Common Assault Dv Query

[dizzi_rascal]

I have a question as a victim of DV. my relationship with my now ex has always been a case that he has been emotionally manipulative, but I never saw this coming. A few weeks back I came home after a few drinks with a friend. My ex had been messaging me throughout the day and although he told me he was working till 8pm he has been sighted in pubs throughout the day. When i came home he was having a tantrum about the friend that i had been with, he had been trying to cause a grudge between me and my friend as there was a previous arguement he had with him but i tried to make amends with my friend which he didn't like. When i got in he was drunk, I had two beers in 3hrs with a meal so can remember everything that happened (unfortunately). I went to the bathroom to get ready for bed and he kept coming into the bathroom and arguing with me about my friend, at 1 point he was shouting in my face so i pushed him away from me, he had previously had an accident from 5 days back where he had fractured his ribs, but my ex is expert at playing victim. he looked at me in pain and i told him i didn't care and to leave me alone, and shut the door in his face, he completely turned, he kicked the door in, pushed me off my feet and into the bath in which i smacked my head on the tiles, i looked at him in shock and asked him 'what the hell' in which i literally saw the devil in his eye. i tried to get out the bath but as i picked myself up he punched me down, he had two hands on my throat at one point trying to strangle me which luckily i managed to get out of, inbetween he punched me between 8-12 times at a guess. i lost consciousness for about a few seconds but survival mode kicked in when i kicked him to the other side of the bathroom. i came out with 2 black eyes, a split lip, and many facial bruises. The kick managed to allow me enough time to get out of the bath, i picked up the first thing i could find (a cactus) and tried to stab him with that to get out (which failed dramatically as it fell onto the floor), I then tried to throw the plantpot at him but due to my dizziness at this point it just hit the floor but he seemed to have beaten me to his satisfaction by this point. I fled from the house and called the police, my now ex disappeared and I haven't seen him since.He handed himself in finally after 1.5wks in another county, and has been charged with common assault, which in my opinion seems so minor when i thought i was a gonna.He has of course pleaded not guilty,and claimed the force i state isn't what happened and claiming self defence with his very convincing pitiful face(no doubt the injury from a week previous will have been me from the incident).I have to go to trial soon, I have evidence to back up his previous injuries,It has since been confirmed that he was charged with battery also back in 2001, which i was unaware of, this is against his ex which he got community service for (in which he never did). I'm terrified he is going to get let off, i still feel there should be a higher charge for this as when i went to the hospital they asked me back a wk later as on my x-ray it looked like he had fractured my skull. a wk later they confirmed due to the swelling on the right hand side of my face that the left hand side looked flattened but luckily i have no long term damage(apart from the images in my head of him turning into a monster).in past experience what would he rec for this roughly? i am going to face him at court but I'm also terrified my name is going to be blacked with lies which it seems he lives his life in.I wear my heart on my sleeve and he knows a lot of information about me in which no doubt he will twist to his satisfaction too.should i be worried? can i be charged for pushing him first?and also do you think theres any way they may change the common assault to a ABH which i feel is fair (although going by the night it should of been attempted murder in my eyes) :( advise would be much appreciated.

[EDDIE51]

Get a solicitor,far too complicated to sort out on here.
If you were as badly hurt as you say that is more than common assault, but you fought back and assaulted him. You have to get a solicitor.

[dizzi_rascal]

i havent been charged with anything so no assault has come to me as yet, what i meant sorry is could this be twisted into me getting a charge on the court date. i kicked him enough to wind him and get him off me after been battered and strangled for 3-4 minutes but nothing more! ive never been to court and have no idea what to expect.

[EDDIE51]

You are allowed to defend yourself by using 'reasonable' force.
If you are charged then 'self defence' will be your response to the charge.
Each case is decided on it's own merits there is no specific definition of 'reasonable force' . From what you say I think you did act reasonably but you must talk to a solicitor and make sure your side of this gets heard.

[New Judge]

You are in a difficult situation.

Leaving aside for a moment the choice of charge (i.e. Common Assault or something more serious) if the case goes ahead and a trial is held you will simply be a witness for the prosecution. You have no right to legal representation in those proceedings and the advocate who prosecutes the offence will not, strictly speaking be “on your side”. You will be there solely as a witness to help secure a conviction. You will certainly not be able to consult with him prior to the trial nor will he be able to offer you any help or advice other than to acquaint you with the trial process to be followed in the court. So from this aspect there is absolutely no point in you engaging your own solicitor.

