Lorry driver escapes community service - because it would leave him too tired to drive

A lorry driver sentenced to 150 hours' community service for a drunken racist assault has been let off after probation chiefs claimed the punishment could breach EU working hours limits.

In a bizarre court hearing, probation bosses asked a judge to lift Elliot Carnell's sentence because they feared picking up litter would leave him too tired to drive his lorry safely.

Officials said they were concerned Carnell, 37, from Eastbourne, East Sussex, might sue for compensation if he was injured in a road accident.

Carnell, who was convicted for attacking his ex-wife's Sri Lankan boyfriend, said that, although he had been willing to complete his sentence, he was 'bewildered but happy' by the verdict.

Last night, his ex-wife Suzanne Carnell, 34, criticised the decision, saying: "I'm really upset. It's not right.

"Now he's free to go to the pub drinking with his friends and causing trouble. He should have gone to jail. It's not a strong enough punishment. He must be laughing."

The case has led to concerns that thousands of criminals could try to use similar health and safety loopholes to quash their own community punishments.

Carnell, who has a previous conviction for attacking a German man wearing an England football shirt, admitted racially aggravated assault and common assault against Mrs Carnell's boyfriend, shopkeeper Clarence Nesan, last December.

Lewes Crown Court heard how Carnell, who had drunk 15 pints of lager at a Christmas party, hurled racist abuse at Mr Nesan before punching him six times in the head.

Mrs Carnell and her daughter, Kerry Potter, were also hit when they tried to intervene.

Carnell was given a six-month suspended sentence with 150 hours of unpaid work and ordered to attend alcohol counselling sessions.

But when he arrived to pick up litter on his first day, officials said they were concerned the sentence might take him over the EU Working Time Directive of 48 hours and ordered him to stop.

They then took the case back to court and asked a judge to remove the work order.

Rebecca Upton, representing Carnell, told the court: "He works as an HGV driver and the concerns that probation have are that if he's working seven days a week and if, as a result of tiredness, he has an accident while in control of an HGV the consequences for his employer and probation could be very serious."

After the hearing, Carnell said: "I was a bit bewildered by what happened but I'm happy. I was willing to do the punishment."

Assistant Chief Officer Arthur Wing, of the Sussex probation service, said: "We considered Mr Carnell's job and accepted that its particular nature required him to have specified rest periods.

"We have reviewed our approach and would not do this in the future."

Mr Wing claimed the EU law was not relevant to the case, however, as it did not cover unpaid work carried out as a court punishment.

Tory justice spokesman Nick Herbert said: 'If the offender is working in another job at the same time as serving a community sentence then that is their choice.

"They should do their time on probation without exception."