Court Finances

Last updated: 04/06/2020

This guide is not intended to be comprehensive - it is an attempt to share collective experience up to this point. If you have feed in, it would be most gratefully received xr-legal@riseup.net.

As you'll imagine this isn't a straightforward area, however, here we attempt to simplify some of the information. Please be aware that most of this information is both general and mostly applies to cases heard in the magistrates’ courts, and there is no guarantee that it will be the case for you.

Access to Justice

Our key piece of advice is to contact a protest experienced solicitor before you make any decision about pleading. For this reason, through funds raised on the CrowdJustice crowdfunder, we have established an Access to Justice scheme which provides funded initial legal advice from one of the protest experienced solicitors who already represent XR Rebels. For the list of solicitors please contact legalfinancialsupport@riseup.net. The Access to Justice scheme is available to all XR rebels and we encourage everyone to take advantage of it.

What The XR Central CrowdJustice Fund Will Pay For:

  • A review of your case by a lawyer with protest experience from one of the law firms who already represent XR defendants listed below.
  • Specifically, this will include:
  • A legal aid eligibility check
  • Obtaining and reviewing bodyworn footage
  • Preparation of the PET form (required if pleading not guilty)
  • Advice on the likely outcome of your case and the potential financial and legal consequences and their implications.
  • This offer will not normally extend to funding towards professional representation at trial.

 

Note that if you are found not guilty after a trial or the case is dropped ahead of your trial date then you are entitled to claim most of your costs back directly from the court. This includes travel receipts (to court and to solicitors meetings) and anything you have paid for towards representation.

 

We know that there are lots of decisions to make when facing court and that money is a key factor. The safest advice is that you should take only your own financial circumstances into account when making decisions. There is potential for recouping costs from XR Local Group crowdfunding after the fact, but this can’t be guaranteed. See below for more details.

For ease of understanding we have separated court finances into two sections

Section 1 Solicitors Fees 

Section 2 Prosecution and other costs (including fines)  

Section 1 Solicitors Fees

In this section we talk about how much it might cost you to be represented by a solicitor - they are also called ‘defence costs’.

Legal Aid

  • In the words of one of the experienced solicitors ‘you might be surprised at eligibility of legal aid’. 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. However, even if you don’t appear eligible it is always worth confirming this with one of the solicitors before ruling legal aid out, reasons for this are detailed below.
  • If your application is turned down first time round, you can appeal. You can put in a “hardship application” - this takes into account other factors that weren’t considered with the initial application. Talk to your solicitor, as several defendants have been awarded legal aid following appeal. 
  • Even if you don’t qualify for legal aid it may be worth talking to the experienced solicitors as there may be other options, especially if you have co-defendants who do have legal aid
  • It is always worth applying for legal aid as all of the costs of your defence will be covered (but not court costs or fines). 
  • Legal Aid applications are divided into 2 parts - 1. Merits (the facts of the case) and 2. Means (your financial circumstances).

 

One of the questions we get the most is how much will it cost to pay for a solicitor to represent me?

A group of protest experienced solicitors who have been representing XR Rebels have agreed to reduced rates to represent XR defendants. If you are looking for a solicitor please email legalfinancialsupport@riseup.net who can share the list of solicitors offering the reduced rates and who are taking on new defendants

Single defendants (who do not have legal aid). Please note that, post-covid 19, it seems likely that most trials will involve just one defendant.

 

How much might it cost for a solicitor to represent me if I plead guilty at the first appearance/ plea hearing? 

£300 including VAT

This is the amount agreed by the solicitors who are representing XR Rebels. It isn’t a fixed price for solicitors not on this list. 

Many defendants in this position do not have a solicitor to represent them in court. However, one reason you might want a solicitor at the plea hearing when pleading guilty is to ensure that you are given credit for your early guilty plea and receive a Conditional Discharge of 6 rather than 9 months, and to ensure the courts take means testing into account when issuing any fines. It isn’t necessary to have a solicitor and XR Legal Support will support defendants who chose to self-represent.

There are advantages and disadvantages in arranging to be represented at your first appearance.

