I had my trial for an April S.14 at London Magistrates' Court.
I was fortunate to be heard by an interested, thoughtful and considerate judge, and to be prosecuted by an interested, thoughtful and considerate prosecutor.
It was a guilty verdict but a very good experience, partly because of how much I learned and partly because I am sure that I surprised both men with information about how much more serious and extreme a state of climate breakdown we've reached than is indicated by the IPCC reports, dire though they are; and because I made arguments that they had not heard before and which engaged them. I know this because they both made a point of telling me so.
I'm going to list, below, for others to use as they wish:
- the procedure to expect in court and how to use it
- points regarding the defence of necessity that we have to be prepared for
- the judgement, which explains in painstaking detail why we are almost certainly not going to get not-guilty verdicts for S.14 charges on the grounds of necessity
- aspects which were useful for me and may be for you
Prosecutor (and the case) deals with four things
- was the imposition of the S.14 order lawful?
- were you properly informed of the order by your arresting officer?
- did you decline to move when informed of the order and asked to?
- and after you declined to move, was your arrest and removal properly carried out?
Prosecutor sets out for the court why the all of the above are true.
If you've objected in any way to any aspect of the arrest itself, s/he'll call your arresting officer, ask him/her a load of questions about the arrest, and then you cross-examine the officer.
Prosecutor calls the Chief Inspector (now Superintendent) who imposed the order and asks him a load of questions about the procedure he followed to ascertain the imposition of the order was appropriate, proportionate and lawful. Then you cross-examine the Superintendent.
N.B. you don't have to cross examine them; you only do this if part of your defence is to say that either your arrest itself was not performed properly or the imposition of the S.14 order was inappropriate in any way. I wasn't arguing either of these so my arresting officer wasn't called, and I said 'no questions, thank you' when the prosecutor finished with the Superintendent and offered him to me.
(In case anyone is interested, I'm not arguing the imposition of the order was unlawful because:
a) I think to do so goes against what we're saying; which is that widespread and significant disruption is necessary to force the government to act; and that this is our aim. I do think that bringing central London to a standstill for ten days is, indeed, significant disruption, on the level and in the context of the day to day lives of ordinary people.
b) the Chief inspector, as was, when he considered what to do about it, was operating in the micro level - the day to day realm of policing a city; while we are operating on the macro level - preventing the destruction of the biosphere of the planet and the extinction of life on earth. Within the constraints of the micro level he operates in, the decisions he made probably were, I think, appropriate and proportionate; or at least, could genuinely be considered such by him and by others. I think our argument that the disruption we caused pales to insignificance next to the planet-wide disruption that's coming is totally valid - but that it's outside the boundaries of his day to day decision-making responsibilities. I also think that the Superintendent has a responsibility to go beyond the constraints of his job in the decisions he makes on the ground, in the context of climate and ecological breakdown, because it's a more important issue than anything else he deals with in his job. But I think that because I, like all of you, am operating on the macro level! And the Superintendent, and his direct superiors, are not. His ultimate superiors, in the Home Office, are; but he doesn't answer directly to them. I think all power to any of you who intend to make these disruption comparison arguments but I would advise those of you who are to put time and effort into preparing that argument, collate facts and reputable, solid findings that support that argument and prepare to the nth degree how you plan to persuade the court that the argument is valid.
Anyway, the prosecution rests his/her case. You then present your evidence. (You don't have to do this - you can keep all your stuff to your closing argument at the end of the trial, if you want to. But I recommend presenting evidence, because: a)- it gives you a break, splitting your stuff into two halves, b) - Judge and prosecutor are human, and more likely, I think, to absorb killer points if they're delivered in installments, not in one big long lecture, c) - it gives you a second chance, in your closing argument, to present anything you forgot first time round, in your evidence [it's nerve-wracking, standing up and speaking in a court room]. I also recommend making yourself some prompt cards that list your killer points in bullet points, both for your evidence section and your closing argument.)
This must comprise of facts - avoid opinion and belief here. For example; scientific reports, film and radio programmes you've watched and listened to, events from history and your own previous actions are facts.
The prosecutor cross examines you when you finish. The questions s/he asks will only be concerned with what s/he's trying to prove - that the S.14 and the arrest were lawful.
Prosecutor makes his/her closing argument.
