Legal briefing

As a mutually supporting network we are all responsible for ourselves, and while we support each other as best we can, your actions are your own. It's important to prepare yourself for all eventualities before attending an action (it isn't possible to predict whether you will be arrested or not). Remember, this document is an overview intended to bring things to your attention, and is to be seen as a gateway to further reading. Links are listed at the bottom of each section. 

Legal Strategy

The legal strategy documents aim to provide you with an overview of how we can turn the criminal justice process (from arrest to prosecution) into an opportunity to advance our strategic objectives - in particular by raising public and political awareness of the climate emergency.  While we also refer to some of the risks of action, this document is not a substitute for legal advice. Even if you choose to represent yourself at the trial, if you're arrested, it's usually a good idea to take independent legal advice. 

Below are links to a series of documents we are developing that can help you to support our strategic objectives through the legal process if that's what you decide you want to do - both when self-representing and when working with an experienced sympathetic solicitor.

 

LS1: LEGAL STRATEGY OVERVIEW  - http://bit.ly/ls1strategy  

 LS2: CLIMATE EMERGENCY PUBLIC INFORMATION. Try to read this document before taking action. You can then refer back to it to help explain why you did what you did. http://bit.ly/ls2climateemergency 

LS3: PREPARED POLICE INTERVIEW STATEMENT - EXAMPLES. This document includes two examples of a prepared police statement, a short version and a longer version, which you may use, combine or adapt to prepare a statement you are comfortable with personally. http://bit.ly/ls3preparedstatement 

LS4: EXAMPLE SKELETON ARGUMENT. Courts may ask you to submit a skeleton argument which explains the legal basis of your defence. Even if they don’t it can be useful to set out your arguments in writing. This document provides you with an example of how you can argue that established legal principles justify non-violent direct action in response to the climate emergency. http://bit.ly/ls4skeleton 

LS5: EXAMPLE WITNESS STATEMENT /CLIMATE CHANGE ANNEXE: It is not really necessary to call an expert witness about the climate emergency. There is so much documentary evidence about it from government and other sources that if you would like to get relevant evidence before the court, you can do so by preparing a witness statement or an annexe of documentary evidence. This example witness statement provides you with references to materials you could include and an idea of how you might organise them. http://bit.ly/ls5witness 

LS6: EXAMPLE EXHIBIT: Your exhibit should include screenshots of the documents and articles you refer to in your skeleton argument and witness statement. This will help to authenticate your evidence and to bring it to life for the court. If possible, print out colour copies. http://bit.ly/l6exhibit 

LS7: KEY LEGAL REFERENCES TO SUPPORT A DEFENCE: this document sets out excerpts from previous legal cases and rights protected by the European Convention on Human RIghts, which may help you to advance a defence. http://bit.ly/ls7references 

LS8: YOUNG PEOPLE, SCHOOL AND NON-VIOLENT DIRECT ACTION: LEGAL CONTEXT: this document focuses on the the legal context specific to action taken by those under 18 years old http://bit.ly/ls8youth 

Personal preparation for an action day

We hope that taking action will be a very empowering experience. If you are part of an XR group then there will be group preparation. This document is aimed at each XR Rebel. Part of being empowered is making informed decisions and so below we talk about some stuff that may be new to you, or if you’re experienced it may be good to get a refresher.

If there is only one link you click through on make it this one, GBC’s ‘Key Advice when Going on a Protest’:

https://greenandblackcross.org/guides/key-advice/

The five KEY MESSAGES that GBC advise are:

No Comment

You do not need to answer police questions, so don’t. This is for your own protection and for the protection of others.

The police are trained to gather evidence and so you might accidentally incriminate yourself or someone else. Never identify anyone as the organiser or co-ordinator unless it is with their permission - they might see themselves differently. Instead of trying to decide when it seems ‘safe’ to answer, just say “No comment” to all questions – during ‘informal chats’, in the police van and especially in interview.

 

No Personal Details

You do not have to give personal details when you are arrested. Typically people give their details when being checked in at the custody desk at the police station as this minimises the chance of being arrested and then released without being booked in. It also allows you to be released inside the 24hr limit - if you withhold personal details at the police station it’s likely you’ll be kept in until you can be taken in front of a magistrates court.

No Duty Solicitor

Use a solicitor with protest experience. The “duty solicitor” is the solicitor who is present at the police station. They may come from any firm of solicitors, which means they almost certainly know nothing about protest. You don’t have to know the number of your solicitor give the company name to the police and they will call your choice of solicitor for you. See bustcard or here https://tinyurl.com/lonsolicitors for a list of protest experienced solicitors, who are already representing XR rebels and have capacity.

No Caution

Cautions are an admission of guilt. Offering you a caution is a way the police may ask you to admit guilt for an offence without having to charge you. It is an easy win for the police, as they don’t have to provide any evidence or convince a court of your guilt. Although people are discouraged from accepting cautions in general, if you think it is right for you, it’s best to discuss the offer with a lawyer experienced in protest law first. https://tinyurl.com/lonsolicitors

Under What Power?

Ask “What power?” to challenge the police to act lawfully. Some police officers rely on you not knowing the law. If you are asked to do something by a police officer, ask them what power (i.e. what law) they are using and why they are using it. Make a note of what was said, by whom (numbers) as soon as possible afterwards.

Don’t let them turn this into a situation where they ask you questions though – just walk away once you have your answer, and remember No Comment!

