ChatterBank0 min ago
Binding over order
18 Answers
Can you help. I have been charged with a section 39 assault against a vulnerable adult. The allegation is false but a colleague has made the allegation.
I cannot call the vulnerable adult due to her mental capacity although she has claimed the assault did not happen.
My solicitor has told me although he totally believes my innocence the court are going to cosmeticly favour the complainant a carer an attractive young lady of 20 against me a male 59 years. He cannot find anything to discredit her.
He has offered me three alternatives plea guilty, plead innocent (6months prison or more likely) or take a chance that the prosecution will agree to accepting a pre-trial BINDING ORDER (50%) possibility.
What does this mean, entail anyone any opinion? I need some advice in the next 48hrs before I advise my Solicitor
I cannot call the vulnerable adult due to her mental capacity although she has claimed the assault did not happen.
My solicitor has told me although he totally believes my innocence the court are going to cosmeticly favour the complainant a carer an attractive young lady of 20 against me a male 59 years. He cannot find anything to discredit her.
He has offered me three alternatives plea guilty, plead innocent (6months prison or more likely) or take a chance that the prosecution will agree to accepting a pre-trial BINDING ORDER (50%) possibility.
What does this mean, entail anyone any opinion? I need some advice in the next 48hrs before I advise my Solicitor
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[Two Part post]
As Ethel rightly says, if you are innocent you should enter such a plea and let the prosecution produce their evidence.
A bind over is a strange beast. It is a court order whereby a person enters into an agreement with the court to �keep the peace� for a specific period. In default a sum of money (specified at the time of the bind over) will be forfeit.
A bind over can be general or can be specific towards a named person or persons. It is not intended as a punishment but to prevent a possible misdemeanour occurring. It can be made as an �ancillary order� following a conviction, but cannot be imposed as a sentence in its own right. However, it can be imposed following the laying of a complaint (usually by the police) before the court. No conviction is needed in these circumstances so there should be information put before the Court that demonstrates that a breach of the peace may take place if it is not imposed.
In your case it seems that the police may be prepared to deal with the matter by way of a bind over, but in order for that to happen you must agree. The police will ask you whether you agree to this and so will the court. In fact, if you are offered a bind over (by the court) and you refuse you can be committed to prison. In practice this is most unlikely to happen. If you refuse to be bound over it will not be offered by the Court and the prosecution will have to decide whether to continue or withdraw the matter.
As Ethel rightly says, if you are innocent you should enter such a plea and let the prosecution produce their evidence.
A bind over is a strange beast. It is a court order whereby a person enters into an agreement with the court to �keep the peace� for a specific period. In default a sum of money (specified at the time of the bind over) will be forfeit.
A bind over can be general or can be specific towards a named person or persons. It is not intended as a punishment but to prevent a possible misdemeanour occurring. It can be made as an �ancillary order� following a conviction, but cannot be imposed as a sentence in its own right. However, it can be imposed following the laying of a complaint (usually by the police) before the court. No conviction is needed in these circumstances so there should be information put before the Court that demonstrates that a breach of the peace may take place if it is not imposed.
In your case it seems that the police may be prepared to deal with the matter by way of a bind over, but in order for that to happen you must agree. The police will ask you whether you agree to this and so will the court. In fact, if you are offered a bind over (by the court) and you refuse you can be committed to prison. In practice this is most unlikely to happen. If you refuse to be bound over it will not be offered by the Court and the prosecution will have to decide whether to continue or withdraw the matter.
[Part Two]
So, even if a bind over is offered you do not have to accept it and can insist upon a trial. If you do decide to plead not guilty you should remember that it is the prosecution�s burden to prove the matter to the magistrates beyond reasonable doubt. They will have to produce evidence that an assault took place and that you were the perpetrator. If, as you say, it did not take place, they may have difficulty fulfilling that burden. I would respectfully suggest that your solicitor is incorrect in suggesting that the age, appearance and gender of any witnesses will add any weight to their evidence, which will be fully tested in Court. He should also advise you that whilst the maximum penalty for a Section 39 assault is 6 months custody, magistrates� sentencing guidelines suggest a starting point of a community penalty.
It is not clear from your question whether you are in the caring profession yourself. If you are, although accepting a bind over does not mean you will have a conviction recorded against you, I should imagine it will not do you any good.
