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Jo C.
Jo C., Barrister
Category: UK Law
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Experience:  Over 5 years in practice.
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My son was involved in a nightclub fight defending one of his

Resolved Question:

My son was involved in a nightclub fight defending one of his schoolfriends. He was kept in overnight as were a number of others. He was shown CCTV footage during his interview the next day and agreed to accept a caution. However on the written caution, the police have stated that he fought his friend,instead of the stranger who actually was involved. I think this mistake may have happened firstly because of some confusion on the part of the officer between the youths who were involved and secondly because my son said the officer interviewing him spoke very quickly and so my son misinterpreted what was said.

His friend would be willing to confirm my son did not assault him. My son has just started at Uni and is a good character who has never done anything like this before. Do you think it would be worth trying to appeal against the caution on the grounds that it was inaccurate? Or could it lead to more trouble?
Submitted: 1 year ago.
Category: UK Law
Expert:  Jo C. replied 1 year ago.
Hi

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Why did he accept the caution if he denied the offence?
Customer: replied 1 year ago.

For Jo C


 


Hi Jo


 


He didn't actually deny the offence, as I think the CCTV footage confirmed that he had hit someone as part of the overall brawl.


 


I was meaning more that the actual document he signed (The caution itself) is inaccurate as it has down the wrong name for the victim. The person it says he assaulted is my son's friend, who certainly was not assaulted by him. Does this mean the caution it is invalid? And if so, what would there be any point in trying to get it nullified on those grounds.

Expert:  Jo C. replied 1 year ago.
No, there's no point and it would be a really bad idea.

There is probably some explanation for this anyway. If he hit this person as part of a brawl then thats an assault. There's no defence in saying it wasn't deliberate because he was trying to strike somebody else. That is just transferred malice.

Probably the friend wouldn't support a prosecution so the caution refers to the stranger.

There is no appeal from a caution. The justification for that is that ultimately a caution has to be accepted by the detained person. Such a person is always free to refuse the caution and invite them to charge.

All you can do is judicially review the decision to offer a caution. The criteria is just that its a minor offence and the person admits it. I think probably that you can already see there are just plain no grounds here. They had CCTV footage of him committing the offence and anyway he must have admitted it in interview.

Even if he did succeed at JR, and there is no chance, all the High Court would do is refer the matter back to the police who would get CPS to charge it in reliance on what he said in interview and then he would get a conviction not a caution.

If person A strikes out at person C but misses and hits person B, then that is assault. There is no defence in saying that it wasn't deliberate because the assault was - it just struck the wrong person.

He might find the protection of freedoms act causes this to drop off his record after 6 years. Parliament are not being clear at the moment over whether minor offences of violence are going to be included but they were considering it at least at one point.

I'm sorry this isn't the answer you wanted but it is the position that you face and I have a duty to inform you truthfully.

Hope this helps. Please let me know if you need more information.
Customer: replied 1 year ago.

For Jo C


 


Hello again Jo


 


Thank you very much for that comprehensive response.


 


 


I had supsected it may make things worse to appeal, but was rather hoping the written caution he has received would be rendered invalid due to its inaccuracy.


 


And yes, as an anxious mum, I am hoping it will not affect him in the future. I know it is not the same as a criminal record, but it could show up in an enhanced CRB at the moment . However I've read the Home Office may have plans to change the laws relating to what people have to disclose when applying for a job, so hopefully, by the time he's graduated, the system will have changed.

Expert:  Jo C. replied 1 year ago.
Its not inaccurate. It just refers to the assault on the stranger probably because his friend wouldn't make a statement.

If there is a brawl on CCTV then they could always charge affray anyway. Its slightly surprising they didn't. They are reducing their use of the public order act now.

The Protection of Freedoms Act will come into force fully in 2014 which will cause some cautions to drop off records after 6 years. Parliament won't be clear over whether offences of violence will be covered yet. I think in the long run they probably will as some common assaults are very trivial but it might not be by 2014. They have been very inconsistent upon this point.
Jo C., Barrister
Category: UK Law
Satisfied Customers: 65360
Experience: Over 5 years in practice.
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