Brief definitions

Arrest - Read more about what happens when you are arrested below and here https://greenandblackcross.org/guides/what-happens-if-im-arrested/

Caution - You might be offered a caution anytime after arrest, generally it is recommended not to accept a caution (nor Community Resolution - similar to a caution but less serious). Read more about them below.

Charge - This is when the decision is made by the police and/or CPS to prosecute you for an offence (not necessarily the one you were arrested for). You will be given a court date to appear in court and it’s up to you to make sure your solicitor knows that date if you want them to attend the hearing.

Conviction - If you either plead guilty or are found guilty at court then you will have a conviction for the offence with which you were charged.

Venue - Depending on what you are charged with, your case could be tried in the Magistrates Court or the Crown Court. You may not be given a choice about this. 

If your case is to be tried in the Magistrates Court (these are called “summary only” offences), the case will be heard by a lay bench (generally retired volunteers) or a District Judge sitting alone.

You will only be entitled to have a trial before a jury if you are charged with a more serious offence.

Read before you go

As part of XR’s aim to turn the criminal justice process (from arrest to prosecution) into an opportunity to advance strategic objectives - in particular by raising public and political awareness of the climate emergency - please read the links below.

If you read the Climate Emergency document (LS2) and Dr James E Hansen’s letter ‘To the General Public of the United Kingdom’ before taking action, it may help you later in court to reference these to explain your motivations. The documents are works in progress but you can find the most up to date versions at the links below.

LINKS: 

LS1: Legal Strategy Overview

http://bit.ly/ls1strategy 

LS2: Climate Emergency – What you need to know

http://bit.ly/ls2climateemergency 

Dr James E Hansen’s letter

https://planb.earth/wp-content/uploads/2019/03/Hansen-letter-to-general-public.pdf

Print statement to read out, in case of police interview

There are risks to answering police questions in interview directly. A useful alternative is to present the police with a prepared statement. You can use the examples in LS3, part of the XR legal strategy documents, as a template for this which you can shorten, revise and adapt to your personal circumstances in advance of arrest. You could try asking your solicitor if you can share it with them in advance, in case that helps ensure you have access to it when you need it. It’s best not to reply to any other questions (even if you are tempted) during the interview but read your statement and you can say ‘no comment’ to anything else.

You may want to read a long statement at the interview stage - if the police stop you, it might be possible to raise this in court. Or you might want to read a short statement that will save time and also not aggravate the police whilst you are in custody.

LINKS:

LS3 - Example Prepared Statement

http://bit.ly/ls3preparedstatement 

Know the name of the solicitors’ company you will ask the police station to call.

If you get arrested and are taken into custody, you are entitled to free legal advice at the police station. Give the name of the company you want to use and the police station will contact the Defence Solicitor Call Centre, who will call them. Know beforehand what solicitor you want to represent you and give the name of the company to the police, you don’t have to know the exact number. Do not use the duty solicitor. Even if you are in a remote area, an experienced protest solicitor can instruct a local firm to act as their ‘agent’ and this is preferable to asking a local solicitor to attend the police station yourself. If you are eligible for legal aid, it can be difficult to change solicitors once it has been applied for.

If there are lots of you arrested, there may be a delay before you get the chance to speak to a solicitor. 

XR note: If London based, many XR activists are already using HJA, Birds, Birnberg Peirce and ITN. Contacts can be found here tinyurl.com/lonsolicitors. If you are looking for a local solicitor check out Netpol’s list netpol.org/solicitors/criminal-solicitors-2/. If there isn’t one near you it’s possible to call the nearest one or a London based one before your action to ask them to cover your area using an ‘agent’ as described above.

Cautions and Community Resolution Orders

In general the advice is not to accept either a Caution or a Community Resolution, especially if your intention is to have your say in court. However always talk to an experienced protest law solicitor about your choices. Do not follow advice from a duty solicitor to accept a caution. 

A caution is an admission of guilt and can stay on your record for many years, depending on your personal circumstances. It can affect visas, travel, and job applications. Often the police offer cautions in ‘Public Order’ cases when the evidence they have is weak. It’s an easy result for them: an admission of guilt without having to present evidence against you. 

However, there are specific instances when you might want to think about accepting a caution, such as you committed a fairly serious offence and the caution allows you to walk away without having to go to court, and that may be in your interest. Or perhaps there are personal circumstances that mean you want to get the process over and done with and don’t mind having a caution. 

Motivations to accept a caution are that it is a quick and cheap route to end the legal process and removes additional uncertainty. You have to admit what you have done though, and need to make sure you don’t grass yourself up in detail and then find the offer is withdrawn and your words used against you. Also be careful not to talk about other people, and consider whether admitting your guilt might be a way for the police to pressure others (although they will readily lie and tell people their friends have admitted all/grassed them up). 

Community Resolution Orders Summary
It’s like an apology for what you have done. You have to make a clear admission of guilt.
Not classed as a conviction (so no criminal record), but can be taken into consideration if further offences committed and may be recorded and accessible for police information. These tend to be recorded locally at the police station where you were taken. May still show up on an enhanced DBS check. Primarily for first time offenders who admit guilt, and the victim’s views are taken into account.

LINKS:

GBC on cautions: https://greenandblackcross.org/guides/what-happens-if-im-arrested/6-cautions/

Common Charges

Read about the common charges that you may face and make yourself aware of the sentences. How much is the possible fine?  What’s a typical sentence? How long if custodial?

Arrest is only the first step in a process although many arrests are not taken any further. Often for a first time minor offence committed at a protest the sentence will be a conditional discharge. Though note the variation below, in the case of individuals who are arrested multiple times.

Read about Common Charges in Appendix 1.

