necessary. Putting her arm in water sounds a bit odd, but if that seemed a reasonable thing to do, when under attack, the court may say that it was justified. It hardly amounts to an assault worthy of prosecution in any case. If that is all that happened, and I suspect that the prosecution version was rather different, appeal against the conviction
Just to add a little to Fred’s excellent responses, you started by asking “Should I Appeal 2Yr Conditional Discharge For Common Assault ?”
This seemed to suggest that it was the sentence (the two year conditional discharge) which you were seeking to appeal against. However, reading on, it seems it was your conviction (that is, the guilty verdict) which you are looking to appeal and that you seem to suggest you are claiming self-defence.
It is always difficult to comment on a verdict when we have only a few lines to describe the inciden. However, looking at some of those few lines:
“i then went on to break a pan in garden because she still wouldn't listen to me.
my wife started throwing pans at me so i came back to the rear door and held her then put her arm in water, telling her to calm down.”
It suggests that you had an alternative to dealing physically with your wife. You came back to the rear door and this suggests that you were not in any immediate danger which meant you needed to physically defend yourself. You could have simply walked away. It is that which probably swayed the Magistrates’ decision, but as I said, it is difficult to tell from a brief description.
As far as Legal Aid is concerned if you and your partner (if appropriate) have a gross annual income of less than £12,475 you qualify for Legal Aid. If your income is between £12,475 and £22,325 you may get some help and above that level no help is provided.
The £415 you were told to pay was almost certainly not a fine but a contribution towards prosecution costs (you do not get a fine and a Conditional Discharge for one offence). The costs are high because you pleaded not guilty and the matter had to be prepared for trial.
From the very brief description you gave I do not believe an appeal against either conviction or sentence stands any chance of success.
This seemed to suggest that it was the sentence (the two year conditional discharge) which you were seeking to appeal against. However, reading on, it seems it was your conviction (that is, the guilty verdict) which you are looking to appeal and that you seem to suggest you are claiming self-defence.
It is always difficult to comment on a verdict when we have only a few lines to describe the inciden. However, looking at some of those few lines:
“i then went on to break a pan in garden because she still wouldn't listen to me.
my wife started throwing pans at me so i came back to the rear door and held her then put her arm in water, telling her to calm down.”
It suggests that you had an alternative to dealing physically with your wife. You came back to the rear door and this suggests that you were not in any immediate danger which meant you needed to physically defend yourself. You could have simply walked away. It is that which probably swayed the Magistrates’ decision, but as I said, it is difficult to tell from a brief description.
As far as Legal Aid is concerned if you and your partner (if appropriate) have a gross annual income of less than £12,475 you qualify for Legal Aid. If your income is between £12,475 and £22,325 you may get some help and above that level no help is provided.
The £415 you were told to pay was almost certainly not a fine but a contribution towards prosecution costs (you do not get a fine and a Conditional Discharge for one offence). The costs are high because you pleaded not guilty and the matter had to be prepared for trial.
From the very brief description you gave I do not believe an appeal against either conviction or sentence stands any chance of success.
Thanks Fred and New Judge for your replies.
When i was approaching my wife, (the first pan she had thrown had broken on impact) she had more pans in her hand, and i feared the next one would hit me as the previous one had come my way. She was standing in the door, where the garden starts and our extension finished. I couldnt have walked around her. If i pushed her, she would have hurt herself on the floor. I grabbed her. There was a large tub of water right by the door, and it was a hot day so i was gonna put her bum in the tub, but her hand went in...thats it. It was only to calm her down. I was constantly saying calm down. I feared the police would think different in interview, so i mentioned i could have dipped her head in the water or, just splash water on her face, but my wife is too strong so i just let go. I believe water can refresh the mind or get it out of the state its in...thats all.
I recieved an email stating i could cancel the appeal at anytime, and that if i could not represent myself, the judge would assist if able to..
I could apply for legal aid if my income is seen as shared income with my wife. I may even just be allowed some help as New Judge mentions.
I'm slighly un-certain, becasue Fred suggested i should appeal against the decision, and New Judge says he does not believe an appeal against either conviction or sentence stands any chance of success.
The thing that baffles me, is that it was a tit-for-tat argument, i believe it was a petty argument, where i acted in self defence, to defelect the argument and calm it down, and the judge on prosecution only sentenced me as a deterrent not to argue again, and that police had been called before...i found that a bit odd but had to take it. I was also allowed back home so was happy but upset on conviction at the same time. !!!!!????
