When Lawyers Get it Wrong
“I’ll kill you, motherfucker!”, threatened the Defendant to his housemate. Why? The age old housemate conflict of whose turn it is to take out the trash. Read on to find out what this led to.
As any other hardworking student immigrant’s daily routine goes in the UK, the Complainant returned from a long day’s work. Beelining straight to his four-walled little safe space, what he has to show for his home in a foreign land, strategically avoiding any contact with any of the many other lodgers in the same house. Like many South Asian men, he was taught to always strive to be an all time grade A student, but never quite being taught to clean up after himself. Growing up in a household where having maids was the norm, life in a UK was proving to be harder and lonelier than what he pictured it to be in his UK degree aspirations. A PhD student cooking up all sorts of brilliant concoctions in the lab, but never remembering to take out the trash. The Defendant, another South Asian man, took notice. He was always taking it upon himself remind the Complainant to take out the trash when it was his turn. The Complainant always needed reminding several times before he would actually take out the trash. Only normal then for the Defendant to get irate and want to take the Complainant out over this? Some may say he even deserved it?
When the Complainant was quietly minding his own business in his own room that he rents out in a house shared among other, watching Netflix on his tab with headphones on, he heard a loud thud. He thought this sounded like someone kicking his door. He opens the door ever so slightly to see what the commotion is all about. It’s his housemate asking him to come out. He’s clearly angry. Words are exchanged. The Complainant finally comes out of his room. Other housemates emerge from out of their rooms. The confrontation gets heated, threats are made with the most colourful swearwords that can be dug up in a language that isn’t your first language. The other housemates break up the altercation. Complainant goes back to his room contemplating his next move fearing for his safety in the house. He is advised to call the Police. The Police visit him at his university the next day and arrest the Defendant. The Defendant says the Complainant started it, Complainant says the Defendant instigated everything.
As much as many would say the Complainant probably deserved it, saying things like, “I’ll kill you, motherfucker”, isn’t quite the acceptable language to use in a civilized society. This could fall under the crime of threat to kill under section 16 of the Offences Against the Person Act 1861. This crime is an indictable offence punishable with up to 10 years in prison and considered so serious that it can only be dealt with at a Crown Court.
For whatever reason, potentially for the evidence against the Defendant not being strong enough, the Police/Crown Prosecution Services (CPS) decided not pursue the threats to kill offence, but rather brought the charge of intentional harassment, alarm or distress under section 4A of the Public Order Act 1986.
The legislation, the Public Order Act 1986, under section 4A (1), says that a person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.
The penalty for this offence is imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.
The Defendant was released from detention the next day and the trial date was set after he pleaded not guilty to the offence. On the trial date, the prosecution opened the case, the Complainant was called to give evidence, CCTV footage was shown in which the altercation between the housemates could be faintly heard, and the defendant gave his evidence. Both sides gave their closing arguments, Prosecution focusing on the impact this incident had on the Complainant and the Defence Representative arguing that the Defendant was simply frustrated over the Complainant’s behaviour.
Unfortunately, both lawyers seemed to have failed to read the entire section under the Act where the following proviso applies:
Just below the above quoted sub-section of section 4A, it states under sub-section 2, that an offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.
This could not possibly be right, could it? It’s not an offence if the words or behaviour used was used by a person inside a dwelling directed to a person also inside the dwelling. This is right because the Public Order Act only deals with offences that take place in the public and not in private. If the lawyers had read the proviso this case could have made for a very interesting argument over what may or may not be considered a dwelling. It could have been argued that the Complainant was outside his dwelling being in the communal corridor when the incident occurred. However, this was not the case.
After all the arguments were made and the Magistrates retired to deliberate their decision, it was one of the Magistrates who inquired about the proviso, and ultimately, under the circumstances, it was found that the Defendant had no case to answer as the proviso meant that under the section that he was charged there was no offence committed, and the matter was formally dismissed with the Defendant being found not guilty.
Remember, the Defendant had already served a night in custody upon being arrested, so it could be said that he served his time. But exactly how did this come to happen? While some may say the Complainant deserved it, the Defendant did do something he could have well been given a criminal conviction over, which would have impacted his future career prospects and his immigration status to remain in the UK. Luckily for him, the lawyers, at every stage, including his own lawyer, made the mistake of overlooking the proviso and not bringing the right offence to charge him with.
Soon after the case was dealt with, one of the Magistrates commented that his son is due to go off to university and live in shared accommodation. He will definitely make sure his son is taught about the etiquettes and common courtesy of living in a shared house. If I had to guess, I’d say the Complainant and defendant are no longer housemates. I bet he will never again forget to take the trash out. Lesson learned.
Leave a comment