They include: Aggravated Trespass. Obstruction of the Highway. Criminal Damage inc going equipped to commit criminal damage. Obstruction of a Police Officer (people can be arrested for this fairly frequently, but it’s not often that the CPS decides to prosecute for this offence). Resisting arrest. Threatening words and behaviour (or disorderly behaviour). Violent disorder. Breach of the Peace (not a criminal offence). Section 12 and Section 14.

https://greenandblackcross.org/guides/laws/

https://netpol.org/wp-content/uploads/2015/04/Understanding-Laws-Affecting-Anti-Fracking-Campaigns.pdf

Public Nuisance has begun to be used by the police against protesters relatively recently. It can be tried in either the Magistrates or the Crown Court (it is known as an “either way” offence).

What we do know is that there is a risk of higher sentences and expensive and lengthy court cases that last weeks. 

If you want to lower the risk of public nuisance being used against you, then you might want to think about the following options: leave an action if police are present; don’t take a role where you look like you are organising; try to be seen to minimise the impact on the public. You can always watch from a safe distance until the coast is clear and then rejoin. Although the risk can be minimised, arrest for Public Nuisance on protest actions remains a current possibility and so it’s about making informed choices. It’s worth noting that necessity defences were ruled inadmissable in the most recent Public Nuisance protest case, and so perhaps this charge is the least favourite for attempting to force the courts to listen. Further notes on Public Nuisance: http://bit.ly/publicnuisance 

It’s also worth noting that if you have already been arrested/convicted (even if for another offence, such as aggravated trespass or criminal damage) this can count against you if you are arrested again. If you were convicted of offence 1 and then of offence 2, your sentence can also be greater.

XR note: XRUK does not currently contribute towards court fines, court costs or legal representation. Local Groups do Crowdfund small sums to support defendants, contact your local one to see if they can help you. There is a fund to help towards travel costs to court, apply by emailing xr-arrestwelfare@protonmail.com.

LINKS

Common offences: https://greenandblackcross.org/guides/laws/

Understanding Laws Affecting Protestors by Netpol:https://netpol.org/resources/anti-frackers-guides/

Table of common offences: https://bit.ly/2UwYc2J 

Sentencing Councils full list of offences (many not be protest related):  https://www.sentencingcouncil.org.uk/offences/

Sentencing on Conviction by Netpol: https://netpol.org/wp-content/uploads/2015/04/sentencing-on-conviction.pdf

Having a record

Is it okay if you get a record that shows up in these places? 

  • In DBS checks (normally employment related)

  • When applying to stay in this country  

  • When applying to travel in some countries abroad

  • Insurance applications and renewals

The record won’t necessarily cause a problem, but reading more about records is highly recommended.

Employment

If you are charged you will be required to attend court for 2 - 10 days typically, not all consecutively and so you should be prepared to take that time off work.

Some jobs, including those in the medical, legal and teaching professions, or if you work in care premises, require an enhanced DBS check (previously known as CRB). Any work that involves contact with children also requires the enhanced DBS check, including being the cleaner or bus driver for a school, for example. Also other less obvious jobs such as being a chiropractor - please read the link below to see if yours is one of the jobs that requires an enhanced check.

http://hub.unlock.org.uk/wp-content/uploads/A-Z-of-specific-job-roles-and-eligibility-for-criminal-record-check.pdf

If it isn’t on the list above, then after a certain amount of time (known as a ‘rehabilitation period’) you do not need to tell most potential employers about most crimes you’ve committed in the past. Before your conviction is spent, you only have to tell the employer about your past crime if they ask you - most employers will ask you at the point of making a job application. This doesn’t necessarily count against you, as they are able to see the nature of your conviction, and you can have the chance to explain your motivations.

From the Unlock website: ' If an employer wants to know about criminal records, they will normally ask you to disclose in a certain way; this might be at interview or after they’ve made a conditional offer. Some employers ask on their application forms. Where possible, we suggest that you disclose your record face-to-face; this tends to be most effective.’

http://hub.unlock.org.uk/quick-links/top10/#for-more-information

The rehabilitation period depends on the sentence. For a community order it is 6 months. For a fine it is year. After that, you generally don’t need to tell anyone about it if you don’t want to - unless your job means you require an enhanced DBS. After a conviction is spent it can still show up on applications to stay in the UK and when travelling abroad to some countries.

http://hub.unlock.org.uk/knowledgebase/spentposter/

DBS checks and being arrested on protests

The disclosure and barring service (DBS) is primarily used by employers to check whether potential employees have criminal convictions. Some jobs can request that you have an enhanced DBS check, check the link above if your job is one of them.

It is often asked whether arrests, charges and convictions related to protest activities will show up on a basic, standard or an enhanced DBS check and whether this will affect people’s employment prospects. Most things don’t show up on a basic DBS check.

In short: Expect convictions (both unspent and spent) and cautions to show up on your standard and enhanced DBS check. Arrests or charges may show up on Enhanced DBS checks, at the police’s discretion. Your potential employer may ask you to explain what shows up, but having convictions etc doesn’t automatically mean you can’t get the job and won’t necessarily count against you. 

* DBS checks are only allowed for some roles, largely those working with children, in healthcare or personal care, or in some professions. Some jobs are eligible for Standard DBS, and some are eligible for Enhanced DBS, including most jobs working directly with children. You can check whether a job is eligible for a DBS check at this gov.uk site https://www.gov.uk/find-out-dbs-check (by using a questionnaire) or looking at the table here http://hub.unlock.org.uk/wp-content/uploads/A-Z-of-specific-job-roles-and-eligibility-for-criminal-record-check.pdf

* What will show up on a Standard/Enhanced DBS? spent and unspent convictions, cautions, reprimands and warnings that are held on the Police National Computer. This includes offences for which you received a conditional discharge.

