By dave_uk - 3 Jun 13 12:46 AM
Hi, I am new to the forum, i have an issue that's been bugging me for a long time, i haven't actually been abroad anyway but i not just feel lost about it all with my common assault conviction (section 39).
I am nervous about going anyway, but with having this over me as well makes it feel even worse as i am very scretchy about where i can / cannot go without any issues.
my conviction is spent after this September time, can't remember the exact date, does that matter at all? i know mine is classed as spend after 5 years but wondered if once spend do i not have to declare it for any holiday i go on?
the main two questions i have as well as the above is going to the below places (both with or without a spent conviction, as i don't know the date this year i would be going)
Am i right in assuming i can go anywhere in Europe without having to worry about letting them know?
And also is Norway classed in the same way or would i have an issue going there? i know Iceland is in the EU but i don't think Norway is, can anyone let me know on both things?
Thanks
Dave.
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By RG - 18 Sep 11 9:58 AM
Dave_UK,
It is sad. Sec 39 is the lowest of the lot in the convictions for assault. Its a summary offence and you need not mention it. Its far less serious than ABH and GBH and Battery as such wasnt a crime until it got merged with Assault ,giving the jobs worth more work by having to keep more records and an opportunity to throw the book at more people.
Now in reality a battery happens everywhere (not just a chicken coop). If you raise your voice when your kid has not done his homework, the social services could intrepret it as a threat or putting fear of violence in the child. If you answer back aloud to to your spouse sec 39 could be invoked. The list is endless in this socialist kingdom.
And the sentences vary according to the whims of the magistrates (if he had a good night with his lover, you might get off lightly). They throw fines, suspended sentences, community orders, conditional discharges anything they fancy without uniformity.
The ROA 1974 under which you intrepret it as spent is only applicable to UK where they will keep your DNA for their grandchildren and will keep popping questions till you die. Other countries are not bothered so long as you have not committed any serious criminal acts that warrant them being notified like say treason, espionage, serious pervert stuff etc
So my friend we are in the same boat. I have lost months of sleep thinking about this crap in the same lines as you. But I researched and researched and finally have found equilibrium. This is not a crime of moral turpitude. As such you need not allow anyone or anything to bully you into thinking that you are a criminal. Creating class distinctions and thriving upon it is a British passtime from time immemorial. Apologies for the long banter. Go as far as the wind takes you without having to worry about sec 39.
cheers
RG
PS: I presume they threw a fine at you or a community sentence for your trouble.Post Edited (RG) : 03/06/2013 07:11:20 (GMT+1)
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By dave_uk - 3 Jun 13 12:46 AM
Yes, i got 160 hrs community service and a fine.
the charge sheet said section 39 on it, can that change at all in court or has that got to be what they sentence you with?
i just hope that it stays the same and couldn't have changed.
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By RG - 18 Sep 11 9:58 AM
Dave,
No they cant change that. Enjoy your travel.
cheers
RG
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By dave_uk - 3 Jun 13 12:46 AM
RG, thanks a lot for your replies you have been very helpful.
Can i take all that as i will be not questioned about my past at all if i go abroad? would that also inc usa?
and can you confirm if when your conviction is spend has any effect on going abroad?
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By RG - 18 Sep 11 9:58 AM
Dave_UK,
No worries! As I said spent or unspent has no relevance in USA or abroad. In Europe say France once spent you have a clean slate as per their rules. ROA is specific to UK. The legislation has its own rules within UK, for instance for scotland. Do not fret about the aberration and proceed normally.
cheers
RG
PS: To give you some indication, I was apprehensive like you. My US papers sailed through. Note ROA changes have still not come into effect and from the outset my Immigration solicitors advised me not to give any monkeys to these donkeys and their rules.
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By caterpillar - 6 Jan 12 6:36 PM
Just my 2 'cents'. Any Assault under UK Law upto and including a Section 20 would not be considered a crime of moral turpitude under US Law since the following applies:
Assault (simple) (any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly)
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By Anonymous - 12 Apr 13 3:50 PM
caterpillar said...
