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Public Order Act Section 5
I am a 37 year old female teacher with no record whatever I recently after trying to get a refund for flooring from a local carpet firm and was denied I went back to the carpet shop to pick up my flooring. Whilst in the shop myself and the owner got into a heated argument where I said I would be writing on Facebook and google reviews about how she would not issue a refund even when the product had a receipt and was in perfect condition. Her actions resulted in an exchange of words in which no threats were issued by me. All that happened was raised voices. Incredibly my action resulted in me being arrested under what I now know to be section 5, I had to undertake the degrading and disgusting treatment that accompanies an arrest. I have elected to vigarously defend myself although I have no experience of such things I only know that I am totally innocent. The person making the acusation and a couple of customers in the shop at the time have given witness statements which are completely exaggerated. Saying I was swearing etc and my behaviour was scary and that they thought I was on drink and drugs. At no point did I swear nor have I ever taken drugs or drink through the day. During my statement the police officer made it clear that this was an independent witness statement so therefore I was lying. I asked the officer to get CCTV footage but I believe this evidence may be removed. I feel the customer is a customer who the owner knows from shopping there before. This witness who said she was 6 metres away from me but yet felt under threat how ridiculous. The shop owner was just as abrupt as me. Because I deny the allegations I am now going to have to go to court what should I do and what chance is there that I can prove my innocence as I know I have done nothing wrong a part from stand up for my rights as a customer
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The police officer came to my door he didn't arrest me asked me to go down to the station for questioning. I did as he asked as I know I haven't done anything wrong. When I got to the station he interviewed me then took fingerprints and DNA etc because I said I didn't agree with the witness statements. He then said I would get a letter from the courts telling me when to attend
You might have had a better case if you weren't trying to argue about your 'rights as a customer', which simply don't exist under the circumstances you seem to have described!
You've told us the flooring was 'in perfect condition' and I assume that it wasn't 'wrongly described' in any way. (Further, I assume that the purchase was made in the shop and not on the internet, so the Distance Selling Regulations won't apply). In which case I can't see that you have any right to either a refund or exchange. Once a sale of goods is completed there is NEVER any right to either a refund or exchange unless:
(a) there's a legal 'cooling off' period, as with distance selling; or
(b) the goods are faulty; or
(c) the goods were wrongly described ; or
(d) the trader has voluntarily chosen to enter into a contract to refund or exchange goods which the purchaser later decides that they don't want. (e.g. the 30-day money-back guarantee offered on most goods by Argos).
So you appear to have been ranting about 'rights' which you never had anyway, so it's unsurprising that the trader would want you to leave their shop.
Section 5 of the Public Order Act 1986 states:
"A person is guilty of an offence if he . . . uses threatening or abusive words or behaviour, or disorderly behaviour . . . within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby"
The relevant defences are cited thus:
"It is a defence for the accused to prove . . that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or . . .that his conduct was reasonable."
(See here for the full wording
http://
but note that there's a change to the legislation which I've incorporated into my quote above but doesn't yet appear on the page from which it was derived:
http://
If you'd had a legitimate complaint against the trader then the 'reasonable conduct' defence might, at least in part, have been useful to you. However, since you had no such complaint, you'll need to rely upon showing that your actions were not likely to have caused 'harassment, alarm or distress'. When assessing such a likelihood (or the lack of it) a court will take into account the particular circumstances of the action. (For example, a court has ruled that it's not illegal to tell a police officer to 'F off' since, by the nature of his job, he's unlikely to be caused any real 'harassment, alarm or distress' because of it. However telling a group of nuns, who are accompanied by young children, to 'F off' is far more likely to fall foul of the law). So a court would have to examine whether you could reasonably have expected the people in the shop to suffer 'harassment, alarm or distress'.
When you were at the police station you should have been asked if you wanted the duty solicitor (or a solicitor of your own choosing) to attend. You've not mentioned a solicitor, so I assume that you declined that offer which, in my opinion, was a very big mistake! You certainly need to obtain the services of a solicitor a.s.a.p. and to get them to examine the statements from all concerned (and to seek out the CCTV evidence, if such exists).
You've told us the flooring was 'in perfect condition' and I assume that it wasn't 'wrongly described' in any way. (Further, I assume that the purchase was made in the shop and not on the internet, so the Distance Selling Regulations won't apply). In which case I can't see that you have any right to either a refund or exchange. Once a sale of goods is completed there is NEVER any right to either a refund or exchange unless:
(a) there's a legal 'cooling off' period, as with distance selling; or
(b) the goods are faulty; or
(c) the goods were wrongly described ; or
(d) the trader has voluntarily chosen to enter into a contract to refund or exchange goods which the purchaser later decides that they don't want. (e.g. the 30-day money-back guarantee offered on most goods by Argos).
