My daughter has to appear in Oxford Magistrates Court this week against a charge that she attacked and scratched her husband on his arm when he forcibly took the keys of his vehicle from her. This is not true and my daughter told the police in a statement that she did not do it and had no knowledge of doing it.
She was trying to move his vehicle so that she could get to her car and get away from her husband who had too much to drink and wanted to protect her children by taking them away from him in case he did any harm to them.
The Custody Sergeant at the police station decided to send the case to CPS !! The husband has since withdrawn his statement but the CPS are still going to prosecute my daughter. Is there any way witnesses or statements from others can be introduced in a Magistrates Court to show that there has been a long history of drunkenness and verbal /domestic abuse from her husband. Unfortunately she never reported this to the police in the past because she wanted to try to save the marriage for the sake of the children.
Please can you advise and what else we can do to stop the CPS.
Also what cost is likely to employ the services of a barrister if it goes to Crown Court?
FYI, she has decided to apply for divorce proceedings as soon as possible.
Hello I am a lawyer with over 15 years experience. I will try to help you with this.
Oh Good...Thank you
Has you daughter been charged with a common assault (probably described on the charge sheet as by beating) or has she been charged with assault occasioning ABH?
Is this the 1st appearance coming up this week?
Oh...I am not sure about which offence, sorry. I think that it may be common assault but not sure
OK do you want to check or shall I answer on the basis that it is common assault?
I do not think that she has the charge sheet, possibly the solicitor representing her may have that but she was told that she would not be able to see or know what her husband's accusations were or his withdrawal statements is un til the hearing on Thursday this week at the Magistrates Court
Can you wait a minute so that I can telephone my daughter? I am in Staffordshire and she is in Oxfordshire
I have jsy spoken and it is assault occasioning ABH
OK thankyou, and is this the first appearance.
The importance of this is that not only is she concerned about the 2 children,but she is in a job where if there is a criminal conviction, she will lose her job.
Yes, this is the first appearance
We cannot understand why the CPS are still intent on pursueing the case when the husband has withdrawan his claim. But we do not know what he said
OK I will answer you this afternoon. I am in court at the moment and I will need to see my client and eat something over the lunch adjournment but I will get back to you as soon as I can. It will also take a little while to draft the answer.
She has been the victim for at least 3 years and although there was a period where he improved a year ago, he has since dropped back into his drinking and verbal abuse, even in fron t of the children
Ok, thank you
Your help in helping me to decide how best to help my daughter will be appreciated.
I do not know who her solicitor is but I jsy want to get the case dropped or cleared without conviction.
Just to let you know, I am still available if you need more information
I would also like to add that the husband put a photo on Facebook showing the scratch on his arm. I understand that someone left a comment to say that it looked as though a cat had scratched him. He has since removed the photo and comments from Facebook.
I would also add that no medical examination was made by the police at the time of arrest or photos taken by police.
The above is as far as we are aware but we think that the police may have taken one as my wife recalls that the police showed her a photo at the police station. He obviously has a photo as he put it on Facebook but we presume that was one he took.
Further, just to clarify, the scuffle in the car, when she was seated, her husband, who is over 6 feet tall and she is 5 feet 6 ins tall, pulled the cay keys put of her hand and the fob on the keys broke. She was left holding the fob and he went away with the keys. It is obviously possible that he scratched himself on the keys when pulling them from her. He is a carpenter and gets many scratches and wounds on him from his work.
Assault occasioning Actual Bodily Harm is an either way offence meaning that it can be tried in either the Magistrates Court or the Crown Court. At the first hearing your daughter (or her solicitor) will be served with the case papers and will indicate a not guilty plea. The court will then decide which court should hear the case. From your description it is likely that the magistrates will decide that it is suitable for them to deal with. Your daughter will then decide whether to agree to this or to insist on her right to jury trial before a Crown Court. This decision is one that needs to be take with care and after taking legal advice. The main advantages of Summary trial are usually thought to be speed of resolution and lack of formality. The main benefit of a Crown Court trial is that the case is decided by a jury. The acquittal rate is higher with juries than with magistrates.
ABH means some injury has been caused which is more than merely trifling but need not be permanent. A scratch drawing some blood would fit this. Often at the first hearing the CPS will change the charge to common assault in cases like this ( to keep the case in the magistrates court to save money ; there is no right to jury trial in a common assault case)
As far as the withdrawal statement is concerned your daugther’s husband is not the person bringing the case, he is just a witness. The deciison whether to proceed is down to the CPS. They often show a great reluctance to discontinue what they will categorise as a domestic violence case because of a withdrawn statement. Also they are not a very efficient organisation.