You make your closing argument.
Your closing argument
This is your argument as to why you should not be criminalised for what you did. Here, cite:
- any previous case law you want to use;
- why you believe you have to do what you're doing. This is where you can bring in opinion, belief, conscience, etc.
Then the Judge makes her/his judgement, and explains the reasons for it.
The prosecution's argument is that in order to prove 'necessity' - that your act was not criminal because it was performed in order to prevent a harm greater than the harm you did in committing the act - you must be able to identify:
- that the harm you sought to prevent was immediate and imminent
- the person/s whom you saved from that harm by means of your act
- that the greater harm was prevented
And the Judge agreed with this. His judgement explained why he agreed with this, and why I was unable to fulfill these criteria in my defence.
So, if you're arguing a necessity defence, prepare your defence giving great attention to these three clauses and how you can address them.
- Prioritize information that addresses these clauses; put that information at the start of your evidence, so that if you lose your thread or start to ramble and are stopped, you've already got this info into the arena first! You might not be able to meet the strict requirements of these clauses, but you can address them.
- Set out your argument at the start of your evidence, in a brief introduction, listing what you're going to cover and making your best killer points here; then elaborate on each subject in your list after doing that; again, so that if you're stopped, you've got your killer points in first. For example, 'I'm going to show this (one sentence killer point); then I'm going to show this (one sentence killer point); then I'm going to show this', and so on; then when you've listed them all, 'So, to deal with point one first, the report such and such looked in detail at ABC and found X,Y and Z'; and give a one sentence description each of X,Y and Z, and a good, incisive, brief quote for each one, or one good, slightly longer quote from the report's conclusion, summing it up neatly and crisply.
- Start and end both your evidence and your closing argument with killer points; the things you most want those present to remember and reflect on.
- Use your creativity, imagination and a 'thinking outside the box' approach, because you're not a lawyer, and you don't have to confine yourself to the strict parameters of the law.
- Be concise!
Judgement in my case
(My Judge's judgement his demonstrates areas in which I'd failed to make my point clearly enough, or in terms that hit home to the judge; so use it to hone your defences!)
- the science is uncontested, but the science is not on trial
- agreed that the situation is dire, urgent action is required and we're approaching a point we might not be able to return from
- it is not the court's place to decide the justness of the cause
- the law must be at all times neutral
- if the law forsakes its neutrality there would be societal breakdown immediately, not at some point in the future as I had argued was the likely consequence of failure to act on climate and ecological breakdown
- Gandhi and MLK did not attempt to argue that their actions were not criminal; in fact, Gandhi invited his prosecutor to bestow the highest penalty available to him, which the prosecutor duly did
Lawfulness of S.14:
- there's no question that the rebellion caused disruption and that this was its intent
- all the facets of the disruption, as described by the Superintendent in his evidence and as perceived by the judge himself, were described here
(N.B. three points he made here, which show my failings in making mine, were that,1, we lost the sympathy of many people because of the impact on their lives; 2, that many of the people we impacted were low-wage people struggling to get by already; and 3, to many people the blockading of traffic and the extra pollution thereby caused in terms of idling engines was illogical and inconsistent)
- that the three days that passed before the imposition of the S.14 indicated restraint on the part of the Met and respect for us as people of conscience
- that the impact on ordinary people of ambulances being diverted and police being diverted from other crime was important to consider
- what the defence is, in law
- there is no denying that the act that is the offence with which I'm charged is a criminal act, that's the core assumption of the defence
- the act being considered today is not the act of protesting, but the act of refusing to comply with the S.14
- any one of these acts of refusal to comply is inconsequential to our aim in itself; we would have to prove that all of our acts of non-compliance, in the aggregate, together might prevent the greater harm
- we can believe that our actions have led to political measures that would not otherwise have happened, but proving that is tricky
- how can the court know that our actions have been the means of change
- how can the court know that what change has happened so far will lead to the necessary change to prevent the greater harm
- this is impossible legal territory
- it cannot be satisfactorily and appropriately defined
- we cannot name two or more people who will definitely die as a result of the greater harm. Without that, necessity cannot be proved, in law
- it is accepted by the court that the threat, in proving the defence of necessity, does not have to be immediate upon the act - i.e. the fire that one might smash a window to rescue a child from. But we do have to be able to prove that the threat - the greater harm - will definitely happen
- we haven't proved that. The harms being warned of are maybe years away from happening, maybe happening in another country.