So you appear to have been ranting about 'rights' which you never had anyway, so it's unsurprising that the trader would want you to leave their shop.
Section 5 of the Public Order Act 1986 states:
"A person is guilty of an offence if he . . . uses threatening or abusive words or behaviour, or disorderly behaviour . . . within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby"
The relevant defences are cited thus:
"It is a defence for the accused to prove . . that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or . . .that his conduct was reasonable."
(See here for the full wording
http://
but note that there's a change to the legislation which I've incorporated into my quote above but doesn't yet appear on the page from which it was derived:
http://
If you'd had a legitimate complaint against the trader then the 'reasonable conduct' defence might, at least in part, have been useful to you. However, since you had no such complaint, you'll need to rely upon showing that your actions were not likely to have caused 'harassment, alarm or distress'. When assessing such a likelihood (or the lack of it) a court will take into account the particular circumstances of the action. (For example, a court has ruled that it's not illegal to tell a police officer to 'F off' since, by the nature of his job, he's unlikely to be caused any real 'harassment, alarm or distress' because of it. However telling a group of nuns, who are accompanied by young children, to 'F off' is far more likely to fall foul of the law). So a court would have to examine whether you could reasonably have expected the people in the shop to suffer 'harassment, alarm or distress'.
When you were at the police station you should have been asked if you wanted the duty solicitor (or a solicitor of your own choosing) to attend. You've not mentioned a solicitor, so I assume that you declined that offer which, in my opinion, was a very big mistake! You certainly need to obtain the services of a solicitor a.s.a.p. and to get them to examine the statements from all concerned (and to seek out the CCTV evidence, if such exists).
I do not have anything to add to Buenchico's answer to your question ... but as an ex teacher I would, in your position, be concerned about the effects of a conviction on your future CRB checks and therefore job opportunities. I would urge you to contact your union post haste and ask for legal advice regarding this situation.
God poor you
I am not sure if your having rights or no is relevant to the charge
you believed you did and that is the reason
BC - they didnt call the police to the shop - they came to the house
and yes I think the CCTV is relevant - you could demand it udner the data protection act
and finally - yes - Mally I think is right, you have to defend this charge as it may affect your job
Time for a lawyer I think - and money money money
and yes I agree with you Hellie - damned funny way to treat a dissatisfied customer
This is the first time I have heard of this ( at a shop )
I have sympathy for you and it is a shock - but still you wouldnt have met nice people like us would you ?
I am currently involved in a rent arrears action with added allegations of harassment ( you know like can I have some rent please ?) and she really didnt like - here is a letter before action - and now I understand why one neighbour volunteered, "I have never heard you raise your voice let alone get bad-tempered"
Good Luck dear hel, and I think the CCTV would be central to your case
I am not sure if your having rights or no is relevant to the charge
you believed you did and that is the reason
BC - they didnt call the police to the shop - they came to the house
and yes I think the CCTV is relevant - you could demand it udner the data protection act
and finally - yes - Mally I think is right, you have to defend this charge as it may affect your job
Time for a lawyer I think - and money money money
and yes I agree with you Hellie - damned funny way to treat a dissatisfied customer
This is the first time I have heard of this ( at a shop )
I have sympathy for you and it is a shock - but still you wouldnt have met nice people like us would you ?
I am currently involved in a rent arrears action with added allegations of harassment ( you know like can I have some rent please ?) and she really didnt like - here is a letter before action - and now I understand why one neighbour volunteered, "I have never heard you raise your voice let alone get bad-tempered"
Good Luck dear hel, and I think the CCTV would be central to your case
Yes black_cat is quite correct. Private operators of CCTV systems have no obligation to retain footage and if it undermines the S5 case against you it may now be "unavailable". However, under the Criminal Procedures and Investigations Act, if the CPS have seen the said CCTV footage (but decided not to rely on it to support their case) they have a duty to make it available to the defence. If it transpires that the footage has been seen, not used but is now unavailable it can seriously undermine the prosecution case.
You really need a solicitor to sort this out for you. Although S5 is not a serious offence (it is the least serious of the 5 Public Order Act offences and is punishable only by way of a fine) a criminal conviction of any sort may have serious implications for someone in your position.
You really need a solicitor to sort this out for you. Although S5 is not a serious offence (it is the least serious of the 5 Public Order Act offences and is punishable only by way of a fine) a criminal conviction of any sort may have serious implications for someone in your position.
The current info on CCTV from the info commissioner is here:
http://
I still think you can try a subject access request
http://
I still think you can try a subject access request
Hi everyone it's me again. Just want to clarify about the flooring first the flooring was in perfect condition but the marble colouring was different to the sample I picked in the shop. In the shop the colour was very light white the tiles I got were very dark orangey cream. Therefore I presumed I had a right to a refund.
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