When i was approaching my wife, (the first pan she had thrown had broken on impact) she had more pans in her hand, and i feared the next one would hit me as the previous one had come my way. She was standing in the door, where the garden starts and our extension finished. I couldnt have walked around her. If i pushed her, she would have hurt herself on the floor. I grabbed her. There was a large tub of water right by the door, and it was a hot day so i was gonna put her bum in the tub, but her hand went in...thats it. It was only to calm her down. I was constantly saying calm down. I feared the police would think different in interview, so i mentioned i could have dipped her head in the water or, just splash water on her face, but my wife is too strong so i just let go. I believe water can refresh the mind or get it out of the state its in...thats all.
I recieved an email stating i could cancel the appeal at anytime, and that if i could not represent myself, the judge would assist if able to..
I could apply for legal aid if my income is seen as shared income with my wife. I may even just be allowed some help as New Judge mentions.
I'm slighly un-certain, becasue Fred suggested i should appeal against the decision, and New Judge says he does not believe an appeal against either conviction or sentence stands any chance of success.
The thing that baffles me, is that it was a tit-for-tat argument, i believe it was a petty argument, where i acted in self defence, to defelect the argument and calm it down, and the judge on prosecution only sentenced me as a deterrent not to argue again, and that police had been called before...i found that a bit odd but had to take it. I was also allowed back home so was happy but upset on conviction at the same time. !!!!!????
I'm afraid, builder, that the difference of opinion between Fred and me just goes to show the difficulty there is in deciding something like this based on very little detail. Either of us could be wrong (or right).
I'm not sure how much an unsuccessful appeal will cost you (which you will have to pay even if you are granted legal aid) but it will be in the hundreds. If you can it might be wise to seek a solicitor's opinion. Many of them offer a consultation for a reasonable fee. You need to let someone see all the evidence against you and the Magistrates' reasons for convicting you.
I'm not sure how much an unsuccessful appeal will cost you (which you will have to pay even if you are granted legal aid) but it will be in the hundreds. If you can it might be wise to seek a solicitor's opinion. Many of them offer a consultation for a reasonable fee. You need to let someone see all the evidence against you and the Magistrates' reasons for convicting you.
New Judge and I see this from slightly different perspectives. I think an appeal is just runnable; if it had landed on my desk, I wouldn't have said absolutely not, going only on what you said, but you need a lawyer who can present the case a lot better than you ever can. For a start, he or she will do their best to avoid your doing damage to yourself in what you say, by giving the wrong impression, and by controlling prosecution witnesses .
New Judge looks at it from the magistrates' perspective and picks up what impression you must have given, that there was no risk of harm to you, and thus controlling the other person didn't really come in to it, because really you weren't under attack or fear of it. There is now no duty to run away or retreat, though not backing off or retreating some way might be evidence that the defendant was spoiling for trouble. And you can't be judged on what you do if it is instinctively done in good faith and seems necessary and reasonable in the circumstances of being under attack; it can still be part of self-defence.
What worries me is what this other woman saw. And you'll do well to explain to your lawyer what it was you intended to involving water; there seem to be three versions
New Judge looks at it from the magistrates' perspective and picks up what impression you must have given, that there was no risk of harm to you, and thus controlling the other person didn't really come in to it, because really you weren't under attack or fear of it. There is now no duty to run away or retreat, though not backing off or retreating some way might be evidence that the defendant was spoiling for trouble. And you can't be judged on what you do if it is instinctively done in good faith and seems necessary and reasonable in the circumstances of being under attack; it can still be part of self-defence.
What worries me is what this other woman saw. And you'll do well to explain to your lawyer what it was you intended to involving water; there seem to be three versions
Hi there
I am fearful of the additional costs, because i was due to pay £715.00 initially, but somehow the gave me a reduced fee of £415.00 to pay. I will ask about the fees if i lost.
I have found some differences in some statements from police officers at the scene, and the way i may have been presented in a bad light. Even the way some key questions were asked based on wrong assumptions. Even my interview summary was worded incorrectly a bit.
I have ROTI, but cannot access the DVD because the solicitor cannot find the paper which requests it ! I hope they don't want to see the DVD as the ROTI is all i am going by...