Now, the choice of charge. From your description the charge of Common Assault does seem unduly lenient. This document explains the criteria for the various charges. See the section “Common Assault vs ABH”:

http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/#common_assault

Defendants are often charged with the more serious offence and that decision may be reviewed and a lesser charge substituted (especially in return for a guaranteed guilty plea). But there is no provision to review the choice of charge upwards. I should think it can be easily argued that an injury to your head where the medics suspected a fractured skull can be classed as “serious” (even if the eventual diagnosis revealed no fracture). But you are where you are and the lesser charge has been preferred.

Victims have the right to challenge a CPS charging decision when they decide not to prosecute at all:

http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/

However, I may be wrong but as far as I know, they have no right to challenge the choice of charge. So from this aspect as well, I’m not sure there is any mileage in engaging your own solicitor.

[New Judge]

But I forgot to add that none of my answer covers the situation where you may be charged yourself. Then a solicitor is certainly to be advised as defending an assault charge on the basis of self-defence (certainly in the circumstances you describe) is not as straightforward as it may sound.

[EDDIE51]

NJ that is the reason I advised getting a solicitor. As I read it dizzy rascal is worried that she also may be charged with assault for defending her self.
A solicitor will be able to advise far better than we can.

[New Judge]

Quite so, Eddie. But no point in consulting a solicitor unless and until she may face charges.

In my experience victims of DV are seldom on the wrong end of charges themselves just because the alleged assailant suggests "she hit me first".

[dizzi_rascal]

thank you eddie and new judge, i feel my evidence of the incident are very clear who iniciated the assault, but at the same time of course im worried this guy will try and drag me down with him as like you said of course he will have someone who isnt 'on my side' also. i have a lot of evidence ranging from photos of the event, messages from before the argument and after, emails to his employer confirming he had fractured ribs from before this incident just incase he trys to pull that card out too. when i provide evidence would they maybe take this into consideration for a higher charge or does it usually settle at what the CPS originally agreed. can my criminal record be brought forward too.. i have a charge for possesion of a weapon (pepper spray) which i didnt realise was illegal last year also?

[New Judge]

“…when i provide evidence would they maybe take this into consideration for a higher charge or does it usually settle at what the CPS originally agreed.”

You will not have the opportunity to provide such evidence. In any case the sole difference between Common Assault and ABH is the level of injuries caused. There seems to be no dispute over that and the evidence you are speaking about does not relate to that. He has been charged on the basis that the evidence available and that will not be changed.

“…can my criminal record be brought forward too..”

There are circumstances where a witness’s criminal record can be put before the court. However the purpose of doing so is to discredit their evidence in the current case and the offence you are talking about seems unlikely to do that. Furthermore the defendant then lays himself open to having his own record laid before the court and that is often far more damaging.

[dizzi_rascal]

thank you new judge, i guess if they had been any worry over me getting charged it would of happened by now as this was over 2 months ago? in regards to an incident like this what would you expect minimum and max charge would be? i only know of 2 things on his CRB already and thats battery against his ex 13years ago and a drink driving charge.. also how much difference will a VPS make? many thanks for your help

[EDDIE51]

Charge? do you mean sentence?
If this is common assault the sentence is almost certainly a low level community service order. But as both NJ and I have said common assault seems too lenient. From what you say it looks like ABH (or even GBH) ,but the Police/CPS decide on the charge.

[EDDIE51]

Looked up the sentencing guide lines. The maximum sentence for common assault is 26 weeks custody. Range is discharge to 26 weeks.
Remember there is a 1/3 reduction for an early guilty plea (drops it to 16 weeks)then automatic release at the half way point of sentence. So even if he got the maximum sentence for common assault he would only do 8 weeks. Then he may get early release on 'tag' (home detention curfew) for the last 4 weeks so only 4 weeks jail. I still think a community sentence is the most likely.

[dizzi_rascal]

Yeah it is too lenient but what can I do hey?! Frustrating that he'll only come out with another community service he probably won't abide to. But many thanks for your help

[dizzi_rascal]

Hey there

If anyone can help with this updated on http://www.theanswerbank.co.uk/Law/Question1486302.html
It would be much appreciated :-)