* Additional for an Enhanced DBS: anything that the Chief Officer of a police force thinks is relevant. This can include arrests. We find it unlikely that anything related to protest activity would show up here, but it could include arrests that don’t result in conviction. If you have to go through an enhanced DBS check and information related to protest activity is included, the Network for Police Monitoring netpol.org would be interested to know as this could be a method of intimidating people out of protest. 

* There is something called “filtering” where some convictions don’t show up after 11 years have passed (5½ years for convictions imposed when you were aged under 18), but only if you have been convicted of a single offence and got a non-custodial sentence, and the offence is not included on the list of offences that will never be filtered. If you have more than one conviction on the Police National Computer all your convictions will be disclosed. Where people appear in court once, and where their DBS check shows one ‘conviction’ but multiple ‘offences’, these will be treated as multiple convictions and so NOT be filtered.

Will an arrest that doesn’t lead to a charge show up on a DBS check?

It may show up on an Enhanced DBS check, at the discretion of the Chief Officer of the relevant police force. 

If I am arrested, tried and acquitted, will this show up on a DBS check? 

It may show up on an Enhanced DBS check, at the discretion of the Chief Officer of the relevant police force. 

Insecure Immigration Status/Applications to stay in the UK/Citizenship

At the time of arrest there is a new requirement for an arrestee who is suspected of not being a UK national to state their nationality and provide documentation. This practically removes the ability to be anonymous but it isn't automatic - it's an offence not to "if required to do so" at the time of arrest.

General advice for non-UK nationals with current or future plans to rmain in the UK is that being arrested has serious implications that are likely to impact any current or future application to the Home Office. 

If you have concerns about your current immigration status, or any planned future applications to the Home Office, you need to seriously consider whether getting arrested is the right option for you.

Each case is unique and there is no uniform answer on how arrest will affect your immigration status. However, there are some things that you need to be thinking about when considering the implications of arrest: 

- Your current immigration status and the possible implications of being arrested, i.e. can arrest change your immigration status?

- Any future planned applications to the Home Office for further leave/settlement (are you planning on making an application to the home office in the future?)

- Do you see a future in the UK whether medium or long term? Would you be able to deal with the impacts or problems arising from the Home Office such as loss of permission to work/access to welfare? (In certain circumstances the Home Office may remove your right to work or access to welfare while your application is being considered. Are you able to take care of yourself and deal with these issues?)

If you have specific concerns about your current status or regarding any planned future applications to the Home Office, the most important thing you can do is seek professional legal advice.

For more detailed information from a leading immigration solicitor read tinyurl.com/arrestimm. Downloadable version of this document https://public.3.basecamp.com/p/bCBWQLbWn57YYt71xH3dZQFF.

It might be best to take a volunteer role off site with XR rather than take part in actions.

LINKS:

https://rebellion.earth/volunteer/

Tier 4 Student Visa: https://greenandblackcross.org/guides/demonstrations-and-international-students/4-tier-4-student-visa/

Getting Arrested and Travelling Abroad

Even just being arrested can have an impact for travel to some countries. 

You can read more at the document downloadable from this link:

tinyurl.com/travabro

LINKS:

An activists’ personal research: http://bit.ly/legalconsequences 

Unlock Website info about convictions:http://hub.unlock.org.uk/quick-links/

https://hub.unlock.org.uk/knowledgebase/insurance-convictions-simple-guide/

When will my conviction be spent?http://hub.unlock.org.uk/knowledgebase/spentposter/

http://hub.unlock.org.uk/things-to-know-if-youve-got-an-unspent-conviction/

Mental Health

Even the process of getting arrested can be very stressful and if you are charged, court cases can add further strain. Take care of your mental and emotional health.

Mental Health Issues in Custody 

Some of the questions you will be asked when you are booked in at the station will concern your physical and mental health (including whether you have a history of self-harm). The stated purpose of these questions is to ascertain whether you have any disabilities and/or pre-existing health conditions which may put you at risk while you are in custody. It is important to realise that if you tell the officer booking you in that you do have mental health problems and/or a history of self-harm OR answer no comment to those questions, the police are very likely to regularly check up on you when you are placed in a cell. This can be unpleasant and seriously disrupt any attempts at sleep. On the other hand you will need to declare mental health issues if you want to have access to an appropriate adult (see below). If you think you are likely to be arrested on a demonstration, it is worth considering how you will deal with this. Our recommendation is to do whatever makes you feel safest.

LINKS:

Activist Trauma Support archived resource:  https://www.activist-trauma.net/

Your details and biometric information will be recorded

You can be required to give your DNA and fingerprints for any offence, and they can be held indefinitely. The police can’t use force to take your photo but they can take your photograph without your consent (eg if you are not looking). People have made requests for the police to destroy these records, once cases have been dropped, but often without success. 

Non-recordable offences

Breach of the Peace (not a criminal offence) and Obstruction of the Highway (a ‘non-recordable’ offence) – they should not take fingerprints/DNA if arresting for these offences and you can and should refuse to comply. 

LINKS:

https://greenandblackcross.org/guides/what-happens-if-im-arrested/2-what-happens-when-i-get-arrested/

Financial Implications

If you are charged with an offence and found guilty there can be lots of different financial risks to plan for: travel to court, court costs, fines, cost of legal representation (if you don’t qualify for legal aid and are not self representing), compensation and your possible loss of earnings. If you are found not guilty then courts will compensate your travel and so do keep receipts. XR reimburses travel costs to court where the financial support is necessary apply by emailing xr-arrestwelfare@protonmail.com.

