As part of Extinction Rebellion’s strategy of nonviolent direct action, Rebels risk arrest and conviction for offences during actions. Common ones include obstruction of the highway, breaching conditions under Section 12 or 14 of the Public Order Act, aggravated trespass, criminal damage, obstruction of a police officer (or resisting arrest) and public nuisance. They are set out in more detail in Appendix 1, below.
But in addition to thee offences, there is a further risk that someone who knowingly assists someone who commits an offence (or plans to do so) may themselves be guilty of a different kind of criminal offence. This is the focus of this document.
They are called connected offences and can include conspiracy and encouraging or assisting someone to commit a crime and are set out below. Anyone involved in planning actions in which criminal offences may be committed is at risk of being arrested for these kinds of offences before, during, or after planned actions. These all relate to one of the common offences with which most of us are already familiar, ie. conspiracy to cause a public nuisance, conspiracy to commit aggravated trespass etc
This note explains those offences and their risks, and sets out ways that you might mitigate the risk of committing them.
In terms of sentencing, whilst many of the offences risked here are tried in a Crown Court the maximum sentences are generally not greater than those for committing the offence itself (which are usually tried in a Magistrates Court). In terms of typical sentences for first time offenders, we would expect them also to be on a par with committing the offence itself.
MITIGATING THE RISKS
NB: Different people have different appetites for risk and will be impacted differently by those risks. Whilst we can outline them, the precautions you take should be determined by how you perceive those risks to apply to you. Finally, what you do is up to you, but also respect that other’s experiences may be different to your own and don’t do and say things that could increase the risk for other people.
For non UK nationals please see informeddissent.info ‘Arrest and immigration status’.
Nonviolent direct action inherently involves a risk of arrest. Therefore, the planning of nonviolent direct actions inherently also involves the risk of arrest for charges related to the planning of offences.
In general these risks are low. But the level of this risk depends on the level and type of your involvement and not just on what you are doing and saying, but on what others in the movement are doing and saying about you. Please do not describe others as organisers or co-ordinators without their permission - they may see their roles differently.
It is understood to be a typical strategy for the police to use preemptive arrest where actions relate to “critical national infrastructure” like airports, railways, power plants, hospitals, telecommunications etc.
Taking this risk seriously can help to prepare you for it and reduce its likelihood and its impact on you, on other Rebels, and on the movement. It is important for you to be cautious but not paranoid. The former can be seen as a way to mitigate the latter
The risk of arrest for the connected offences is not severe and it can be reduced with planning and care
By now, it is very likely that police officers have infiltrated working groups and group chats in the movement. This is no cause for panic or paranoia but you should speak and write with this in mind.
The police have tended not to arrest for conspiracy to commit low-level (ie. summary) offences, but they also will not know what everyone in the movement is doing and so there is a low risk they will make arrests and/or raid offices and/or seize documents, computers or telephones in order to gather further information.
XR is a self-organising network. But in order to make out charges such as conspiracy, the police will try to find evidence of particular people organising actions.
There are a number of things that you can do to mitigate the risk to yourself, to other Rebels, and to the movement:
- Data: As a radically transparent network it is important to take control of your own data. Take control over what contact details you share. You may want to consider: using a nickname, a dedicated sim or phone number, and/or a dedicated email address.
- Organisers: if the police are looking to find organisers and high-profile people in the movement. Don’t be one. Instead:
- Split responsibilities for actions between people to reduce each of your risks. Eg. the person who buys a boat to bring to an action should not be on the boat etc.
- Don’t talk about a particular role you might be adopting publicly on Facebook or other social media.
- Don’t take a media spokesperson role (it’s obviously fine for people who are media spokespeople, it’s just that combining a facilitator role with media spokesperson can make you look like an organiser).
- Spread interactions with the police between people. Before actions, perhaps someone identified as ‘Police Liaison’ could notify police of forthcoming actions. Again, it would be better if this isn’t someone who is also a contact point in the network for your group.
- Personal computers and phones: make sure that your contacts, photos and documents are backed up, if you’ve been meaning to do that Time Machine back up, now is the time.