So, even if a bind over is offered you do not have to accept it and can insist upon a trial. If you do decide to plead not guilty you should remember that it is the prosecution�s burden to prove the matter to the magistrates beyond reasonable doubt. They will have to produce evidence that an assault took place and that you were the perpetrator. If, as you say, it did not take place, they may have difficulty fulfilling that burden. I would respectfully suggest that your solicitor is incorrect in suggesting that the age, appearance and gender of any witnesses will add any weight to their evidence, which will be fully tested in Court. He should also advise you that whilst the maximum penalty for a Section 39 assault is 6 months custody, magistrates� sentencing guidelines suggest a starting point of a community penalty.
It is not clear from your question whether you are in the caring profession yourself. If you are, although accepting a bind over does not mean you will have a conviction recorded against you, I should imagine it will not do you any good.
New Judge
Thank you for your very informative reply. My solicitor is working on the basis that this alleged incident, which was not witnessed by others, hangs on the following facts.
The Carer making the allegation, was employed on a three month probationery period of employment. She alleges an act of assault took place in that I put my arm around a residents head and perpertrated an act of assault by forcing them/propelling them onwards without consent. My contention is that I offered my arm out, the resident trustingly walked towards it and with my arm around here shoulder we walked away.
The resident, a female adult, is current under the mental heath act of 1983 and is in a residential home placement. She has stated that my version is accurate but because of her illness she is likely to do a u-turn in court.
It is felt therefore she would be most unsafe as a witness.
As the Home Manager at the time, it is perceived I should have known better.
There is no motive for the Carer to make an allegation and nothing to discredit her. The whole case is who's account will the court believe and with the latter facts my solicitor has said the binding-over, which he is only 50% confident of achieving.
I am in a dilema any reply would be welcomed
Thank you for your very informative reply. My solicitor is working on the basis that this alleged incident, which was not witnessed by others, hangs on the following facts.
The Carer making the allegation, was employed on a three month probationery period of employment. She alleges an act of assault took place in that I put my arm around a residents head and perpertrated an act of assault by forcing them/propelling them onwards without consent. My contention is that I offered my arm out, the resident trustingly walked towards it and with my arm around here shoulder we walked away.
The resident, a female adult, is current under the mental heath act of 1983 and is in a residential home placement. She has stated that my version is accurate but because of her illness she is likely to do a u-turn in court.
It is felt therefore she would be most unsafe as a witness.
As the Home Manager at the time, it is perceived I should have known better.
There is no motive for the Carer to make an allegation and nothing to discredit her. The whole case is who's account will the court believe and with the latter facts my solicitor has said the binding-over, which he is only 50% confident of achieving.
I am in a dilema any reply would be welcomed
In my view, from the brief facts you have provided there is insufficient evidence to secure a conviction. From what you say it is doubtful that the prosecution will call your alleged victim to give evidence. This is not only because of her parlous mental state but also because, at least for the moment, she seems to support your version of events. Furthermore, she would be required to provide a statement and it seems she would be unlikely to do this. A change of mind in court would simply discredit her testimony entirely.
This leaves just the evidence of the 20 year old. On this one piece of evidence I doubt even that the CPS would take the matter to court. The incident you describe may well have been inadvisable in your role as a carer. However, that is vastly different from crossing the threshold of criminal assault. For this to be so there usually (though not always) has to be injury and there usually (though again, not always) has to be a complaint from the alleged victim. It seems that neither is present.
Allegations that fall short of the threshold are often presented to magistrates for a bind over to be imposed. In many cases this is because the CPS either does not have, or cannot trouble itself to gather the necessary evidence. When perpetrators who are guilty are offered a bind over they usually accept just to clear the matter up. In most cases it makes no material difference to them provided they do not reoffend. Your case is different. You clearly believe you are innocent and it would not be in your interest to accept a bind over (if it is offered) for the sake of expediency.
Of course you must not dismiss your solicitor�s advice. He or she has all the facts and I only have an outline. However, I should think long and hard before taking any action which would admit your guilt. Even get a second opinion if necessary.
I�d be very interested to learn the outcome.
This leaves just the evidence of the 20 year old. On this one piece of evidence I doubt even that the CPS would take the matter to court. The incident you describe may well have been inadvisable in your role as a carer. However, that is vastly different from crossing the threshold of criminal assault. For this to be so there usually (though not always) has to be injury and there usually (though again, not always) has to be a complaint from the alleged victim. It seems that neither is present.