Just my 2 'cents'. Any Assault under UK Law upto and including a Section 20 would not be considered a crime of moral turpitude under US Law since the following applies:
Assault (simple) (any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly) * Reply Now Deleted * 
There are no mistakes in life, only lessons.Post Edited (Spiritus) : 27/06/2013 18:24:45 (GMT+1)
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By caterpillar - 6 Jan 12 6:36 PM
I doubt anyone has the expertise within this forum to add clarity to this point.
Furthermore, the ESTA form does not ask for details of "ANY" arrest or conviction as you are stating.
What the ESTA actually asks is the following:
Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?
1). Have you been arrested for a crime and/or convicted of a crime involving moral turpitude?
2). Have you been arrested and/or convicted of a crime relating to controlled substances?
3). Have you been arrested and/or convicted of two or more offences which resulted in more than 5 years confinement (imprisonment) when added together?
4). Have you ever been a controlled substance trafficker? (Ignore this question unless you hold convictions thereof!)
5). Are you looking to entire the USA for criminal purposes? (Obviously not!)
Break down the question properly and the only grey area is "moral turpitude". For definitive advise, I suggest you contact a lawyer experienced with immigration. Or perhaps vigerously research the point on the internet. I would seriously doubt a common assault (lowest form / no mens rea / no weapon) would constitute "moral turpitude".
Remember that only a Sec. 18 under UK law allows the formation of necessary intent (mens rea). What is potentially dubious would be a Sec. 20 conviction whereby the CPS has accepted a plea and could possibly be triable as a Sec. 18.
I assume that the embassy in London and the ACPO certificate only states the offense/conviction and disposal of conviction, and the particulars of your conviction are for you to disclose under interview.
I also think you are getting mixed up between the consular / embassy site for London whereby it does state "any arrest". Can you answer the questions above with confidence? If so, there is no reason for you to consider visiting the embassy since you are answering within their guidelines.
FWIW, I have attended the US Embassy in 2008 and obtained a 10 year Visa, as I held a caution for possession of a controlled substance. The process is daunting but fairly straightforward.
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By caterpillar - 6 Jan 12 6:36 PM
A point to consolidate on my previous post...
Section 18 ... Mens rea - "specific" intent
All assaults are of "basic" intent
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By Anonymous - 12 Apr 13 3:50 PM
| Category | Crimes involving moral turpitude | Crimes not involving moral turpitude |
|---|
| Crimes Against Property | Fraud: - Making false representation
- Knowledge of such false representation by the perpetrator
- Reliance on the false representation by the person defrauded
- An intent to defraud
- The actual act of committing fraud
Evil intent: | - Damaging private property (where intent to damage not required)
- Breaking and entering (requiring no specific or implicit intent to commit a crime involving moral turpitude)
- Passing bad checks (where intent to defraud not required)
- Possessing stolen property (if guilty knowledge is not essential)
- Joy riding (where the intention to take permanently not required)
- Juvenile delinquency
- Trespassing
|
|---|
| Crimes Committed Against Governmental Authority | | |
|---|
| Crimes Committed Against Person, Family Relationship, and Sexual Morality | - Abandonment of a minor child (if willful and resulting in the destitution of the child)
- Adultery (see INA 101** repealed by Public Law 97-116)
- Assault (this crime is broken down into several categories, which involve moral turpitude):
- Assault with intent to kill, commit rape, commit robbery or commit serious bodily harm
- Assault with a dangerous or deadly weapon
- Bigamy
- Paternity fraud
- Contributing to the delinquency of a minor
- Gross indecency
- Incest (if the result of an improper sexual relationship)
- Kidnapping
- Lewdness
- Manslaughter:
- Voluntary
- Involuntary (where the statute requires proof of recklessness, which is defined as the awareness and conscious disregard of a substantial and unjustified risk which constitutes a gross deviation from the standard that a reasonable person would observe in the situation. A conviction for the statutory offense of vehicular homicide or other involuntary manslaughter requires only a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly)
- Mayhem
- Murder
- Pandering
- Prostitution
- Rape (including "Statutory rape" by virtue of the victim's age)
| - Assault (simple) (any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly)
- *******y (the offense of begetting a ******* child)
- Creating or maintaining a nuisance (where knowledge that premises were used for prostitution is not necessary)
- Incest (when a result of a marital status prohibited by law)
- Involuntary manslaughter (when killing is not the result of recklessness)
- Libel
- Mailing an obscene letter
- Mann Act violations (where coercion is not present)
- Riot
- Suicide (attempted)
|
|---|
| Attempts, Aiding and Abetting, Accessories and Conspiracy | - An attempt to commit a crime deemed to involve moral turpitude
- Aiding and abetting in the commission of a crime deemed to involve moral turpitude
- Being an accessory (before or after the fact) in the commission of a crime deemed to involve moral turpitude
- Taking part in a conspiracy (or attempting to take part in a conspiracy) to commit a crime involving moral turpitude where the attempted crime would not itself constitute moral turpitude.