- Writing: be careful what you put in writing - both in terms of the information you share (and how) and your tone in written conversations. Do not encourage or direct people to do things, inform them of options and include caveats to make clear you are not organising them, but they are volunteering themselves. When editing and publishing material online, do you want your name attached (sometimes automatically ie google docs) or would you prefer an alias?
- Messaging: Use the app called Signal for messaging and set the ‘disappearing messages’ function. Where possible, use direct messages to people rather than group messages. This isn’t a block to group messaging, which is a very powerful tool, it is just a reminder to be aware that any messages you put on group chats will be less secure and to word messages appropriately. Please don’t share people’s personal details (name, email and telephone number) on group chats without their permission. Make requests for contacts on group chats but ask for responses by direct message.
- Filming: Be aware of where video footage will go and when. Feel able to say you don’t want to be filmed. Feel able to say that if filmed you don’t want it to be made publicly available (eg. on you tube). Feel able to say that you don’t want your name mentioned or attached to the footage (keeping in mind facial recognition technology can be used on online material too). If there is a documentary team, think about when the footage will be broadcast on National television; would it be before or after a potential trial, which could be 9 months and more after an action, for example.
- Preparing: the risks of arrest are low, but you should prepare in case it happens. Make a back-up plan for children or animals; find an XR Bust Card and know the solicitor’s company that you would call if you were to be arrested; brief a friend on what they should do if you are arrested. Know who you will call from the police station, an affinity group anchor, your friend or relative. You can ask them to call the back office or contact police station support directly.
- During actions:
- Spread the site facilitation, eg. one person could make announcements on the stage, another could liaise with the Steward co-ordinator and another could talk to other sites. This is self-organising, but it can be easy to become the Village Fete style ‘organiser’ by default and this can be picked up on police surveillance cameras and face recognition technology.
- Avoid activities that encourage or assist the committing of offences, eg. don’t use loud hailers to encourage people to ignore police orders etc.
- Use a dedicated protest phone when at an action.
Protecting the Movement
It is unusual for the Police to go for an organisation directly, eg. by raiding its offices, but not without precedent. There is, therefore, a small risk that XR’s offices could be raided by police. The risk of this happening is limited by the reputational damage that the police will be worried about incurring and the fact that conspiracy charges must be heard in a Crown Court with a jury, which the police have so far been keen to avoid. But this risk will likely increase the more disruptive XR becomes.
Whilst raids at homes or the office remains unlikely it is mentioned here as there is no harm in being prepared in any case.
In addition to the above advice which seeks to protect you and other Rebels, to protect the work that XR has done and is planning to do, it is important to think carefully and in advance about a back-up plan if the offices were raided, key materials including laptops and phones confiscated, and people arrested. Are key documents necessary for actions backed up somewhere (eg. on memory sticks in a different location to the office) so that actions can proceed after a raid? What about contact lists in case telephones are confiscated? Are there back up phones and laptops stored somewhere safe? Is there a way to change passwords to key accounts (ie email inboxes) quickly and easily?
Given the potential reputational damage of heavy-handedness to the police, what is the media and messaging strategy if offices are raided, especially on the eve of larger actions?
POSSIBLE OFFENCES BY THOSE WHO ARE IDENTIFIED AS ORGANISERS
Conspiracy and encouraging or assisting a crime
These offences don’t exist independently in their own right but are attached to the common offences that will already be familiar to many. So there’s aggravated trespass, criminal damage, etc The connected offences, as they are called, would be conspiracy to commit aggravated trespass or encouraging and assisting criminal damage for example.
You can be prosecuted for these connected offences because of actions or agreements made in preparation regardless of whether the common offence is actually committed or attempted. Rebels are at risk of arrest for these kinds of offences either before, during, or after an action.
They include conspiracy and encouraging or assisting someone to commit other criminal offences.
It is under suspicion of having committed one of these offences that members of the splinter group Heathrow Pause were pre-emptively arrested in mid-September near Heathrow or at their homes.
The use of conspiracy as a mechanism to control the activities of those involved in protest movements and, in particular, forms of direct action, is not new.
If the police have intelligence which demonstrates the existence of a planned protest that would involve people committing criminal offences then, legally at least, there is nothing controversial in the use of arrest for conspiracy - especially where similar offences have been committed in the past. These kinds of offences partly exist to enable proactive rather than reactive policing.