Allegations that fall short of the threshold are often presented to magistrates for a bind over to be imposed. In many cases this is because the CPS either does not have, or cannot trouble itself to gather the necessary evidence. When perpetrators who are guilty are offered a bind over they usually accept just to clear the matter up. In most cases it makes no material difference to them provided they do not reoffend. Your case is different. You clearly believe you are innocent and it would not be in your interest to accept a bind over (if it is offered) for the sake of expediency.
Of course you must not dismiss your solicitor�s advice. He or she has all the facts and I only have an outline. However, I should think long and hard before taking any action which would admit your guilt. Even get a second opinion if necessary.
I�d be very interested to learn the outcome.
New Judge
Thank you for your time and reply. The CPS have thought the allegation sufficiently serious to charge me and I am listed for an appearance on the 30th Oct.
My Solicitor has interviewed the resident and she has give a statement that although the incident took place I did not assault her nor act as alleged.
My solicitor believes that although she is-Sane as a Saint and the psychiatrist confirms she has coherant capacity, she may in the court environment completely do a u-turn evidence wise which he thinks would be absolutely catastrophic to me. He therefore does not advise her being called.
Although I have two excellent character witnesses, an unblemished record, no previous police interaction he confirms he has nothing to discredit the carer with. I have also confirmed the latter in that she presented herself with committment, charm and support to staff and residents until this allegation.
I have been told as unfair as it is, I will be fighting to prove my innocence rather than the CPS proving alleged guilt and as such if he can negociate it I may have a 50% re the BINDING OVER rather than a lesser chance of aquittal
If you can spare further time to reply I would appreciate it
Thank you for your time and reply. The CPS have thought the allegation sufficiently serious to charge me and I am listed for an appearance on the 30th Oct.
My Solicitor has interviewed the resident and she has give a statement that although the incident took place I did not assault her nor act as alleged.
My solicitor believes that although she is-Sane as a Saint and the psychiatrist confirms she has coherant capacity, she may in the court environment completely do a u-turn evidence wise which he thinks would be absolutely catastrophic to me. He therefore does not advise her being called.
Although I have two excellent character witnesses, an unblemished record, no previous police interaction he confirms he has nothing to discredit the carer with. I have also confirmed the latter in that she presented herself with committment, charm and support to staff and residents until this allegation.
I have been told as unfair as it is, I will be fighting to prove my innocence rather than the CPS proving alleged guilt and as such if he can negociate it I may have a 50% re the BINDING OVER rather than a lesser chance of aquittal
If you can spare further time to reply I would appreciate it
I am still a little confused about your solicitor�s advice.
It seems that there has been no allegation of assault by the alleged victim and there are no injuries. The only statement the victim has made confirms this. It is unlikely that the prosecution will want her involved as her statement does not support their case. The only way her statement can be produced without her giving evidence is if it is �agreed� by both parties. I cannot see the prosecution making such an agreement.
It is possible for her to be presented as a witness in your defence. In that case, the contents of her statement would be made known to the Court. If she maintains her story under cross-examination you would almost certainly be acquitted. If she changes her story during cross-examination her evidence would be largely disregarded as unreliable and you would be no worse off.
You do not have to prove your innocence. It is for the CPS to put before the Court sufficient evidence to prove your guilt. It seems all they have is the testimony of the 20 year old. I still maintain that that is insufficient; especially bearing in mind there is no complaint and no injuries. The witness may be of good character and may have no ulterior motive. Generally, however, a single uncorroborated testimony is not usually sufficient to see a conviction.
As I have said, you must ultimately be guided by your solicitor. What you need to do as well is to establish what effect a Bind Over will have upon your career. If it has no effect it could be your best option. (At least you are 100% sure of emerging without a conviction). If he will have an effect, and that effect is the same as if you were convicted, then you might as well plead Not Guilty and let justice take its course.
Do let me know the outcome.
It seems that there has been no allegation of assault by the alleged victim and there are no injuries. The only statement the victim has made confirms this. It is unlikely that the prosecution will want her involved as her statement does not support their case. The only way her statement can be produced without her giving evidence is if it is �agreed� by both parties. I cannot see the prosecution making such an agreement.
It is possible for her to be presented as a witness in your defence. In that case, the contents of her statement would be made known to the Court. If she maintains her story under cross-examination you would almost certainly be acquitted. If she changes her story during cross-examination her evidence would be largely disregarded as unreliable and you would be no worse off.
