A note for XR rebels risking arrest on an XR action
In the two years since the April 2019 rebellion members of the Arrestee and Legal Support circle (A&LS) have held more than a dozen meetings with XR rebels charged with summary offences. The purposes of the meetings included outlining the legal procedures involved in a trial, the options available to defendants, and answering queries. Some meetings included solicitors from protest law firms on the panel; more recently we have relied on in-house volunteer solicitors and other experienced members of A&LS. A few early meetings were held in person and shared via Zoom with remote attendees, but most have been held entirely on Zoom. This note is an attempt to draw out some of the themes that have emerged.
Court hearings as protest
If you go on an XR protest at which you risk being arrested it’s a good idea to think about your attitude to a later court hearing. Will that hearing be an integral part of the protest, or an inconvenient add-on? Will you see it as an opportunity to make the case for the climate catastrophe in a court of law, or will you feel that the theatre for your protest is the street and the court hearing is irrelevant? Both views are completely legitimate, but your attitude to that question may colour later decisions if you are charged.
You may be involved with a protest and not get arrested, or you may be arrested and not charged – summary justice is a lottery, and if you are arrested the police have 6 months to decide whether or not to charge you. But if you are charged there are two decisions that you will have to make quite quickly, and they depend to some extent on your attitude to the question outlined above. The first decision is about representation at the hearing(s) and the second is your plea decision.
Solicitor vs. self-representation
If you are arrested you will be taken to a police station. You, or someone for you, will phone the XR back office to let them know, and you’ll contact one of the legal firms on the bust card to arrange for free legal representation at the police station. You may or may not be questioned by police. Probably after some hours you’ll either be charged and given a date for your plea hearing, or released under investigation (RUI) while the police decide whether or not to charge you. When you receive your charge papers, especially if this is your first or second time, we urge you to get in touch with XR as soon as possible and book an Access to Justice (A2J) appointment with an experienced protest solicitor. If you are more experienced and have already had an A2J meeting you may prefer to apply for a cash grant to help with your legal and associated costs, payable when your case has finished: this scheme is Funds for Justice (F4J). For further info on either A2J or F4J please see here or send an email to firstname.lastname@example.org. As well as looking at the evidence against you the solicitor at your A2J meeting will give you a good idea of whether you are likely to be eligible for legal aid. If you are eligible – and many rebels who are either students or on benefits may be – then you can be represented by a lawyer at your court hearing(s). If you are not eligible, or can’t pay privately, you may not have that option.
At first sight it seems obvious – of course it would be better to have an experienced protest lawyer representing you in court. But over the last two years, as more and more people have brilliantly and sometimes successfully self-represented in court, it has become clear that the issue is more nuanced than that. As a self-repper you are not expected to be familiar with criminal justice procedures and processes, and the court will give you leeway that is not available to a professional lawyer. You can say things in evidence that a lawyer would not be allowed to say. And you can speak directly and from the heart to the judge or magistrates, or in the Crown Court to the jury – you can look them in the eye and talk about the climate crisis and the immediacy of the emergency in your terms and using your experience, and explain how you were totally justified in your action.
However good the lawyer – and the ones that XR rebels regularly use are genuinely committed to the rights of free speech and protest – the represented defendant’s role is essentially a passive one. If you self-represent you are saying to the court that you reject the language and the flummery of the law, that you refuse to be spoken for by a member of the legal cartel, that you reject the exclusive style and language of legal practice and demand to be heard on your terms, using ordinary language and with normal civilities. You are demanding equality before the law. And sometimes it works. Even if you don’t get an acquittal you will have contributed to a cumulative impact on the courts and the judiciary. Having heard many XR cases, one district judge said:
It is with a really heavy heart that I have to convict you. This is going to be my last Extinction Rebellion trial for a little while. I think they only allow us so many of these before our sympathies overwhelm us. When I started I fully expected to see the usual crowd of anarchists and communists. I have to say I have been totally overwhelmed by all the defendants. It is such a pleasure to deal with people so different from all the people I deal with in my regular life. Thank you for your courtesy, thank you for your integrity, thank you for your honesty. You have to succeed.
Guilty or not guilty
As one of the senior protest lawyers we work with said: ‘Just because you obstructed the highway doesn’t mean you’re guilty of Obstruction of the Highway’. Everyone charged with an offence has the right to plead not guilty and have the prosecution prove its case. Even if the circumstances of your arrest were clear cut there are always defences available to you, and we look at two of those below. But some XR people do decide to plead guilty, and there are some good reasons for doing that. First, you may feel that you’ve done more than your bit already at the protest, and you don’t want a court case hanging over you for several months. You don’t see the court hearings as a part of your protest and you may be reluctant to commit the time and energy to running a court defence – especially if you are not on legal aid.