There have been instances where protesters have found themselves facing conspiracy charges even though the protest had begun already and these same people could have been arrested for the offence itself.
What is it?
A conspiracy is an agreement where two or more people agree to carry out a criminal offence (such as ‘aggravated trespass’ or any of the other common offences detailed in Appendix 1, below). The offence is committed at the time of the agreement so it is irrelevant whether or not the actual offence is ever carried out - either because the parties change their mind or find it impossible to commit it (though these arguments can be used to reduce the sentence that a guilty verdict would carry). The actions or words of one person charged with conspiracy can be used as evidence of other people’s involvement in that same conspiracy.
How is it treated in the Courts?
The offence of conspiracy is triable only in a Crown Court (these are called ‘indictable’ offences) even if the parties agreed to commit a criminal offence triable only in a Magistrates Court (these are called ‘summary’ offences).
The maximum term of imprisonment cannot exceed that of the relevant criminal offence. Where that offence is not punishable by imprisonment, a conspiracy is punishable by a fine.
Courts are encouraged to avoid a one-size-fits-all approach to sentencing of those found guilty of conspiracy, and attention will be paid to the different roles and types of involvement of each of the parties to a conspiracy when sentencing them. Sentencing will depend very much on the conduct of each defendant.
Conspiracy to commit an offence does not require it to have actually been committed, conspiracy can often involve pre-emptive arrests (as happened with the Heathrow Pause action in mid-September). Pre-emptive arrests can be used as a means of ‘strategic incapacitation’, a policing tool that is becoming an increasingly prevalent method of dealing with diffuse and unpredictable forms of direct action, which enables them to stop planned actions from taking place and search premises for evidence of conspiracies. It is understood to be a typical strategy for the police to use preemptive arrest where actions relate to “critical national infrastructure” like airports, railways, power plants, hospitals, telecommunications etc.
Encouraging or Assisting a Crime
This is not frequently applied in protest related cases, but is an offence to intentionally encourage or assist an offence or to encourage or assist an offence believing it will be committed. You can be prosecuted for these offences regardless of whether the underlying offence that you might be encouraging or assisting is actually committed or attempted.
This offence is triable in the same way as the anticipated offences, so if the anticipated offence is a summary offence triable in a Magistrate’s Court, this offence would be too. The maximum penalties are the same as those for the anticipated offence.
There is a defence to the offences where the encouragement or assistance is considered to be reasonable in the circumstances - as defined by what the person knew or reasonably believed those circumstances to be. Factors determining reasonableness include the seriousness of the expected offence and any purpose for (or authority by) which the defendant claims to have been acting.
Attempting to Commit an Offence
This offence only relates to offences that are either indictable (triable in a Crown Court) or so-called ‘either-way’ offences (which can be tried in a Crown or Magistrates Court), such as Criminal Damage or Public Nuisance. There is no offence of an attempt to commit a summary-only offence such as breaching a Section 12 or 14 Order or Obstruction of the Highway.
You will be guilty of this offence if you actually tried to commit the act in question rather than merely being prepared to do it. Whether your actions were merely preparatory will be a question for the court. The prosecution must prove that the defendant had the specific intent to commit the full offence attempted. If the accused has passed the preparatory stage, the offence of attempt has been committed and it is no defence that they then withdrew from committing the completed offence or were unable to complete it.
The maximum penalty for an attempt to commit an offence is the same as for the offence itself but an attempt will usually carry a lesser sentence than the offence itself.
INCITEMENT AND ORGANISING OFFENCES IN THE PUBLIC ORDER ACT
Sections 12 and 14 of the Public Order Act allow conditions to be imposed on ‘public processions’ and ‘public assemblies’. Breaching these conditions is an offence, but the Act specifically includes further offences of organising or inciting others to breach the Section 12 or 14 conditions. Those found guilty of these organising and inciting offences will face more serious penalties which could include a custodial sentence. Whilst a custodial sentence is one of the maximum sentences, it is highly unlikely to be applied in the case of a first time offender.
In addition to the above offences, the following are also offences which people may find themselves guilty of. There are no connected offences for these, so conspiracy, encouraging and assisting etc don’t apply.