You do not have to prove your innocence. It is for the CPS to put before the Court sufficient evidence to prove your guilt. It seems all they have is the testimony of the 20 year old. I still maintain that that is insufficient; especially bearing in mind there is no complaint and no injuries. The witness may be of good character and may have no ulterior motive. Generally, however, a single uncorroborated testimony is not usually sufficient to see a conviction.
As I have said, you must ultimately be guided by your solicitor. What you need to do as well is to establish what effect a Bind Over will have upon your career. If it has no effect it could be your best option. (At least you are 100% sure of emerging without a conviction). If he will have an effect, and that effect is the same as if you were convicted, then you might as well plead Not Guilty and let justice take its course.
Do let me know the outcome.
Hello New Judge,
I see my solicitor at 2pm today to confirm my plea of not guilty or ask him to approach the prosecution for a possible BIND.
In correspondence yesterday he advised me the following-
My two character witnesses were favourable, my proprietor citing I was trustworthy and my residents came first, howeverthey confirmed the Carer was also a good worker and as her account was broadly similar to what was in her statement given to the police what was said in the initial meeting with the management and her was the aftermath of the incident, heresay and did not assist my case.
The resident and her husband were interviewed. The latter said he had spoken to the victim who would tell him if anything bad had happened. She did not. Again heresay, and only admissable if we were successful in an application to admit the same.
The alleged victim-very temperamental, easily led to say exactly what one wanted. The solicitor is concerned if she has a bad day she could severley hinder the case.Although she is the only one who can categorically say whether she consented to my actions it is decided not to call as a witness.
At the last hearing before the Court the matter of prosecution heresay was dealt with and it was decided that this issue was to be dealt with by the trial Judge/Magistrates. Importantly the Judge on this occasion indicated that should I be found guilty of the offence after a full trial it was likely that I would be given a custodial sentence.
In the light of this my options are -
Not GUILTY- this is based on the defence of consent for which we have only my evidence and not that of the alleged victim.
Guilty- this will allow me credit for a pleading and reduce any sentence the Court may give
Bind Over My Solicitor will make representation to the CPS to offer me a Bind over
I see my solicitor at 2pm today to confirm my plea of not guilty or ask him to approach the prosecution for a possible BIND.
In correspondence yesterday he advised me the following-
My two character witnesses were favourable, my proprietor citing I was trustworthy and my residents came first, howeverthey confirmed the Carer was also a good worker and as her account was broadly similar to what was in her statement given to the police what was said in the initial meeting with the management and her was the aftermath of the incident, heresay and did not assist my case.
The resident and her husband were interviewed. The latter said he had spoken to the victim who would tell him if anything bad had happened. She did not. Again heresay, and only admissable if we were successful in an application to admit the same.
The alleged victim-very temperamental, easily led to say exactly what one wanted. The solicitor is concerned if she has a bad day she could severley hinder the case.Although she is the only one who can categorically say whether she consented to my actions it is decided not to call as a witness.
At the last hearing before the Court the matter of prosecution heresay was dealt with and it was decided that this issue was to be dealt with by the trial Judge/Magistrates. Importantly the Judge on this occasion indicated that should I be found guilty of the offence after a full trial it was likely that I would be given a custodial sentence.
In the light of this my options are -
Not GUILTY- this is based on the defence of consent for which we have only my evidence and not that of the alleged victim.
Guilty- this will allow me credit for a pleading and reduce any sentence the Court may give
Bind Over My Solicitor will make representation to the CPS to offer me a Bind over
Sorry, paradox, I don't really think there's any more I can add. The views I have made are simply that - my views.
You must ultimately be guided by your solicitor. However, as I think I have made clear, it is my view that the single testimony against you would not be sufficient to convict you in the magistrates' court.
If I were in the situation as you have described it I personally would not accept a Bind Over (even if it were offered) and would plead Not Guilty. But, of course, I don't know all the facts and ultimately it is a matter for you.
You must ultimately be guided by your solicitor. However, as I think I have made clear, it is my view that the single testimony against you would not be sufficient to convict you in the magistrates' court.
If I were in the situation as you have described it I personally would not accept a Bind Over (even if it were offered) and would plead Not Guilty. But, of course, I don't know all the facts and ultimately it is a matter for you.
Hello New Judge
I have seen my solicitor yesterday and the following was advised.