| N/A |
|---|
| From the United States Department of State Foreign Affairs Manual |
There are no mistakes in life, only lessons.
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By Anonymous - 12 Apr 13 3:50 PM
A conviction for a crime involving moral turpitude (CIMT) causes a person to be inadmissible to the United States under section 212(a)(2)(a)(i) of the INA (Immigration and Nationality Act). There are petty offense exceptions to this rule, but these exceptions do not change the meaning of the question on the Visa Waiver Program or on the visa application form, and cannot be self-certified. A controlled substance violation causes the alien to be inadmissible to the United States under section 212(a)(2)(i)(II) of the INA. They are two different sections of the law. A controlled substance violation is a CIMT. The immigration administrative proceeding does not use a controlled substance violation as a CIMT. A visa waiver program applicant admissibility is determined at the port of entry and they are subject to section 212(a) and 217 of the INA
Visa Waiver Program
The first question on document I-94W for those visiting the U.S. on the Visa Waiver Program asks:
Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been controled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?
Little guidance is provided to the traveler as to which offenses are included in the definition; however the Web site of the U.S. embassy in London states that a visa is required for anyone who has ever been arrested or convicted for any offense.[8] This appears to be at variance with the question on form I-94W and information supplied by the U.S. Department of Homeland Security, as there are many offenses that are not considered to involve moral turpitude
U.S. government guidance on determining moral turpitude
A definition of moral turpitude is available for immigration purposes on the United States Department of State website.
For offenses (or arrests on suspicion of such offenses) occurring outside the U.S., the locally defined offense must be considered against the U.S. definitions, and in such cases it is the definition of the offense (as defined in the appropriate country) which is considered for immigration purposes, and not the circumstances of the individual's actual case.
Whether a state law offense constitutes a crime involving moral turpitude for federal immigration purposes is decided on a statute by statute basis, because each state statute might cover a different range behaviors, some of which may not necessarily involve moral turpitude under the Federal definition. For a good example of a criminal statute that seems like it would categorically involve moral turpitude, but actually does not because the statute covers some behavior that does not involve moral turpitude, see the Ninth Circuit case Castrijon-Garcia v. Holder, No. 09-73756 (9th Cir. 2013) (simple kidnapping under California Penal Code § 207(a) is not a categorical crime involving moral turpitude).
There are no mistakes in life, only lessons.Post Edited (Spiritus) : 27/06/2013 18:23:24 (GMT+1)
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By Anonymous - 12 Apr 13 3:50 PM
Greece look's like a better option this year !
There are no mistakes in life, only lessons.
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By caterpillar - 6 Jan 12 6:36 PM
As mentioned elsewhere, there is no way of their immigration checking you out unless...
1). There is an international arrest warrant issued against you.
2). An individual subject access request is made.
Obviousy take your case on it's merits, have you got one offense against you?
If the OP is unsure still and only going on holiday, just wing it. Spoke to plenty of people inside who are habitual criminals and travel to USA a lot.
The guidelines are terrible.
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By Anonymous - 12 Apr 13 3:50 PM
Or, you are picked out by immigration for some un-known reason. We all know that a subject access request can be made in minutes, and this can be done from anywhere in the world.
I am sure that some type of cross referencing is made via the ESTA process anyway, because if there was an arrest warrant out on you wouldn't get cleared to enter.
There are no mistakes in life, only lessons.
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By Hobbit - 13 May 13 1:33 PM
US = complicated
but as unlock says usually you try your luck and you get in, perhaps best to make a single trip down that way if refused can get back.... also that Dublin or Shannon airport in Ireland offers a pre clearance entry, so that way if you don't go all the way down there only to get refused.
