To think this is unfair .guilty until proven innocent ?

[indyindie]

Long story but will summarise dh was charged with Assualt and is due in court in a few months time.
He allegedly punched a man.
The man was our neighbour .
The neighbour had lived here for just under a year , he is an alcoholic and regularly beat his partner ( we called the police on multiple occasions ).
Neighbour didn't appreciate us doing so . He would stand at his door (bottom floor in block flats) and watch your every move , aswell as play music stupidly loud with door wide open. All this was annoying but we and other neighbours just kept complaining until a day dh was cutting the grass with dd , dd came upstairs to get a drink then went back down to go to garden the "neighbour" came out his flat and locked the back door and wouldn't open it . This will sound terrible but we have no idea how long for I was feeding and dh was cutting grass no more than 5 minutes but still long enough to scare the life out of us. He suddenly opened door and let her out when I started walking down the stairs to see what had kept her. She was terrified she has asd . He then locked door again with dh and dd outside.
dh wasn't happy at all and wanted to call police I wish to god I had let him. Dd said he just stood there staring at her nothing else thankfully but it creeped us out.
I put it down to being annoyed at lawn mower and wanting to annoy dh.
A few days later we are chatting with another neighbour and he comes out to watch as always. dh says he better not pull any stunt like that again or he will call police. Neighbour tries to attack dh , dh is holding our then 6 week old :(.
A week later dh is out after his friends birthday drinks on way home he bumps into neighbour ,his friend , and his partner few words are exchanged and once again neighbour tries to punch dh . dh grabs him and they both fall . Dh admits he kicked him in the bum which of course he shouldn't have . Neighbour and his partner are claiming dh attacked him.
police came an hour later took dh away with no money phone etc charged him and kept him overnight. next morning he had over an hours walk home. They at no point asked what had happened or let dh tell them.

We are both worried sick he has been treated as if he is guilty so much for innocent until proven guilty .
Its affected his job and every aspect of our lives.
I never thought I'd be worrying about something like this is he likely to go to jail ? even a conviction makes me feel sick .

Indy, the most non violent person I know would never kick someone's ass, even if he felt threatened. Saying your DH is non-violent is a red herring since he actually kicked someone.

It doesn't matter that you think your DH is non violent (in general), the law is not concerned with his morals but with his actions. Kicking someone is assault. From your OP it sounds like the neighbour did not manage to punch your DH. DH could have left at that stage, but instead he grabbed the neighbour and kicked his ass. In my opinion that is an assault. But obviously the court will have to decide on the basis of the charge and the evidence of the prosecution.

Primafacie that is not quite correct, people react when cornered or threatened. English/Welsh law certainly respects that and also allows for someone to strike first in self defence. Respectfully, none of us truly know how we will react in that situation we just know how we think we would act or how we would like to act. Which is why the law attempts to take a more balanced view. There is a different situation with the Tony Martin case (he was obviously no threat and running away) and someone still in the vicinity with the potential to carry out a violent attack.

Indy If I were you I would speak to several solicitors if you can, do you have free short sessions available there? Under English\Welsh law it is all tied up under one act the Police and Criminal Evidence Act, Scots Law seems to be spread across lots of different acts which makes it harder for me to get my head round.

It is clear that he cannot be charged without being cautioned and having his rights clearly explained to him. It also seems that Scotland has been hauled over the coals for interviewing without solicitors in the past. You have to hunt around, find someone who will explain the law clearly and can go through each step and check procedure has been followed.

I do find it incomprehensible that any case can proceed to court without the suspect being interviewed. The only argument I can find for this is that suspects can lie, well yes they can and do frequently, but they can also provide an explanation that can be backed up with evidence thus saving everyone time and stress, It looks like this has also been questioned by Human Rights groups as being pretty dodgy.

primafacie the neighbour tried to punch dh missed grabbed him and they fell to the ground. Dh got up kicked him and came home as fast as he could . He was wrong to do so but to be honest I can see why if neighbour had got up the attack may have continued . Dh was alone neighbours friend and partner where there he felt trapped and scared . This all happened a few minutes from the pub neighbour drinks in and where all his friends where. Dh has previously been attcked/mugged didn't fight back and ended up with dislocated jaw and concussion. Neighbour beats crap out of his partner she has black eye most days he is a violent thug who if he had a chance would have done damage to dh. Dh was on way home fron his friends with takeaway for me he wasn't "itching for a fight" he sees neighbour everyday .