It seems the evidence that will be produced in the case of the prosecution is the testimony of the Carer.
I have been advised although I offered an arm to the alleged victim in a calm re-assuring way I did not seek prior permission when she walked in my outstreched arm and by putting my arm around her shoulder contact without permission was made.
The carer as you know has alleged I forced my arm around the alleged victim and used force to "propell her"
The victim has been interviewed by my solicitor and she has confirmed although the senario took place, I did not use force. However she is a vulnerable adult and because of her volitility of mood she could be easily lead to condemn me. Conversely she may stand up to the cross examination and support me but he feels uneasy to take that chance.
I have seen my solicitor yesterday and the following was advised.
It seems the evidence that will be produced in the case of the prosecution is the testimony of the Carer.
I have been advised although I offered an arm to the alleged victim in a calm re-assuring way I did not seek prior permission when she walked in my outstreched arm and by putting my arm around her shoulder contact without permission was made.
The carer as you know has alleged I forced my arm around the alleged victim and used force to "propell her"
The victim has been interviewed by my solicitor and she has confirmed although the senario took place, I did not use force. However she is a vulnerable adult and because of her volitility of mood she could be easily lead to condemn me. Conversely she may stand up to the cross examination and support me but he feels uneasy to take that chance.
2-It seems the reported account given as a complaint to the proprietor by the carer which implemented an initial enquiry is similar to the statement given to the police so much of the "difference or personal opinion" is heresay. When put before the pre-trial judge it was agreed both prosecution and defence heresay admissions will be heard by the trial judge ormagistrate on the day of trial. However the pre-trial judge for some reason has indicated if found guilty after a trial expect a custodial sentence.
I feel totally dis-enchanted at this juncture with both the police and justice system.
I would fight this to the end because I am totally innocent but it seems as you alluded earlier in reply although in most cases injury needs to be seen-its not always so.
I seem on a technicality to have crossed a line of assult by placing my arm around a vulnerable adult and despite two ex-colleagues and her husband making submission-(heresay) the victim supporting-(Unsound testimony) 55years of never being in trouble with any side of the law-(so what) I am going to possibily be found guilty of a Section 39 assault by beating on the allegation of a colleague of twenty who had only been in employment on a probationary period for 2/3 weeks.
I feel totally dis-enchanted at this juncture with both the police and justice system.
I would fight this to the end because I am totally innocent but it seems as you alluded earlier in reply although in most cases injury needs to be seen-its not always so.
I seem on a technicality to have crossed a line of assult by placing my arm around a vulnerable adult and despite two ex-colleagues and her husband making submission-(heresay) the victim supporting-(Unsound testimony) 55years of never being in trouble with any side of the law-(so what) I am going to possibily be found guilty of a Section 39 assault by beating on the allegation of a colleague of twenty who had only been in employment on a probationary period for 2/3 weeks.
3-I have been suspended since March with restrictive bail not to approach the home or victim and witness -the latter has had total unrestricted contact daily with the victim and support from the colleagues there.
Because I have a family I have had to approach the Bind-over as the option.
However I have been advised there is no guarantee I will be removed from the preliminery POVA (Protection of Vulnerable Adults )list and may even be permanently confirmed. The allegation will be registered on a CRB check. DNA will be recorded on the PNC-Police computer
(I'm sure the Chief Constable will be empathetic even if I dont get the Bind offer, go to trial, am aquitted, enough to expunged all recorded information-some hope)
I thank you New Judge for all your input-If you have any further reflections or advice please post it. Your support has been substantial and crucial to my personal sanity and selfish indulgence that I am suffering personal injustice
Because I have a family I have had to approach the Bind-over as the option.
However I have been advised there is no guarantee I will be removed from the preliminery POVA (Protection of Vulnerable Adults )list and may even be permanently confirmed. The allegation will be registered on a CRB check. DNA will be recorded on the PNC-Police computer
(I'm sure the Chief Constable will be empathetic even if I dont get the Bind offer, go to trial, am aquitted, enough to expunged all recorded information-some hope)
I thank you New Judge for all your input-If you have any further reflections or advice please post it. Your support has been substantial and crucial to my personal sanity and selfish indulgence that I am suffering personal injustice
[Two Parts]
Just one or two more comments, paradox, and then I think we must let justice prevail!