Read XR Legal Support’s Defendant’s Guide to Court Finances tinyurl.com/defguide2

Legal Aid

Some people can qualify for legal aid to cover some or all of their defence costs. Defendants will automatically get free legal aid if they’re under 18 or receive: Income Support (IS); Income-based Jobseeker’s Allowance (JSA); Universal Credit (UC); State Pension Guarantee Credit and income-based Employment and Support Allowance (ESA). They must also pass the IOJ (Crown Court trials are deemed to automatically satisfy this test).

If none of the above apply then the means test process determines if a defendant qualifies for legal aid. It takes into account: income; family circumstances, eg number of children; essential living costs, eg mortgage or rent. Eligibility also depends on the type of case and where it’s heard.

You can find more info about legal aid and a link to the financial eligibility calculator here

https://www.gov.uk/guidance/criminal-legal-aid-means-testing

If you don’t qualify for legal aid then it is worth asking your solicitor to make a hardship appeal if your application is turned down as we have been hearing of many defendants who have qualified this way. If you don’t then it is likely you will need to self represent or make a contribution towards the cost of legal representation - depending on the agreement you come to with a lawyer

Either way legal aid only covers defence costs and so also weigh up how much is the possible fine, and if you are liable for compensation (for instance damage to property etc)? 

If you are found guilty, don’t forget you will need to take into account court costs and the prosecution usually apply for a contribution to their costs. If your solicitor is not local, make sure they are experienced in working with clients via the phone/skype to save the cost of travel expenses to solicitor meetings. Also if you take part in an action that is far from where you live, you may need to pay travel expenses to several court hearings. 

If the court sentences you to a fine, this is means related. The court can also order that you pay compensation and a Victim Surcharge.

Some people may not want to pay these fines and costs. It is important that you take legal advice as wilful refusal to pay can mean (in extreme circumstances) that you risk deductions from your wages, bailiffs being instructed or being sent to prison (and the costs could still be due post prison).

XR note: XR don’t pay for costs, however they do encourage you and local groups to make crowdfunder pages to cover them. Such as those here www.crowdjustice.com/extinctionrebellion/. The Court sets fines to be a punishment and if public crowdfunder pages explicitly state that this is the intended aim, then it could cause the Court to set higher fines in general or impose a different sentence. 

Please exercise caution when describing the crowdfunder ‘XR Local Group Costs’ would be fine, but not ‘Help pay XR Court fine’, for example.

LINKS

Self - representing: http://ldmg.org.uk/files/how_to_defend_yourself_in_court.pdf

Legal aid: https://www.gov.uk/guidance/criminal-legal-aid-means-testing

Grounds for granting legal aid:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705578/interests-of-justice-desktop-aid-2018.pdf 

Court costs:  https://www.cps.gov.uk/legal-guidance/costs-annex-1

Maximum fines and means testing info:

https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/fines-and-financial-orders/approach-to-the-assessment-of-fines-2/

Insurance

You only have to disclose convictions when asked or if convictions are mentioned in assumptions or terms/conditions of cover. You never have to mention spent convictions. 

If you receive a conditional discharge your conviction will become spent at the end of the time period described by the discharge ie 6 or 9 months. However, it can still show up on enhanced DBS checks, making applications to stay in the UK/Citizenship, travelling abroad and so please read above if this applies to you.

You do not have to disclose any convictions you get during a policy until renewal, unless there is an explicit condition in your policy. If you are with an insurer who is making it difficult or more expensive then the Unlock website, where this information is summarised from, has  a list of insurers. 

http://hub.unlock.org.uk/knowledgebase/insurance-convictions-simple-guide/

https://hub.unlock.org.uk/knowledgebase/list-insurance-brokers/

Mortgage Applications   

When applying for a mortgage you will need to declare any unspent convictions. 

Being under 18, having learning difficulties or mental health issues (even if you do not have a formal diagnosis)

You have the right to an “appropriate adult”, this is someone who at some points during their detention, can be with detainees who are under the age of 18 or who have learning difficulties or mental health issues. 

A parent or guardian or appropriate adult must be called and be present for any police interview. The police can refuse for a nominated person to be an appropriate adult, and they may not agree to someone who has a criminal record or who was involved in the action. The default expectation of the police is often that it will be a parent or adult sibling. However, it doesn’t have to be and you can have one of these or another person of your choosing in mind before going out on an action. If you don’t provide your own appropriate adult the police may find a social worker, but this is not normally recommended. The police might also use an appropriate adult scheme to source one for you.

Please also read notes if appropriate on Mental Health above.

XR note: You might want to think about getting an appropriate adult ready before you go on an action. They don’t need to be with you at the action and better that they don’t know any details but perhaps they could know to expect the call from the police station. We recommend this as there is always the risk of arrest at an action, and so it is about being prepared for every eventuality, even if you haven’t done anything wrong. Police advice, however, is that where an adult is aware of your actions in advance, or involved in the protest, they are unlikely to be accepted as an appropriate adult.

Multiple arrests - Is it different if I’ve already been arrested, charged or convicted?

Having previous criminal convictions, especially for similar offences, can affect 1) the likelihood that you are charged, and 2) the sentence you receive if convicted.