Thanks again Charlie im going to ring around a few today it is flawed I honestly think if the full story was given it wouldn't have went this far

Does Dh have the right to the police report? Surely the solicitor would need this to confirm if due process was not followed?

If your DP did (as you stated in your previous post) get up and kick the man when he was still laying on the ground it will be difficult for him to say he 'felt trapped and scared'.

Get some decent legal advice.

Scots law is different. I don't know the details, but Cadder case may be relevant. Any criminal solicitor will know of it

www.bbc.co.uk/news/uk-scotland-11622138

en.wikipedia.org/wiki/Cadder_v_HM_Advocate

www.supremecourt.uk/decided-cases/docs/UKSC_2010_0022_Judgment.pdf

In Scotland, you can be prosecuted (ie taken to court) WITHOUT being interviewed or charged by the police.

It's not "unfair" because you may just have messed up in the interview anyway. Plus your solicitor can write to the PF (the CPS in England) to argue that they shouldn't proceed with the case.

OP, you can always be a defence witness.

Cadder is to do with your right to have a solicitor present if you ARE interviewed.

OP, I assume from your username that you are a "yes" voter. Slightly worrying that you don't know there is a separate legal system in Scotland!

What do you mean by they came to your house to sign charge sheets? Unless things have dramatically changed during my mat leave we don't have these in Scotland.

And while I was reading your post I was wondering if you were in Scotland as I wouldn't normally expect a person arrested to be interviewed when there was a sufficiency of evidence.

Our caution is different and doesn't make a requirement for a person to state at that point a defence which they later rely on.

kirstin of course I know there is separate legal system I just didn't realise how different , I haven't any previous experience with this .
Username is actually not politically motivated dd2 Is indie .

Nicknacky - sounds like a copy complaint got served on him. That has the charges on it. Or maybe a citation (aka undertaking) for a court hearing.

OP, look up the Law Society of Scotland's website and find a criminal solicitor near you. Check they do legal aid if you need that.

Don't panic though. Hardly anyone gets the jail for a first offence. And anyway, only about 1 in 10 even get to trial never mind actually convicted.

How could I be a witness , would that be to neighbours previous attack attempt ?

Phew, glad to hear it, Indy!
:-)

I have had alot of comments on her name timing was terrible be glad when it's done tomorrow.

kirsten they came only three days after so I wouldn't expect it to be a copy complaint so quickly for a (presumably) common assault? Most either are released at the time on undertaking or receive a date further down the line. (Certainly in our area).

Ah, I thought you witnessed the incident from your OP. But if you're just repeating what DH has told you then I'm not sure.

FWIW, he IS innocent til proven guilty. Be GLAD he wasn't interviewed as that just gives you an opportunity to say the wrong thing!!!!

Don't bother worrying til his solicitor tells you to!

Oh and if it was a copy complaint the op would have a court date and I'm pretty sure she said she didn't?

:-) to all

Yep, it's probably an undertaking then. That means they haven't officially even decided to prosecute, OP! Sometimes you get to court and there is no complaint.

Op, was he given a copy of the paperwork he signed?

Nicky - she says in OP that he has court in "a few months time"...

I just noticed that as well. Unlikely to be and undertaking then. I just got the impression from the op that this had recently happened, but I could be wrong.

Yes, an undertaking you normally have court in about 3-4 weeks.

Complaints give a court date a few months in advance.

Sounds like a storm in a teacup to be honest! He's not even on bail from the sounds of it so they're obv not taking it that seriously!

OP: just check there is nothing on the paperwork about staying away from the bloke in question.

One of the probs answering these Qs is that ppl don't know the difference between being: accused/charged/prosecuted/admitting/convicted of a crime. Which is fair enough if not legally qualified.

Also I think her point is that he is being TREATED as if he is guilty.

How is it affecting his job, OP?

He has not been charged without being questioned. That is untrue.