Whilst, technically, all unwanted or uninvited contact can be viewed as assault, it is often (as in this case) for the magistrates to decide whether the contact constitutes an assault. The unfortunate aspect in all of this for you is the circumstances, with you as a carer and your �victim� in your care. If it had happened in ordinary circumstances we would not be discussing it. The waiter in my local curry house put his arm round my shoulder as we left last Saturday, I didn�t invite it, want it, or particularly like it. But he did not assault me.
It is for that reason that I believe the testimony of your victim is vital. Her statement backs up your story. Even if she breaks down under cross-examination, the contents of her original statement would have been made known to the Court, and this should be sufficient to cast reasonable doubt in the magistrates� minds.
I am also surprised that you have been given of view of a potential sentence. The offence you have been charged with is a �summary� offence. That is, it is dealt with in its entirety in the magistrates� court. There is no possibility of you being sent to the Crown Court either for trial or sentence.
In the magistrates� court no view on potential sentence is given until after conviction (that is, until you either plead guilty or are found guilty at trial). Only then does the Bench make its initial sentencing views clear, and only if they have ruled out disposal by means of a fine or discharge. If they are thinking of imposing either a Community of Custodial sentence they ask the Probation Service to prepare reports, and with that request they provide an indication of the level of sentence they have in mind.
Just one or two more comments, paradox, and then I think we must let justice prevail!
Whilst, technically, all unwanted or uninvited contact can be viewed as assault, it is often (as in this case) for the magistrates to decide whether the contact constitutes an assault. The unfortunate aspect in all of this for you is the circumstances, with you as a carer and your �victim� in your care. If it had happened in ordinary circumstances we would not be discussing it. The waiter in my local curry house put his arm round my shoulder as we left last Saturday, I didn�t invite it, want it, or particularly like it. But he did not assault me.
It is for that reason that I believe the testimony of your victim is vital. Her statement backs up your story. Even if she breaks down under cross-examination, the contents of her original statement would have been made known to the Court, and this should be sufficient to cast reasonable doubt in the magistrates� minds.
I am also surprised that you have been given of view of a potential sentence. The offence you have been charged with is a �summary� offence. That is, it is dealt with in its entirety in the magistrates� court. There is no possibility of you being sent to the Crown Court either for trial or sentence.
In the magistrates� court no view on potential sentence is given until after conviction (that is, until you either plead guilty or are found guilty at trial). Only then does the Bench make its initial sentencing views clear, and only if they have ruled out disposal by means of a fine or discharge. If they are thinking of imposing either a Community of Custodial sentence they ask the Probation Service to prepare reports, and with that request they provide an indication of the level of sentence they have in mind.
[Part Two]
In the magistrates� court no view on potential sentence is given until after conviction (that is, until you either plead guilty or are found guilty at trial). Only then does the Bench make its initial sentencing views clear, and only if they have ruled out disposal by means of a fine or discharge. If they are thinking of imposing either a Community of Custodial sentence they ask the Probation Service to prepare reports, and with that request they provide an indication of the level of sentence they have in mind.
I am even more surprised that the indication is one of custody. The magistrates� sentencing guidelines for the offence indicate that their starting point (for an �average� offence committed by a first-time offender, pleading not guilty) is a Community penalty. The Bench then has to consider mitigating and aggravating features of the offence and personal mitigation relating to the offender. (This is why no indication of sentence can realistically be given before conviction). To go up from a community penalty to one of custody there must be aggravating features. All there is in your case is the position of care you were in. In mitigation, there was no injury (indeed, no complaint) and you have your own exemplary record to cite. If you were to receive a custodial sentence you would have extremely strong grounds for an appeal against such a sentence.
Over the top of all this, of course, is the effect all this is having, and will have upon your career. It is unfortunate that the effects of this, for you, stretch far beyond the courtroom. Any sentence a court may impose is, I imagine, the least of your worries. I personally would not like to be involved in a business where I would be vulnerable to accusations of, let�s face it, a ridiculously trivial nature which could be made by anybody who chooses to do so.
Don�t really think there�s much more I can say, but please let me know the outcome.
In the magistrates� court no view on potential sentence is given until after conviction (that is, until you either plead guilty or are found guilty at trial). Only then does the Bench make its initial sentencing views clear, and only if they have ruled out disposal by means of a fine or discharge. If they are thinking of imposing either a Community of Custodial sentence they ask the Probation Service to prepare reports, and with that request they provide an indication of the level of sentence they have in mind.
