Section 39

[Ted1991]

I am 66 years old and have a son of 19 who suffers with ADHD. One evening I asked him to do the washing up. He refused and got very abuse. The arguement resulted in my trying to restrain him from going on the computer and he begame very aggresive. As he is stronger than me now, I took off my slipper and threatened to hit him with it but did not strike him or even intended to strike him. He broke away and went out of the house and phoned the police who turned up and arrested me.

After a night in a cell I met with a solicitor who assured me that nothing would happen other than probably a warning. However on being released I was charged with Common Assault : Contrary to Section 39. I duly contacted the solicitor and he was aghast of the change and would look into it. As yet I have had no response.

Can anybody advise me please whether the police can do this as absolutly no harm came to my son and he swears that he did not press charges

[bednobs]

Sorry but he dosen't have to "press charges" As this is a domestic violence situation, the police are aggresive in persuing it, so yes they can do it. He will also i expect be seen as a vulnerable person, which may again be why the police are persuing it

[pauln90]

If your son told the police that he genuinely feared that you were going to strike him then that is enough for a charge of s 39 common assault. The fact that he was aggressive towards you may count as mitigation or maybe a solicitor could put forward a case for self defence. Be guided by your solicitor.

[Ted1991]

Thanks 'pauln90' and 'bednobs' for your speedy replies. I will just have to wait for the solicitor to respond mainly to find out why he adamantly believed that no charges would be brought other than a caution.

[New Judge]

I must take issue:

“Common assault is committed when a defendant intentionally or recklessly causes a victim to apprehend immediate unlawful force, or when such force is used.”

(Taken from the Sentencing Guidelines Council’sefinitive guideline “Assault and other offences against the person” published 20 February 2008.

It is thus technically possible for a charge of assault to be laid when no physical contact is made (“...or when such force is used”). But the chances of a conviction in such circumstances are extremely remote and I doubt the CPS would proceed if they beleived there had been no contact.

It is true that your son does not have to cooperate with this charge, but that would make the chance of conviction even slimmer.

[themas]

I despair! What is this country coming to? Yet another case of the victim being treated as the criminal.

Yes - the police had to interview you. But they did not have to arrest you & keep you in a cell for a night in order to do so.

Be guided by your solicitor - but if I was asked to accept a caution in these circumstances & genuinely felt I had done nothing wrong (& don't forget this means a criminal record & can affect all sorts of things such as car & house insurances) I would be very inclined to refuse and see what happened.