Secondly, going to trial and losing is almost always more expensive: we look at costs below but there is no doubt that court costs for people found guilty after a trial have increased a lot recently, in a seemingly deliberate policy by the courts and Crown Prosecution Service (CPS) to persuade us to plead guilty and avoid the expense of a trial. And thirdly, a guilty plea hearing involves a mini-hearing in front of the judge or magistrates (although it can also be done in writing or by email), and you are able make a statement to the court explaining why you took action. Many people have taken advantage of this and made profoundly moving statements which have certainly contributed to the pressure on the courts to look again at their approach to climate protest. Guilty plea statements can also form the basis of a press release to local and regional media and can can result in wide publicity.
As mentioned above, we urge you to have an Access to Justice (A2J) meeting before deciding on plea, because your lawyer will look at the evidence against you (including body-worn footage) and may find something wrong, or challengeable, in the way you were arrested. If the lawyer’s advice is that you do have a good chance of an acquittal they will contact XR Legal Support for further discussions. If the advice is that you probably don’t have a technical defence you then have to decide between pleading guilty (and making a statement to the court at the hearing) or pleading not guilty. If you plead not guilty but don’t challenge the lawfulness of your arrest you can use, or adapt, one or both of the generic defences outlined below and use them as a hook to hang your arguments on. Or you can simply defend yourself in your own terms and in your own words. Either way you change the trial from a legalistic one to a political one by insisting that the court hears and understands the urgency of the crisis and the imperative of your actions.
Human Rights Act
The first generic defence uses Articles 10 and 11 of the HRA, which enshrine freedom of expression and freedom of assembly in the laws of the UK. Together they constitute the right to protest but they are not absolute rights: if the prosecution claims that your protest infringed other rights of other people the court has to decide whether your actions were reasonable and proportionate. So if you were arrested for obstruction or Section 14 at a static protest your defence could be that you were exercising your rights under Articles 10 and 11 in a reasonable and proportionate way. You might argue that you weren’t there very long, or you didn’t obstruct many people, or the urgency of the climate crisis justified your protest. Use as many arguments like these as you can, and suggest that the police were not being reasonable or proportionate in stopping you.
This ancient defence says that a crime can be justified if it prevents a greater harm. Over time case law has narrowed the definition of greater harm to loss of life or serious injury, and the connection (or nexus) between the action and the harm prevented has to be very immediate. It is next to impossible to win on Necessity: the one or two that have slipped through have been appealed by the CPS. Judges in the Crown Court regularly refuse to hear the defence. District Judges and magistrates in the lower courts have so far heard it but ignored it. The Necessity argument is made most effectively when self-representing defendants use it as a tool to say that the climate catastrophe is causing mass deaths now and their action was a desperate attempt to stop that happening. But it is probably best not to use the word ‘Necessity’, as courts now tend to ignore it in XR cases as they know that it has not worked in earlier cases.
Cautions started to be more widely used in early 2021, presumably as an attempt by the courts and CPS to clear the huge backlog of cases in the Magistrates’ Courts. They can be offered by the police or by the CPS, but usually only to people who do not have previous convictions. If you accept a caution you are not able to make a statement to the court – there is no court hearing – but you will not have a conviction on your record. Arrests and cautions can stay on your record for up to 6 years (2 years if U18) and are visible to an enhanced DBS during that time. Convictions are on there permanently and are visible to an ordinary DBS. If your A2J or legal aid lawyer has said there isn’t much chance of a technical acquittal, and you don’t want to make a political trial, a caution may be an option. If you weren’t offered one by the police after your arrest you can write to the CPS as soon as you receive your charge papers saying that you would accept a caution if one was offered. If the prosecutor agrees your hearing will be adjourned while arrangements are made with the police, but you will have to sign a document admitting guilt. But sometimes it doesn’t work so you are back with the traditional choice between guilty or not guilty.
Plea hearings - guilty plea
Your first hearing after you’ve been charged will be the plea hearing (or first hearing). The Court will notify you of the date and place: try to arrange an A2J meeting before the hearing. If you decide to plead guilty at the plea hearing your case will almost certainly be finished the same day. It is not usually necessary to have a lawyer at a guilty plea hearing. Before your hearing starts you will be asked to fill in a means form MC100 (search for ‘MC100-eng.pdf’ – it’s a good idea to print and complete it ahead of time and take it with you) which will be handed to the judge or magistrates.