Seriously it looks like Asia/Europe they do not bother too much with these checks, the visa forms on some do ask for criminal convictions ie Russia and China does, rest are fine for the bog standard holidays, guess everyone needs money more so the poorer countries out there. America sadly has the highest criminal conviction rate in the world and also the highest level of standards to get in... perhaps they require the more posher criminal.
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By dave_uk - 3 Jun 13 12:46 AM
Hi, i didn't realise there had been more replies on this topic since i last look, i didn't get any emails saying so..
I am planning a trip finally to Rome, Italy, i am assuming that will not be an issue being in the EU? this is my first time abroad so i think thats just made going feel more worse as im not sure if anything will happen.
as i mentioned above i was arrested on section 39 common assault, i only have a few months left until it will be classed as spent, although the trip to Italy will be before that.
I also have a question about the post above by Q3 which showed what crimes America look at as involving and not involving moral turpitude, well i'm a little unsure by looking at the post if section 39 common assault would or wouldn't be included?
Of cause i would argue that there wasn't any intent to do serious harm (which truthfully there wasn't) but does section 39 mean you did or didn't when looking at moral turpitude?
would it be looked at as an issue or would they assume my arrest isn't serious if i ever wanted to go to America?
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By forever changes - 7 May 09 7:06 PM
dave_uk said...
Hi, i didn't realise there had been more replies on this topic since i last look, i didn't get any emails saying so..
I am planning a trip finally to Rome, Italy, i am assuming that will not be an issue being in the EU? this is my first time abroad so i think thats just made going feel more worse as im not sure if anything will happen.
as i mentioned above i was arrested on section 39 common assault, i only have a few months left until it will be classed as spent, although the trip to Italy will be before that.
I also have a question about the post above by Q3 which showed what crimes America look at as involving and not involving moral turpitude, well i'm a little unsure by looking at the post if section 39 common assault would or wouldn't be included?
Of cause i would argue that there wasn't any intent to do serious harm (which truthfully there wasn't) but does section 39 mean you did or didn't when looking at moral turpitude?
would it be looked at as an issue or would they assume my arrest isn't serious if i ever wanted to go to America?
Crimes committed against the person, family relationship, or sexual morality which do not involve moral turpitude include:
(1) Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly);
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By Hobbit - 13 May 13 1:33 PM
Having a quick check for you on Italy, https://italy.visahq.co.uk/ Confirms you do not need a Visa to enter with a British passport also googling it quickly shows these 2 links:
https://uk.answers.yahoo.com/question/index?qid=20100716033942AAJZyAo
https://www.tripadvisor.co.uk/ShowTopic-g187768-i20-k4027719-Travelling_to_Italy_with_a_criminal_record-Italy.html
https://www.nclt.com.au/#i
The 3 links above look promising, for Europe us brits are very lucky and Europe does not discriminate our past, English speaking countries however do !
Of course do not take my word as 100% I recommend posting up on the italian travel forums here:
https://www.tripadvisor.co.uk/ShowForum-g187768-i20-Italy.html
They surely would know much more.
Also you can contact the italian embassy here:
https://italy.embassyhomepage.com/index.htm
And ask them directly to be 100% sure, other then that Europe is the easiest place to get into for brits regardless of criminal records so enjoy!
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By jb - 11 Feb 14 9:02 PM
HI there, just been reading this thread from last year and im confused.
I have two convictions from the same "event"
Assault by beating
Contrary to section 39 of the Criminal Justice Act 1988
Assaulting police officer
Contrary to section 89(1) of the police Act 1996
unlock states because i have two convictions. I can not complete the visa waiver form and will need to pay for an apply for US visa. Is this correct?
and also how likely are they to turn me away on entry for the crimes. They are not spent until february 2015. and waiver or Visa do not guaruntee entry apparently.
I have family in Texas that i would dearly love to see. and visas seem to be expensive and take a long time. Not to mention the phenomenal cost of the flight only to get turned away after 10 hrs on a plane!!?
i would also love to go to New York for a short trip. But worried i can not ever go now.
what are peoples experiences of US travel with these convictions??
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By Victor H - 15 Dec 13 7:37 PM
jb said...
what are peoples experiences of US travel with these convictions??
https://www.travellerspoint.com/forum.cfm?thread=22639&start=691
As the vibe on that massive post suggest if its just for a holiday go and have fun 
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