Understanding The Custodial Threshold

[dt_84]

I am currently being investigated for making off without payment and a racially aggravated sec 5 offence.

I won't go into extensive detail but it revolved around a dispute over a minicab fare which, whilst in principle pre-agreed, I felt was too harsh given the service received. I offered a lower amount for the service, this was rejected, I left without paying. The fare was less than £20.

There is a further allegation that I used a mocking accent in the course of the argument.

I am hoping no further action will be taken however that does not stop my mind wandering to frankly terrifying places. If it does go to court I will deny the sec 5 entirely and will argue that as I offered what I believed to be a reasonable amount for the service I received and had this rejected, that I was not acting dishonestly.

I have no criminal history whatsoever so this would be my 'first offence' if it was to go that way.

Can anyone give me an indication as to the likely punishment in such a case please? I am going round in circles in my mind and getting myself in a truly horrible state.

[Buenchico]

An offence under Section 3 of the Theft Act 1978 ('making off without payment') is theoretically punishable by a custodial sentence but the chances of that happening for a first offence, where the sum was less than £20, are completely NIL.

Offences under Section 5 of the Public Order Act 1986 (as amended by Section 57 of the Crime and Courts Act 2013) can't result in a custodial sentence.

If you had provided the minicab driver with your name and address, and invited him to sue you, your defence of 'not acting dishonestly' might have stood up in court. Assuming that you didn't do so, I'd strongly advise you to plead guilty to the Section 3 offence (because the court will find you guilty anyway).

With regard to the Section 5 allegation, in order to obtain a conviction the CPS must prove that your words or actions were threatening, abusive or disorderly AND that they were likely to cause harassment, alarm or distress. It is not a criminal offence simply to swear at someone and (since the 1st February, when the law was changed) it's not illegal just to insult someone even if that insult is of a racial nature and is likely to cause harassment, alarm or distress.

[dt_84]

Buenchico - thanks for your prompt response.

I had wondered about the wisdom of challenging the dishonesty of the act as a defence and it seems you have indicated that what I feared might be the case. I fully accept that I eventually left without handing over any money, I was hoping however that by having attempted to pay an amount that I deemed to be entirely reasonable, that it would show I wasn't just trying to 'leg it without paying' shall we say.

I suspect I might be better holding my hands up and accepting I was foolish to have not handled the dispute in a better way and apologising accordingly. Any thoughts on what type of punishment I could expect in those circumstances?

As for the Sec 5, the claim is that in the course of the conversation with the driver, I mimicked his accent. They are not saying that the words used were the offensive part but that the alleged mimicking of a distinctively foreign accent was.

As I said, that claim is untrue and as there were witnesses in the car I hope it will be NFA'd. In principle however, would you say that such an act would meet the requirements for racially aggravated sec 5?

[Buenchico]

Mimicking an accent does NOT (as I see it) constitute an action which is likely to lead to 'harassment, alarm or distress'. It might well cause offence but causing offence is NOT a crime. Further, I can't see how mimicking someone's accent is 'abusive' (and it's certainly neither 'threatening' nor 'disorderly behaviour'). It might be regarded as 'insulting' but that word was removed from the statute on 1st February. So the Section 5 allegation appears to fall down on two counts.

>>>Any thoughts on what type of punishment I could expect in those circumstances

Just a fine. See page 79:
http://sentencingcouncil.judiciary.gov.uk/docs/MCSG_Update9_October_2012.pdf

[Orderlimit]

Here we have a fine example of the problems caused by The Macpherson Report, which defined a racist incident as “any incident which is perceived to be racist by the victim or any other person”. This very open definition is often used and abused by complainants in order to gain advanced services from the police.

The situation described here is very common whereby certain taxi-drivers report all fare disputes to the police expecting them to act as a free debt collection service. A lot of the reports are civil matters but some drivers won't accept this and then go on to claim they were racially abused, ensuring they get a premium service. (most now know just to claim racial abuse in the initial report).

Anyway, can you confirm how the police identified you as the customer, did they arrive at the scene or did the driver have your details?