Also there were no witnesses between me and my wife. Its all from what i have said in interview, and i never intended to harm my wife, she was getting a bit erratic/snappy and i was just trying to calm her down. There was a risk of harm, and equally as much, I just didn't want all my pans broken. My wife even supports me 100% with this situation. She she knows i was just trying to calm her down. My wife is witness to another lady attacking me (when we called her for help/advice) but the other lady dropped charges, so hopefully she will stay out of the picture.
We're even going to try for marriage counseling and gym for my wife for her mild depression (still need to see the doctor about this).
Yes Fred, I will have to find a decent solicitor who will represent me so i don't do damage to myself in what i say, by giving the wrong impression, and by the controlling prosecution witnesses - actually despite what i said in court, the prosecution, kept trying to ask the same questions, so i know what Fred is saying there (plus it doesn't help when the person sitting next to the middle judge...possibly a judge too or judge assistant, is giving me evil looks ! - i was terrified !).
I still need to get the paperwork to see the magistrates reasons for convicting me. I will email them asap
I am getting a little confidence about going ahead with this appeal now, as before i was feeling hopeless, and let down !
Thanks guys...i cannot even pick a best answer (do i have to pick one ?), especially between Fred and New Judge...I like Fred's opinion slightly more because he says go with the appeal, but i respect New Judges views too. I just feel reassured about going ahead with this appeal, as it does feel a bit daunting ! I just want to get through this and win !
What a great website here !
Fingers crossed it all goes my way !
I am fearful of the additional costs, because i was due to pay £715.00 initially, but somehow the gave me a reduced fee of £415.00 to pay. I will ask about the fees if i lost.
I have found some differences in some statements from police officers at the scene, and the way i may have been presented in a bad light. Even the way some key questions were asked based on wrong assumptions. Even my interview summary was worded incorrectly a bit.
I have ROTI, but cannot access the DVD because the solicitor cannot find the paper which requests it ! I hope they don't want to see the DVD as the ROTI is all i am going by...
Also there were no witnesses between me and my wife. Its all from what i have said in interview, and i never intended to harm my wife, she was getting a bit erratic/snappy and i was just trying to calm her down. There was a risk of harm, and equally as much, I just didn't want all my pans broken. My wife even supports me 100% with this situation. She she knows i was just trying to calm her down. My wife is witness to another lady attacking me (when we called her for help/advice) but the other lady dropped charges, so hopefully she will stay out of the picture.
We're even going to try for marriage counseling and gym for my wife for her mild depression (still need to see the doctor about this).
Yes Fred, I will have to find a decent solicitor who will represent me so i don't do damage to myself in what i say, by giving the wrong impression, and by the controlling prosecution witnesses - actually despite what i said in court, the prosecution, kept trying to ask the same questions, so i know what Fred is saying there (plus it doesn't help when the person sitting next to the middle judge...possibly a judge too or judge assistant, is giving me evil looks ! - i was terrified !).
I still need to get the paperwork to see the magistrates reasons for convicting me. I will email them asap
I am getting a little confidence about going ahead with this appeal now, as before i was feeling hopeless, and let down !
Thanks guys...i cannot even pick a best answer (do i have to pick one ?), especially between Fred and New Judge...I like Fred's opinion slightly more because he says go with the appeal, but i respect New Judges views too. I just feel reassured about going ahead with this appeal, as it does feel a bit daunting ! I just want to get through this and win !
What a great website here !
Fingers crossed it all goes my way !
You have already been given superb advice but in my opinion you have come out of this with the absolute minimum you could expect by way of penalty.
I would say that if you do appeal there is at least an equal chance of getting a harsher penalty, an appeal can go both ways it is not just
'stay the same or get off' the court can say the penalty was too lenient and increase it.
By the way, it is normal for a domestic violence offence to be proceeded with even if the abused party withdraws their statement or refuses to make a statement. You have admitted 'grabbing ' your wife , that alone is proof of common assault.
I would say that if you do appeal there is at least an equal chance of getting a harsher penalty, an appeal can go both ways it is not just
'stay the same or get off' the court can say the penalty was too lenient and increase it.
By the way, it is normal for a domestic violence offence to be proceeded with even if the abused party withdraws their statement or refuses to make a statement. You have admitted 'grabbing ' your wife , that alone is proof of common assault.
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