Effects on your chance of being charged

If you have repeated arrests, especially for the same or similar offences, you are more likely to be charged as the police and prosecutors consider there is a greater “public interest” in prosecuting you. Similarly, if you have previous convictions, your chance of being charged for a new arrest is higher.

You may also be less likely to be offered a caution, although we discourage people from accepting cautions and in all cases you should discuss the offer with a lawyer experienced in protest law.

In all cases, they should only charge you if they have enough evidence to believe they will win the case. The fact that you have previous does not mean you should just go along with it, or accept cautions, or plead guilty if charged, and you should certainly still respect the “No Comment” advice.

If you are charged, you may be less likely to be released from the police station before first appearance in court. In addition, you may also be kept on remand (jailed for the period of the trial) if the new offence is charged. If you are arrested after you have appeared in court for a previous offence when the case for that previous offence is ongoing, then again sentencing for the previous offence may be harsher.

Effects on sentencing

If you have a criminal record, you are likely to get a heavier sentence if convicted of a new offence. This is more likely the more recent your previous convictions are, and if they are similar to the new offence. You are also likely to receive a higher sentence for offences you commit while you are on bail following other arrests.

When sentencing, the court can take into account recent other criminal records. Recent probably means within last 5 or so years but cautions, guilty pleas and guilty verdicts will count. Other arrests or charges waiting for trial shouldn't count.

If you received a conditional discharge for the first offence, you could be re-sentenced for that offence if you breach the conditional discharge by committing a second offence.

Should you speak to the media?

Sometimes the media will contact you and sometimes you will want to share your story and seek it out. If you'd like to reach out to the media or need advice or support handling the press, please contact Zoe from the XR Press Team on zoeblackler@gmail.com or the more general email press@risingup.org.uk.

Be sure to weigh up the consequences when thinking about media attention. It is of course part and parcel of a campaign to draw further media attention and whether you wish to speak to them is an individual decision for you.

It is important to think about the timing of sharing your story, speak to an experienced protest solicitor (see emails above) as it might be better to have coverage after a trial has concluded in order not to compromise your case. And also consider potential local attention it might bring at whatever time you do decide to share it. You should be aware that media comments can be reviewed by the prosecution and used in court – particularly if the comments are inconsistent with anything you say in a trial.

To read more about media:

https://greenandblackcross.org/guides/ive-been-arrested/8-media/

Read more about social media dos and donts here:

https://greenandblackcross.org/guides/ive-been-arrested/4-social-media/

If you do want to speak to the media then solicitors recommend not talking about the 'particulars of your case' before the conclusion of your trial. You can talk in general terms 'It is important for me to take part in protests/take action...' rather than 'It was important to stand on Waterloo bridge...'. Some may be more relaxed about potential consequences but whatever your personal stance it's important that you go into any media interactions from an informed position.' 

Being Arrested

(nb this section is adapted from guidance from Green & Black Cross, a grass-roots project providing advice and support to protestors)

You should be told why you are being arrested and the name or number of the arresting officer. You should ask what station you are being taken to, although at large protests, the police officers do not always know.

You will probably be handcuffed. You will be searched – usually just a ‘pat down’ by an officer of the same sex as you. The police are only allowed to strip search you if there is good reason to believe that you are concealing an item such as a weapon or evidence or drugs.

You will be taken to the police station. This may be individually, or you may be taken along with other arrestees. At mass arrests in the past, the police have used buses for multiple arrestees, and there have been very long waits before arrival at the police station. 

You will get ‘booked in’ at the police station. Your personal belongings will be taken from you. These are listed on the custody record and usually you will be asked to sign to say that the list is correct. You do not have to sign, but if you do, you should sign immediately below the last line, so that the police can’t add something incriminating to the list. You should also refuse to sign for something which isn’t yours, or which could be incriminating. They will ask you all kinds of questions about who you are and what you do. You do not have to give any details when arrested or at the police station.

If you do decide to give your details, you only need to give your name, address, and date of birth. You are only legally obliged to give your details if and when you appear in court.

They will take your photograph. You don’t have to comply, but they are allowed to use “reasonable force” to view your face.

They will take your fingerprints and DNA. Again, you don’t have to comply, but they are allowed to use “reasonable force”. Two important exceptions are being arrested for Breach of the Peace (not a criminal offence) and Obstruction of the Highway (a ‘non-recordable’ offence) – they should not take fingerprints/DNA if arresting for these offences.

You will then be put in a cell.

You have the right to free legal advice. You also have the right to have an “appropriate adult” if you are under 18 or have learning difficulties or mental health issues, even when undiagnosed. Police advice, however, is that if they know your chosen appropriate adult is aware of your actions in advance, or involved in the protest, they are unlikely to be accepted. The alternative is for the police to arrange for someone to attend from an independent appropriate adult service.

You have the right to have a solicitor present during an interview. We recommend that you use a solicitor with experience of supporting activists. If you have a solicitor coming, refuse to be interviewed before they arrive. If they can’t be contacted within a couple of hours then you may have to just give a no comment interview.

Do not use the duty solicitor. They are unlikely to have experience in protest law, and so ask for an experienced solicitor. For London based ones with capacity and who are already representing XR clients see tinyurl.com/lonsolicitors. You want a solicitor based in or near where your action is taking place, as this is where your trial will be. If you are looking for a local solicitor check out Netpol’s list netpol.org/solicitors/criminal-solicitors-2/. If there isn’t one near you it’s possible to call the nearest one or a London based one before your action to ask them to cover your area using an ‘agent’ as described above.   

You also have the right to:

  • A copy of the PACE codes leaflet. This tells you your rights in custody – ask for it.