If you are reasonably confident you may want to take the chance to address the court as to why you chose to act to prevent a climate emergency.You may want to prepare a statement to read to the court and bring along a couple of written character references. You can also tell the court about your financial circumstances.

On the other hand you may be very anxious and nervous about speaking in court and want an experienced solicitor to address the court on your behalf. The solicitor can then say these things for you.

  • Most defendants so far  have been able to make a statement explaining motivations when pleading guilty. Every defendant should speak to a protest experienced solicitor, when weighing up the choice to plead guilty or not guilty through the Access to Justice scheme (see above). 

 

How much might it cost for a solicitor to represent me if I plead not guilty and my case is taken forward to a one day trial? 

 

£1500 to £3180 including VAT and including the £300 above  

  • On the day of trial either your solicitor or a barrister could be your advocate. The daily fee quoted is the same for both and from our experience there is no advantage to one or the other. Some solicitors are hugely experienced and talented at advocacy and others prefer to concentrate on the preparation (in collaboration with barristers) and hand over court advocacy to barristers.

 

How much might it cost for a solicitor to represent me if I plead not guilty and my case is taken forward to a trial across several days?

 

 £1500 to £3180 plus £600 for each additional trial day.

 

  • Where there is a single defendant we are not expecting more than one day trials, but defendants should be aware that in the unlikely event there was a second day, this would be charged at £600. Adjournments do not count as second days, however, there may be additional fees - even if it is due to something out of the defendant’s control. If it is adjourned, the fees may be reduced but it can’t be guaranteed).

Co-defendants

  • You are a co-defendant if there is one or more of you facing trial together.If you are in the same court at the same time on the same day as other defendants, you are taking part in a joint trial. In the past there have been up to eight defendants in the same trial, but as noted above it is likely that most trials post-Covid will have a single defendant - if you have a solicitor representing you they can tell you whether you are being tried alongside other XR Rebels. If you are self-representing then we recommend you join the XR Defendants channel on Mattermost or email group by emailing your consent and your Mattermost or email details to xr-legal@riseup.net.

 

The quoted fees above also apply to co-defendants.

 

Section 2 Prosecution and other costs and fines

 

Here we will focus on prosecution/court costs, victim surcharges and fines.

  • The vast majority of offences faced by XR defendants can only be tried in the magistrates court. If your case is more serious and is tried at a Crown Court, different costs apply (you can see a summary of what common charges are tried where and their maximum penalties here https://bit.ly/2UwYc2J).
  • If you are facing a higher level charge - please read the Common Charges in Appendix 1 below for guidance on starting sentences.

 

Cost of early guilty plea

Prosecution/court costs and victim surcharges

For a guilty plea at the plea hearing most defendants have been asked to pay £106 - this includes prosecution/court costs (£85) and victim surcharge (£21). These two costs are described in more detail below.

Prosecution/court costs

CPS guidance indicates that prosecution/court costs for a guilty plea at first hearing can be in the range of £85 to £160. Our experience at the cases following the April Rebellion is that defendants have received costs at the lower end of this range, even if charged with more than one offence. The prosecution costs element is means tested and so if you are self representing then please do make a case for a reduction based on your income and do ask for time to pay. If represented, your solicitor will do this for you. 

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

Victim Surcharge

The victim surcharge (which funds a range of victim charities and services) is currently £21 per offence if a conditional discharge is given.

Fines

There have been a small handful of cases where rebels have received a fine after pleading guilty at the plea hearing or by post/email. However this is extremely unlikely, unless you have several previous convictions for a similar offence.  The courts offer a discount of a 1/3rd on fines for an early plea. You can change your plea to guilty at any point - but the longer you leave it before notifying the court, the less “credit” you will get.

Cost of being found guilty at trial

Prosecution/court costs and victim surcharges

General guidelines for prosecution/court costs for a trial are around £600 - £900 per day (many  single defendant trials last half a day and the costs should reflect that) depending on means, how long the trial is, and how many people in the trial. In joint trials the costs should be divided between the defendants.

If you are a single defendant (ie you haven’t been grouped with other co-defendants) it’s  likely that your trial won’t last longer than a half a day and the costs should reflect that. If the trial only lasts half a day and you are self representing be sure to ask for costs to be reduced by upto a half . 