If there is a withdrawal statement this should be served at the 1st hearing. If not it will be disclosed later on in proceedings.
It is open to the solicitor to make representations that it is not on the public interest to proceed in the light of the witness statement.
In practice what often happens is that the reluctant witness fails to attend court for the trial and the CPS apply for an adjournment. This may or may not be granted and if not, then the likelihood is that the CPS would be forced to offer no evidence and the Defendant is acquitted.
In the Crown Court a lot more effort is often made to bring witnesses to court compared to in the magistrates court. This may be something else to consider when deciding on whether to choose Crown Court trial or not.
The CPS can obtain a witness summons which is an order requiring a witness to attend court. If they fail to attend as required they can be arrested and brought to court in custody.
This is unusual in the Magistrates court and not routine in the Crown Court (at least in the Metropolitan area).
There is very likely to be a bail condition preventing your daughter from talking to her husband. You shouldn’t either and must do nothing to discourage him from going to court.
The likelihood is that the case will continue but that when the trial comes along the reluctant witness will lead to the case failing. I realise that this means your daughter will have the worry of the case hanging over her for some time. A local solicitor will probably have a good idea of how to play this scenario in Oxford.
Any relevant probative evidence can be used in court unless there is a rule against it. Evidence of his previous misconduct may be admissible but it is what is known as bad character evidence and would only be admitted if the Judge/Magistrates allowed it into evidence. The rules around this are quite complex and really all I can say about it in this forum is that it might or might not be allowed in evidence. This is something for your daughter to discuss with her lawyers.
In terms of cost it may be that your daughter will qualify for legal aid. If she is in work she may have monthly contributions to pay. If she has legal aid then this will cover the costs of a barrister or solicitor advocate in the Crown Court.
If she doesn’t have legal aid then the costs will be subject to negotiation. If she pays privately and successfully defends the case then she will get some of her costs paid back out of central funds (ie the legal aid fund).
As far as stopping the CPS is concerned this will not be easy. Once a decision has been made to charge it can be reviewed at any time but it is a decision for the CPS to make. A challenge can be made that there is no case to answer in the Crown Court before pleas are formally taken but if the original statement makes allegations this will be sufficient to get past that test, even with a withdrawal statement in existence.
I hope this has answered your question but if you have any follow up questions then please do not hesitate to ask.
Without a medical examination and with that level of injuries a change of charge to common assault is likely.
Thank you for your advice which I found helpful.
I am waiting to hear from my daughter and if there is anything further I will let you know.
Thank you min the meantime.
As Just Answers have said that I can come back to you without further cost, I am trying to think of the best options to take this forward, in order to achieve an acquittal.
Further to the answer you gave to me re the action that can be taken in a Magistrates Court in respect of the case of my daughter you has been wrongly accused by her husband of scratching him on his arm.
The solicitor for my daughter agreed with the CPS solicitor, BEFORE the court hearing, that as my daughter was pleading Not Guilty, then the case would be adjourned until a later date. The Magistrates Court was presided over only , I think by a Legal Person, there were not 3 magistrates and when she pleaded Not Guilty she was immediately told that the case would be held on 24 April in the Magistrates Court.The proceedings took 5 to 10 minutes maximum.
This will mean that witnesses can be brought in and the husband, the arresting police officer and any one else can be questioned in court. In fact it has emerged that some evidence of the husbands drinking on the evening of the incident, had not been passed to the arresting officer by his colleagues. Despite the solicitor repeatedly asking to police officer to contact them in order to clarify the details he has not.
She has not been told or advised if there is an alternative such as electing to go to Crown Court with trial by jury.
Can you comment on the above and are you also able to answer the following:
1. Can a barrister be appointed to represent my daughter in the Magistrates Court. By doing this and having a barrister who can tear the prosecution to pieces by showing the incident on the day was not deliberate and could only be caused because the husband was using excess force to get the keys from my daughter thereby possibly causing a scratch on his arm by the keys. Also, to demonstrate the bad character of the husband who has been overnight in a polices cell for drunken behavoir on possibly 2 occasions after a football match and also turning up at a Relate consultation drunk. This was perhaps 18 months ago when attempts were being made to save the marriage.
2.Is staying with the hearing in the Magistrates Court a better option to try to achieve an acquittal or to request the hearing before a jury in the Crown Court.
3. Which is the better?
4. Which would be more costly?
I look forward to your reply.
Thank you so much.