[dt_84]

I was identified as the customer by the picking up point, a record of which was kept on the minicab company system. It was fairly easy to identify me by asking at that location.

[Orderlimit]

I take it you have been formally interviewed dt?. If so, did you manage to get in the fact that you have left, or are aware that your personal details are heldby the company, therefore helping to push this towards a civil matter?.

The racial allegation is nonsense (although it fits the crazy definition of a racial incident), but you have a witness who will hopefully speak to the police.

[dt_84]

Yes I was interviewed, I gave a full and frank account of what happened, and I accepted that I had left, and explained why. Whilst it was easy to identify me from the location, they didn't have my 'details' on record per say which I guess is why it isn't being seen as a civil matter.

I am very keen not to come across as obstructive in any way and not to look like i'm trying to wriggle out of anything. If it does go to court I want to be in the best position to secure a fine rather than anything more serious and so I think Buenchico's advice of pleading guilty and accepting that it was not the best way to handle the dispute may be the safer option.

I have never had any exposure to anything like this before and I tell you all the uncertainty and fear really is a horrible experience.

[Orderlimit]

"If it does go to court I want to be in the best position to secure a fine rather than anything more serious".

As per Buenchico's first post, the chances of a custodial sentence are nil, even a Racially aggravated section 5 is what's known as a summary only offence with the maximum penalty being a fine. (theft offences can not be racially aggravated).

[dt_84]

Thank you both very much for your responses, I appreciate your time. I would just like to ask, if you wouldn't mind, if you could expand slightly on how tightly magistrates/judges are restricted by the sentencing guideline sub-categories within an offence.

For example, I feel that the allegations against me fit into the less serious of the two sub-categories (that being a sentence range of Band A fine to high level community penalty). Is it commonplace that a magistrate would move outside of that bracket into the more serious bracket when sentencing or do they generally stick within the range outlined. Is the range designed to accommodate a number of aggravating and mitigating factors hence the starting point in the middle?

I apologise for asking yet another question however I am really very daunted by this whole experience and I am just trying to ensure my expectations moving forward take all possible scenarios into account.

Thanks again.

[Buenchico]

>>>Is the range designed to accommodate a number of aggravating and mitigating factors hence the starting point in the middle?

Yes.

>>>Is it commonplace that a magistrate would move outside of that bracket into the more serious bracket when sentencing or do they generally stick within the range outlined

Magistrates sit as a panel of three. They're lay people, not lawyers, so they have a Legal Adviser (formerly known as the Clerk of the Court, which didn't really make it clear that he/she is a qualified lawyer) to guide them. The fact that the magistrates have to come to a joint decision usually means that, even if one magistrate wants to stray outside of the guidelines, a decision within the official guidelines is normally arrived at.

[dt_84]

Thank you again for your explanations, they are most helpful.

[Buenchico]

Thanks for your replies.

Just an additional thought (although it doesn't actually change anything above). If you get to court and find that there's only one person on the bench, he/she won't be a magistrate. He/she will be a District Judge who is a qualified lawyer with extensive experience. (DJs can sit on their own, in place of a panel of three lay people, in a Magistrates Court). Unless there were really extraordinary grounds to stray from the official guidelines, a DJ's sentencing will always conform to them.

[Orderlimit]

I do get what you mean Barney, but this sort dispute where money was offered is very borderline civil (in my opinion), the poster is stating the 'racial' allegation is false and that is common !!

[barney4444]

Just trying to be fair minded here, a price was agreed for the journey home and then although the service was carried out he decided that it was now worth less than was agreed and so in the end walked off without paying anything, try doing that with easy jet,ryanair etc!!

[dt_84]

The reason I said that the price was agreed in theory is because I wasn't the one who agreed it. It was agreed by the person who booked the cab over the phone, he got in another car for the journey. At the point I offered the price I did, I did so not knowing what the original price had been. Indeed when the offer was refused I still didn't know the original price. It's not as straight forward as me just changing my mind, hence why I initially asked about the dishonesty/honesty defence.