- this means that the links in the chain are not close
- we will see, in years to come, what our actions might have achieved
- to find that the links in the chain were close enough, now, to prove necessity would be 'a massive extension' for the judge
- which he cannot, in law, make
- such decisions are made by the higher courts, not by magistrates' courts
- magistrates' courts are not courts of precedent
- those involved in this action understood the consequences of their actions and accept that the consequences must be paid
- he is satisfied that the S.14 was lawful
- he is satisfied that you acted in conscience, and this is a significant fact of mitigation
- but the law of necessity must be kept in very close confines
- sadly, he finds us guilty of the charges that have been brought.
- Both Judge and prosecutor made the point repeatedly, from the start, that the science is uncontested. I had already known this, because of this email group, so I had prepared to show how the IPCC reports have been demonstrated to be dangerously conservative, and I did that, taking the court through the What Lies Beneath report - its assessment of the science and the several levels on which the IPCC reports, and especially the Summaries for Policymakers, are deficient.
- Both Judge and prosecutor told me that I'd told them science that they didn't already know. I felt this, as I was saying it, and I am absolutely sure, from his demeanour during the trial and especially at the end, that the prosecutor was affected, as a human being, by my evidence.
- I acknowledged the grey and fluid boundary between fact and belief. I made the point that the entire judicial system itself is predicated on a belief; that the human race requires a system for the prevention of harm and that it is the duty of a state to provide such a system and use it to prevent such harm. And that if my actions arise from belief, it is from the same one upon which the judicial system, in its entirety, rests. We have a duty to prevent harm.
The Judge complimented me for this argument.
- I used the XR examples - Skeleton Argument, Witness Statement and Exhibit, from rebellion.earth (Act Now > Resources > Legal Resources). I adapted them to reflect my own experience and beliefs and sent them into the CPS and to the court, as instructed, 4 weeks before trial. Two things to note about this:
1) The Judge hadn't read any of them. The CPS had read the Skeleton Argument, and made reference to it three times; but made no reference to the Witness Statement and gave no indication of having read it. Writing the witness statement took a lot of time and effort and I'm not sure, now, that it was worth it; since it's the evidence you give in court that's considered, not what you say in the document.
2) The prosecutor referenced the Skeleton Argument three times during the day. Two of those occasions were during the trial, to raise points it makes and counter them. He noted that the points were novel and interesting points, and the Judge agreed, and asked me to provide him with a copy to take from the court afterwards.
The third occasion was after the trial, and it was to compliment me on the quality of the argument. So, XR's example Skeleton Argument is a useful, high quality resource.
3) However, it is not compulsory for self-representing defendants to submit either document. You can attend court and present your evidence and arguments as described above without first having laid them out in writing, and you will be heard.
4) The Exhibit provides the court with the expert resources that have informed your argument - science reports, books or articles about social change, videos on YouTube, documentaries, radio programmes, items in and on the news, etc. But you don't provide the entire report or book, or whatever, just the excerpts that you are using. I sent all of my documents in electronically, including the Exhibit, so the Exhibit I sent was effectively just a list of links, with a few attachments, numbered in the order of their appearance in my Witness Statement. The Judge hadn't seen it and the prosecutor didn't mention it. However, the Judge did ask for it during the proceedings, when I got up to give my evidence. I had compiled a paper Exhibit to take with me on the day, in case the Judge asked for it. It consisted of copies only of those pages I had referenced or quoted from in my Witness Statement, or which I intended to refer to in court, with the relevant sections highlighted. So for example, What Lies Beneath is 40 pages long but I didn't take a copy of the whole thing; just of the pages I intended to reference, collated in the order I intended to use them in my evidence. I knew I might be giving my set of papers to the Judge, so I also had a set of papers for my own use; these weren't a duplicate of the Exhibit, just sheets on which I'd written out the quotes I wanted to make, with a note of which number they were listed at in the Exhibit, so that if I gave the quote, or the information, and the Judge asked me which of the papers I'd given him I was referencing, I could give him the number so he could leaf through and find it. My Judge didn't ask this, in the event; but it made me confident, knowing I had it covered if he did, and I'm going to do the same thing next time.