Breach of the Peace
Breach of the Peace is not a criminal offence: you can be arrested, but you cannot be charged. The police have the power to detain or arrest you if a “breach of the peace” has occurred, or to prevent it from occurring. As such, it is possible that before or during an action those involved may be arrested.
A breach of the peace is defined as “an act done or threatened to be done which either actually harms a person, or in his presence, his property, or is likely to cause such harm being done.” The police must release you once the threat of the breach of peace has passed. They sometimes use this power to arrest groups of people at actions, drive them far away from the site of the action, and then release them in the middle of nowhere (without ever going near a police station).
Possession of items with intent to cause Criminal Damage
There is also risk of arrest if the Police believe that you are intending to cause criminal damage. Activists found on their way to an action with bolt-croppers, for example, have been charged with having items with intent to cause Criminal Damage. The most ridiculous arrests we’ve seen for this were for having permanent markers!
APPENDIX 1: COMMON CRIMINAL OFFENCES
There are a series of common offences that Rebels are at risk of committing by participating in nonviolent actions. This Appendix provides a brief overview of those offences; for more information on them, see XR’s Legal Briefing at tinyurl.com/legbrief.
Obstruction of the Highway
This power is often used to remove demonstrators who are standing outside buildings, sitting down blockading entrances or roads and in many public order situations. You could be committing this offence if, without lawful authority or excuse, you willfully obstruct the free passage of the highway. The ‘highway’ includes the road, the pavement, grass verges and private property used as a public thoroughfare. ‘Obstruction’ includes anything that prevents passing and re-passing along the highway. You do not have to be blocking the whole width of the highway.
If convicted, the maximum penalty is a fine of £1000. First time offenders would be likely to receive about £200.
Breaching Section 12 or 14 of the Public Order Act restrictions on protest
Sections 12 and 14 of the Public Order Act allow conditions to be imposed on ‘public processions’ and ‘public assemblies’. A ‘public procession’ is any number of people (the law does not specify a minimum) moving along a route. A ‘public assembly’ is two or more people gathered together in a public place. This includes highways, parks, shopping precincts, shops and offices, restaurants, pubs or any other place to which the public have access or partial access. Conditions can be set which restrict the place, the duration and the numbers of people allowed. Often, conditions will include setting up a “protest pen” and asking you to move into it. Conditions can be imposed in advance, or by the senior police officer who is at the scene.
If convicted, the maximum penalty is a fine of £1000. First time offenders would be likely to receive a fine of about £200.
You must be doing two things to commit aggravated trespass:
1) Trespassing, which is entering – or putting property on – land that belongs to someone else, without their permission; and
2) Intentionally obstructing, disrupting, or intimidating others from carrying out ‘lawful activities’.
Further to this, a senior police officer has the power to order any person believed to be involved in aggravated trespass to leave the land; if they refuse to leave after being ordered to by a police officer, or if they return to the land in question within a period of three months, this is an additional offence.
If convicted, the maximum penalty is 3 months imprisonment, or a fine of £2500, or both. First time offenders would likely get a fine of between £200 – £300.
Criminal Damage is the “deliberate or reckless damage” of property without lawful excuse. The damage does not have to be permanent – people have been accused of this offense after using chalk on paving stones. It includes interfering with property in a manner that causes loss, which could include loss of profit (e.g. by setting off a fire alarm).
The size of the possible penalty, and whether or not you would be tried in the Magistrate or Crown Court, depends on whether the damage is more or less than £5000.
Obstruction of a police officer
The threat to arrest for obstruction is widely used by the police at demonstrations. It is an offence to assault, resist or wilfully obstruct a constable in the execution of their duty. Willful obstruction of a police officer means doing any act which makes it more difficult for the officer to carry out their lawful duty e.g. stopping them doing something, de-arresting someone, deliberately misleading them, or giving a false name and/or address.
Public Nuisance, which is an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the general public, has begun to be used by the police against protesters relatively recently. Though a criminal offence, a public nuisance can also give rise to a civil claim for damages.
It can be tried in either a Magistrates or Crown Court and there is a risk of higher sentences and expensive and lengthy court cases that last weeks. On conviction, the defendant can be ordered to pay a fine and/or receive a prison sentence.
If you have any further questions on this or other legal questions, email Legal Support at email@example.com.