  • A translator if English isn’t your first language.

  • Food that meets your dietary requirements – e.g. vegetarian/vegan/religious requirements

  • A doctor if feeling unwell.

  • A warm cell, including blankets and cups of tea/coffee.

You should prepare yourself for boredom, isolation, bad food, frustration, mild sensory deprivation, distressing noises from other prisoners, a bright light on 24/7 and being kept under constant surveillance. Remember, you can only be held for up to 24 hours (except for some very serious charges – unlikely in protest related cases). If you’ve prepared for the worst you may be pleasantly surprised!

If you are expecting to be arrested, bring along a book. Chances are you will be allowed to take it to your cell. You might also want to ask the custody sergeant for a pencil and paper to take to the cell.

You may be released in the early hours of the morning - so make sure you have enough money with you to get safely home; or that someone is available to pick you up.

https://greenandblackcross.org/guides/what-happens-if-im-arrested/2-what-happens-when-i-get-arrested/

Appendix 1

Common Charges

Here is a list of common charges. Please note:

  • The common charges will be different depending on which action you’re taking part in, read them and think about which ones might apply to your site/action.

  • The police sometimes arrest people for offences that they aren’t committing, and so it’s worth being aware of the breadth of the charges.

  • You can be arrested for one thing and charged with something different. You can be charged for something and then charged for something different/in addition.

  • The charges vary in their severity, where possible we have tried to give typical sentences for ‘first time offenders’. For a summary of maximum sentences https://bit.ly/2UwYc2J.

NB: THIS LIST IS NOT EXHAUSTIVE AND ONLY TAKES INTO ACCOUNT PROTEST RELATED LAW. THERE ARE OTHER CHARGES THAT ARE BROUGHT AGAINST PROTESTORS THAT ARE RARE, HARD TO PREDICT AND CAN HAVE LENGTHIER TRIALS, HEAVIER SENTENCES AND HIGHER COSTS. Examples would be charges in other areas of the law such as terrorism or aviation, bye laws, or civil claims. If you have specific questions re future planned actions please email hypothetical questions to xr-legal@riseup.net two weeks prior to action day. The reason we ask for them to be hypothetical is to reduce the chance that people answering them could be considered complicit.

The majority of the information below has been taken from the Green and Black Cross website. www.greenandblackcross.org with thanks and appreciation.

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. The offence is obstructing the highway itself, not other highway users, so it is not necessary for the prosecution to prove that anyone was actually obstructed.

The obstruction has to be ‘willful’, so you will often be asked to move by the police, and if you do not, then this could be used as evidence of your ‘willful’ obstruction in cour

Sentencing starting point: conditional discharge, the maximum penalty is a fine of £1000. First time offenders would be likely to receive about £200.

Section 12/14 of the Public Order Act

Sections 12 and 14 of the Public Order Act (1986) allow conditions to be imposed on ‘public processions’ and ‘public assemblies’.

A ‘public procession’ constitutes 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. The law states that conditions can be imposed ‘as they appear necessary to prevent serious disorder, disruption of the life of the community, or intimidation’.

Conditions may be more likely to be imposed if you talk to the police ahead of your action. If you or your group are considering this, please read the GBC guide on notifying the police of actions.

https://greenandblackcross.org/guides/planning-an-action/2-should-i-notify-the-police/

In order to be convicted of an offence under section 12 or 14, it must be proved that you were aware of the conditions and then chose to break them. A senior officer may make an announcement, or sometimes visual displays or leaflets are used.

Do not pass on leaflets, make announcements, or tweet about conditions under Section 12 or 14. This is doing the police’s work for them. It is often very difficult to hear, or comply with, conditions, so by passing on the message you make people liable for conviction under the act.

These laws give the police power to move you, using force if necessary, in order to comply with conditions. You can go limp. Knowingly not complying with the conditions is an offence under the act, and can be grounds for arrest, although it is a defence to prove that the failure to comply arose from circumstances out of your control.

Sentencing starting point: a fine, the maximum penalty is a fine of £1000. First time offenders would be likely to receive a fine of about £200.

It’s worth noting that there are three possible charges under a Section 14, one of these is ‘participation’ and is described above. There are two other possible charges of conspiracy and organising. These two carry much heavier fines and in theory could carry a custodial sentence, although we are not aware of anyone being sentenced in this way previously. Where a protest has an identified organiser, that person (or persons) may commit an offence if they fail to comply with an imposed condition

Sentencing starting point: a fine, Community Punishment Order for anyone convicted as conspiring or organising.

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. 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.” They must release you once the threat of the breach of peace has passed.

If arrested for breach of the peace, you should not give any personal details. The police will try and persuade you to do so, but you are not legally obliged to give details (or DNA or fingerprints). Because you must be released once the threat of a breach of the peace is over, even if you have not given your name and address, that cannot be a reason for the police to hold on to you.

The police 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).

If the police deem either that you have actually committed a breach of the peace or that your release is likely to cause a further breach of the peace, then you can be held overnight and put in front of a judge to be “bound over” for a period of time and some cash, approx £100. Basically this means you agree to ‘keep the peace’ for a certain period of time and agree to pay the specified sum if you do not keep to the agreement. This is not a conviction and will not be put on your permanent record. If you refuse the bind-over you can be jailed for contempt of court for a few weeks or until you agree to it.

Sentencing starting point:a 'bind over' to keep the peace or be of good behaviour for a period of time 

Please note: The above advice applies to England & Wales. Breach of the Peace is very different and much more serious in Scotland.

