This briefing assumes that you have been arrested and charged with one or more offences under section 14 of the Public Order Act (that you refused to move to a designated location when directed to do so by a police officer). It also assumes that you have had your first hearing, pleaded not guilty, and been allocated a trial date.
The first thing to do is think about exactly why you are not guilty of this offence. There are four main headings:
1. You didn’t know that the S14 direction had been given because you couldn’t hear it, were distracted, etc. If you go for this one you need to see the bodycam footage and will need the arresting officer called to your trial for your cross-examination.
2. The S14 notice was not legitimate because you have the right to protest and the right of assembly under Human Rights legislation. You will need the senior officer who imposed the Section 14 order to come to your trial to explain why he over-rode those rights.
3. You were justified in ignoring the order because of the urgency of the climate crisis (sometimes called Necessity).
4. The scientific evidence is unequivocal, Parliament has declared a climate emergency, so your prosecution for a minor public order offence is a waste of scarce resources and not in the public interest. You might want to claim that it is an abuse of process.
If we have missed any, please let us know! Otherwise, what you want to say in your defence may fall under one or more of those headings.
If you go for (1) above and the court agrees with you, you will be found not guilty because the law requires that the police give the order to move and you have to hear and understand it, and then refuse to move. If you didn’t understand it or couldn’t hear it you have a good case, and the bodycam evidence will be important – XR activists have been found not guilty because the bodycam footage didn’t show the warning being given properly.
Unfortunately this is a grey area, especially for people who are self-representing. Solicitors have the passcode to the CPS computers holding the footage, and can forward the film to their clients before they make their plea decision, but CPS won’t let individual defendants have the passcode. So self-reppers have to notify the court usher that they want to view the footage at the plea hearing, and arrangements will be made to see it on the prosecutor’s laptop, in the courtroom. This is far from ideal and you are entitled to make a fuss and perhaps things will improve – as it is, anyone who has already attended the plea hearings knows that they are busy to the point of being chaotic, and the chances of having a quiet 10 minutes in a courtroom are not good.
But if you want to see the footage, arrangements will be made at the plea hearing for that to happen, and if the film shows a noisy and confused scene with police officers acting in haste, you may be in with a chance. If it shows you having a sensible conversation with the officer, maybe not.
You can decide to accept the police evidence without seeing the footage because you agree that the warning was properly given and you refused to move when asked. Perhaps, for you, that is not the point – the point is to talk as much as possible about the climate crisis. In those circumstances your defence will probably be based on one or more of the other three defences – Human Rights Act, necessity, or not in the public interest. They are all legitimate defences and the court must consider them, but they are less likely to result in an acquittal. But if your priority is to make an effective statement to the court, they may provide a way to do that.
After working out exactly why you are not guilty it’s a good idea to write a summary of your defence case to get it straight in your mind. This can be turned into a court document called your Defence Case Statement and should be sent to the prosecution four weeks before your trial date. It can be quite brief, a few hundred words, and doesn’t need to contain supporting evidence, case law, legislation – it’s an outline of what you will be saying. But you can use it to ask the CPS to give you any evidence that they are not going to use. They have two weeks to reply.
If you are represented, your barrister or solicitor will also write a Skeleton Argument, which contains the legal details and justification of your case. Some self-represented defendants do produce a Skeleton, and we can email you an example on request. But you don’t have to, and it’s worth bearing in mind that one of the benefits of representing yourself is that you are not constrained by the assumptions and language that all lawyers have in common. To some extent you can get away with things in court that lawyers can’t.
If you do intend to quote reports, references, and other documents it’s a good idea to gather them together in a Defence Bundle. Again, this is not usually a long document but a collection of extracts from the most important evidence, to show the court what you had in mind when you decided to attend the rebellion.
Character witnesses are a good way of showing the court your commitment and dedication, the kind of person you are and what led you to this point. One or two are probably enough, and their evidence will be on paper: they won’t be called to give evidence in person because the CPS probably won’t challenge their evidence and won’t want to cross-examine them.
Expert witnesses who are supporting you by presenting evidence on the urgency of the climate crisis may also not appear in person because, like character witnesses, they won’t be challenged. This is one of the oddest things about your trial – in all the cases so far the prosecution has accepted the overwhelming weight of scientific evidence that climate change is real and accelerating. Courts have even accepted that the April rebellion played a significant role in raising awareness of the issue. So you can certainly give the court your expert’s written evidence and refer to it when you give evidence yourself: but s/he may not be called to the witness stand.
Trials are being held in groups of up to eight defendants, grouped according to date and place of arrest. This means that there is more mutual support than if you were on your own, and also that represented and self-represented people may be mixed up. So some defendants will present a more formal legal case while others exercise the freedom to make their arguments in ordinary language.
The prosecution will begin by making an opening statement, a summary of the case against you. If one or more of your group is challenging the police and/or bodycam evidence, the relevant police officer will be called as a prosecution witness. There may be two officers called, the senior officer at the time and the officer who actually arrested you. When they have finished their evidence you (if you are challenging them) can ask them questions in cross-examination. If none of the defendants is challenging police evidence they will probably not appear in person.
Then the prosecution case is finished and each defendant will be invited to give her/his evidence. You will leave the dock and move to the witness stand to do this, and you can take papers or a notebook with you. You’ll probably expand on your Defence Case Statement, refer to documents in your Defence Bundle and to any expert witness statements you have. If you are self-representing and others in the group have lawyers you may want to use ordinary language and leave lawyer-speak to others. Be transparently honest, don’t be afraid to be emotional. Tell it like it is for you.
If you are challenging the police evidence you may be asked questions by the prosecution. Otherwise, perhaps not. Sometimes the judge asks a question or two. After everyone has given their evidence the prosecution will make a closing statement. Last of all the defendants will be invited to do the same. You don’t have to, you can adopt a closing statement by another defendant. But if you want to, you can.
Then the judge leaves to think about it and everyone takes a breather for a while. Use the time to fill in a Means Form on which you say how skint you are, and be ready to hand it to the court clerk or usher. Then the judge comes back and announces the verdicts and, if guilty, what the sentence and costs will be. The sentence will be a conditional discharge or a fine – for information on fines and court costs please see ‘A Defendants guide to court finances’, but remember that both fines and costs are means tested. You’ll probably get a little homily from the judge about not getting into trouble again, you’ll agree on a payment schedule and then you’re free to go. All over.