I am even more surprised that the indication is one of custody. The magistrates� sentencing guidelines for the offence indicate that their starting point (for an �average� offence committed by a first-time offender, pleading not guilty) is a Community penalty. The Bench then has to consider mitigating and aggravating features of the offence and personal mitigation relating to the offender. (This is why no indication of sentence can realistically be given before conviction). To go up from a community penalty to one of custody there must be aggravating features. All there is in your case is the position of care you were in. In mitigation, there was no injury (indeed, no complaint) and you have your own exemplary record to cite. If you were to receive a custodial sentence you would have extremely strong grounds for an appeal against such a sentence.
Over the top of all this, of course, is the effect all this is having, and will have upon your career. It is unfortunate that the effects of this, for you, stretch far beyond the courtroom. Any sentence a court may impose is, I imagine, the least of your worries. I personally would not like to be involved in a business where I would be vulnerable to accusations of, let�s face it, a ridiculously trivial nature which could be made by anybody who chooses to do so.
Don�t really think there�s much more I can say, but please let me know the outcome.
Hello New Judge
Many thans for your reply and the considerably time and effort you have given to my circumstances. I feel re-assured by your impartial assessment and will now await developments at the end of the month.
My solicitor has advised me he will explore the possibility of liason with the prosecution re the BIND but will not accept without my agreement.
When you are guilty of an offence you have the freedom of choice to admit guilt or alternatively innocence. Being aquitted is a result, being found guilty a matter of just deserts.
When you are innocent and aquitted what is justice when your DNA is retained, the offence of Was charged of assault by batterybut aquitted is on your Criminal Records Bureau check CRB and on the foible of the Chief Constable the record remains on the POVA record.
In my profession any implication even false is damming and justice also serves the fact that I cannot obtain any form of compensation for loss of job, reputation of distress.
I will keep you posted if any relevant information comes to hand before trial and also the conclusion.
Many THANKS AND APPRECIATION
Many thans for your reply and the considerably time and effort you have given to my circumstances. I feel re-assured by your impartial assessment and will now await developments at the end of the month.
My solicitor has advised me he will explore the possibility of liason with the prosecution re the BIND but will not accept without my agreement.
When you are guilty of an offence you have the freedom of choice to admit guilt or alternatively innocence. Being aquitted is a result, being found guilty a matter of just deserts.
When you are innocent and aquitted what is justice when your DNA is retained, the offence of Was charged of assault by batterybut aquitted is on your Criminal Records Bureau check CRB and on the foible of the Chief Constable the record remains on the POVA record.
In my profession any implication even false is damming and justice also serves the fact that I cannot obtain any form of compensation for loss of job, reputation of distress.
I will keep you posted if any relevant information comes to hand before trial and also the conclusion.
Many THANKS AND APPRECIATION
Hello New Judge
Just to advise that the case went to court yesterday presided over by a District Judge and I was found Not Guilty
I understand from my advocate, a female solicitor that my name will be removed from the POVA list and will not be referred to on the CRB list. However despite re-assurance from the charging police officer my DNA profile would be destroyed it will not be.
Innocent or guilty, arrested on suspicion, charged or not DNA will be logged on the police database whether the innocent choose or not.
I am left an innocent man however there is no compensation for loss of job, stress on my family or myself, chinese whispers heresay against ones reputation etc.
It seems most unfair that a third party can make an erroronious and factless allegation against an innocent man and the latter is still the victim after his iinnocence is confirmed in a court of law.
I dont know whether you want to add a final summary but please accept my thanks for your invaluable advice and input
Paradox999
Just to advise that the case went to court yesterday presided over by a District Judge and I was found Not Guilty
I understand from my advocate, a female solicitor that my name will be removed from the POVA list and will not be referred to on the CRB list. However despite re-assurance from the charging police officer my DNA profile would be destroyed it will not be.
Innocent or guilty, arrested on suspicion, charged or not DNA will be logged on the police database whether the innocent choose or not.
I am left an innocent man however there is no compensation for loss of job, stress on my family or myself, chinese whispers heresay against ones reputation etc.
It seems most unfair that a third party can make an erroronious and factless allegation against an innocent man and the latter is still the victim after his iinnocence is confirmed in a court of law.
I dont know whether you want to add a final summary but please accept my thanks for your invaluable advice and input
Paradox999
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