Trespass & Aggravated Trespass

Trespass

Trespass alone is a matter of civil law, which means that the police have no power to arrest you for it; police may nonetheless help landowners remove trespassers from land.

Trespass is entering – or putting property on – land that belongs to someone else, without their permission.

If you have ‘implied permission’ to enter somewhere – for instance a shop open to members of the public – then you are not committing trespass until you have been asked to leave by the owner of the building or their representative. In a shop this is often a manager, but should not be a police officer. If you fail to do so, then you could be taken to a civil court (‘sued’) by the owner.

Aggravated Trespass

Aggravated trespass is a criminal offence, so you can be arrested for it.

You must be doing two things to commit aggravated trespass:

1. Trespassing

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 police officer, or if they return to the land in question within a period of three months, this is an additional offence.

Sentencing starting point:really varies dependent on who you are and where you were, from conditional discharge to suspended sentence. 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.

Obstruction of a Police Officer & Assault PC

The threat to arrest for obstruction is widely used by the police at demonstrations.

Under the Police Act 1996 s89 it is an offence to assault, resist or wilfully obstruct a constable in the execution of his/her 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.

Being limp makes it more difficult for a police officer to move you, and is not obstruction.

Whilst this isn’t the heaviest of charges, it looks worse than the offences covered so far.

There are more rare incidents when someone is accused of assaulting an officer. Both are considered at magistrate’s courts only. Note that simply refusing to give your details is not obstruction. ‘Assault’ means intentionally or recklessly causing a police officer to sustain  immediate unlawful violence. It is not necessary that there is any injury to the officer.

It must be proved that a person has assaulted a police officer in the execution of their lawful duty. 

Sentencing starting point:Community Punishment Order

Criminal Damage & Theft

Criminal Damage

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). Defence can often hinge on the ‘lawful excuse’ aspect of this offence. This offence is divided into two: Damage below or above £5,000.

If value of damage is under £5,000 Sentencing starting point: conditional discharge and compensation order (i.e. you may be asked to pay back the costs of cleaning and repair), tried in a Magistrates Court. Maximum sentence: custodial sentence of up to 3 months, £2,500 fine
If value of damage is over £5,000 Sentencing starting point: a suspended sentence* and compensation order, tried in either a Magistrates Court or Crown Court. Maximum sentence when tried in Magistrates Court: £5,000 fine and six month custodial sentence. Maximum sentence when tried in Crown Court: custodial sentence of up to 10 years.

*A suspended prison sentence is the term given to a prison sentence imposed by the court, and then suspended (i.e. ‘delayed’). The court may decide to delay the prison sentence to allow the defendant a period of probation, or to undertake treatment for an addiction, or to meets conditions in the community. If the defendant breaches the terms of the suspended sentence, or commits another offence, they are likely to be sent to prison to serve the original prison term imposed.

Having items with intent to cause Criminal Damage

Activists found on their way to an action with bolt-croppers 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!

Theft

This is “dishonestly appropriating another’s property with intent to permanently deprive them of it”. Maximum penalty is 7 years prison but this would involve property worth millions of pounds. There is a separate offence of possessing items of police uniform s90 Police Act 1996 with a maximum penalty of a fine.

Sentencing starting point:conditional discharge, possibly a fine 

Violent Disorder

Violent Disorder and is a serious ‘behavioural offence’ of the Public Order Act (POA).

Violent Disorder (section 2 POA) is committed where 3 or more persons together, use or threaten unlawful violence that taken together could “cause a person of reasonable firmness to fear for their safety”. The person does not have to be present,

The 3 people involved do not need to co-operate with each other they just need to be present in the same area at the time the offence is committed.

The maximum penalty is 5 years in prison and/or an unlimited fine.

Sentencing starting point:roughly 25% chance of custodial sentence, approx. 6 months, otherwise suspended sentence or Community Punishment Order. The maximum penalty is 3 years in prison and/or a fine.

Public Nuisance

Public Nuisance has begun to be used by the police against protesters relatively recently. It can be tried in either the Magistrates or the Crown Court (it is known as an “either way” offence).

What we do know is that there is a risk of higher sentences and expensive and lengthy court cases that last weeks. 

If you want to lower the risk of public nuisance being used against you, then you might want to think about the following options: leave an action if police are present; don’t take a role where you look like you are organising; try to be seen to minimise the impact on the public. You can always watch from a safe distance until the coast is clear and then rejoin. Although the risk can be minimised, arrest for Public Nuisance on protest actions remains a current possibility and so it’s about making informed choices. It’s worth noting that necessity defences were ruled inadmissable in the most recent Public Nuisance protest case, and so perhaps this charge is the least favourite for attempting to force the courts to listen. Further notes on Public Nuisance: http://bit.ly/publicnuisance 

Further reading:

Table of common offences: https://bit.ly/2UwYc2J 

This is a handy summary in table form which shows you the common charges, whether they would be tried in a magistrates or crown court and maximum sentences. Mostly people have been given Conditional Discharges and costs of a few hundred pounds, however only small numbers have been sentenced at this point and also most have not been repeat convictions.

Understanding Laws Affecting Protestors by Netpol:

https://netpol.org/resources/anti-frackers-guides/

Sentencing Councils full list of offences tried in Magistrates Courts (many not protest related):

https://www.sentencingcouncil.org.uk/offences/

For Sentencing Councils full list of Crown Court offences, see https://www.sentencingcouncil.org.uk/crown-court/

Sentencing on Conviction by Netpol

https://netpol.org/wp-content/uploads/2015/04/sentencing-on-conviction.pdf