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

 

Victim Surcharge

The victim surcharge is £21 per trial if a conditional discharge is given, as above. If a fine is given as a sentence for a low level offence, and not a conditional discharge, then the victim surcharge is likely to be £30. You can read more detail at the link below. The offence does not need to have a victim for a victim surcharge to apply, it applies in all cases. This is added to the prosecution/court costs as described above.

https://www.sentencingcouncil.org.uk/about-sentencing/types-of-sentence/other-orders-made-on-sentencing/what-is-the-victim-surcharge/

 

Fines

Almost all the Rebels who went to trial on charges following April received a conditional discharge plus costs: the conditional discharge was usually for 9 months. Very few were fined. We hope that will remain the case for the people charged with Obstruction following the October Rebellion, but the courts can impose fines for this offence. These are likely to be about £250. Please note that if you do not turn up to your trial or do not communicate with the court before your trial, you are more likely to be given a fine.

What will happen to you very much depends on the charge you are facing. Most ‘first time offenders’ will receive the ‘starting sentence’ We have attached a list of common charges as Appendix 1 and we recommend you scan your eyes over it to see what your starting sentence might be and for maximum sentences see this handy table https://bit.ly/2UwYc2J

Please note that if you were given a conditional discharge and are then arrested and are convicted of a second offence whilst your conditional discharge is in effect, you can be re-sentenced for the first offence as well as sentenced for the second. So you could be fined for both offences. You may be liable for other costs such as damages, particularly if charged with criminal damage, and civil claims. In rare cases, the court can order compensation if a business has lost money.  

If you plan to refuse to pay any of these penalties, we strongly advise that you seek legal advice. Other financial considerations include travel to court, travel to solicitors meetings, and potential loss of earnings. As noted above if your case is dropped or you are found not guilty you can make application to the court for most of these expenses, but not loss of earnings, from the court.

XR can refund travel costs to court regardless of your plea or conviction. Please email xr-arrestwelfare@protonmail.com for details.

 

XR Local Group support for Court Finances

XR have launched a strategy for the crowdfunding of legal costs for defendants from XR actions.

Local XR groups are encouraged to set  up crowdfunder pages to raise legal funds for rebels in their area, using the CrowdJustice.com platform. Whilst there is also a central XR legal crowdfunder, this is primarily for funding the Access to Justice scheme,  and legal challenges, such as appeals and judicial reviews, not for public order offences.

Local XR groups have been contacted with this strategy so should now be aware of it, and are encouraged to contact local rebels about it, but do also please raise this with them if you feel comfortable doing so. However do note that local groups are not obliged to follow the strategy, and may just not have the resources to do so.

As this strategy relies on donations, the level of which cannot be predicted (nor how great the demand area to area), no guarantees can be made that financial support will be available for you, so for the time being please assume that you will need to pay all your legal costs yourself (subject to any application for legal aid that you might be making.) 

Full details of this strategy, including notes for local groups and defendants can be found here:

https://docs.google.com/document/d/1qTAY8YRjUNrD-kVoPu9__YLBMZj98mU1UPCBCBU9RJc/edit?usp=sharing

For any enquiries or suggestions, please email xr-legal@riseup.net

 

Links to source material

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

https://www.sentencingcouncil.org.uk/about-sentencing/types-of-sentence/other-orders-made-on-sentencing/what-is-the-victim-surcharge/

 

Appendix 1

Common Charges

Here is a list of common charges. It is provided in its entirety for multiple reasons.

  • The common charges will be different depending on which action you’re taking part in.
  • 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, aviation or railway, 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 court.

Sentencing starting point: conditional discharge, the maximum penalty is a fine of £1000. 

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 conditional discharge, the maximum penalty is a fine of £1000. 

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:

Trespassing

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 depending 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.  

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. 

Note that “assault police” has now been replaced with the either way offence of assault on an emergency worker

 

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.

Sentencing starting point. If value of damage is under £5000: conditional discharge and compensation order, tried in a Magistrates Court. If value of damage is over £5000: suspended sentence and compensation order, tried in either a Magistrates Court or Crown Court.

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!

 

 

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 (many not 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