At the hearing you will confirm your plea and the prosecutor will outline the case against you. The judge or magistrates will ask if you want to address the court. This is your chance to make your statement giving your reasons, and, especially if you don’t have much money, remind the judge of your financial circumstances. They will then pass sentence: this will almost always be a conditional discharge for 6 or 9 months. The prosecutor will then ask for costs (see below). The judge can reduce the costs, and you can ask for time to pay. When these arrangements have been made you’ll be free to leave court.
Plea hearings – not guilty plea
The purpose of the plea hearing if you are pleading not guilty is to set a date for your trial, and so you should take with you a note of any dates in the next two or three months you can’t attend. Before the hearing starts you’ll be asked to fill in a Preparation for Effective Trial form (search for ‘magistrates court PET form.pdf’ – it’s a good idea to familiarise yourself with the defendant’s parts of this form, perhaps complete it ahead of time and take it with you) which will be handed to the judge or magistrates.
8.4 is where you briefly identify your disagreement with the prosecutions case. You might say ‘I was exercising my right to protest in a reasonable and proportionate way’ or ‘I blocked the gate to prevent the catastrophe of a new coal mine opening’ or ‘I was sitting in the road for 30 minutes which is a reasonable exercise of my right to protest’. 8.5 asks if you will produce a Defence Statement – we suggest that you do (see below). Section 11 asks about defence witnesses, but sadly witnesses who are experts in climate science are almost never called to give evidence because the prosecution never challenges us on the climate science and will not want to cross examine them. So specialist defence evidence is usually given on paper, and that is worth doing. But it probably won’t be worth asking an expert climate witness to book the day off for your trial, and the same often applies to character witnesses – they may not be called for cross-examination and their evidence will usually be on paper.
If you are pleading not guilty you won’t get to make a statement during the plea hearing. The judge, prosecutor and clerk will look at the PET form and estimate the trial length, and find a half day (or longer) that suits everyone, including you. They may also group rebels into joint trials, which tend to take longer than solo trials. Then you’ll be bailed (or sometimes adjourned) to the new date. Again, it’s not usually necessary to have a lawyer represent you at the plea hearing.
The trial - court procedure
A couple of practical points:
You address a District Judge or a Magistrate as sir or madam: it’s only a circuit judge in the Crown court that you call “Your Honour”
The court clerk or magistrates legal advisor should tell you when it’s your turn to speak, or your turn to ask questions of a witness. You can expect help from the clerk on all procedural queries. There is no set time limit for presenting your case, but the judge might ask you how long you expect to be, or tell you that you only have a limited amount of time. Be polite but firm if you need longer, and certainly do not be fobbed off with only 5 or 10 minutes.
You can take notes into the witness box with you when you give your evidence, and also use them for your cross examination of a witness and for your final speech. The only time you may not be able to refer to your notes is when the prosecution is cross examining you, although it’s worth asking the judge – after all police officers routinely consult their notes.
The prosecution starts by briefly outlining the case against you (and your co-defendants if you are in a joint trial). The prosecution witnesses (often including the arresting officer) then give evidence, and after each one you can cross examine them and ask any questions which you feel are relevant. Any prosecution witnesses who have not been asked to attend will have their statements read out, and cannot be challenged.
Then the defence case begins. A member of court staff will ask you to take the oath or non religious affirmation which you read from a card or repeat after the clerk. You will then be invited to give your evidence, and you can say anything that you think is relevant, and expand on your defence statement if you want to. When you have finished, the prosecution will cross examine you and ask you any questions they think are relevant. When there are two or more defendants being dealt with at the same time, the court will then invite your co-defendants to ask you anything about your evidence which they think is relevant.
We mention above that it can be difficult to get expert witnesses onto the witness stand because the prosecution may not challenge their evidence. But if you have defence witnesses and they have been asked to attend the trial, you call them now and ask them questions, and they will be subject to cross examination by the prosecution. If your evidence is on paper you can ask if the judge or magistrates have read it. You can include character evidence (again, this is not usually challenged and so will be written) or you can introduce it when being sentenced if you are found guilty.
The defence case ends there, and both sides can make brief legal submissions (prosecution first), and then you can summarise your case. If the bench is made up of two or three lay magistrates, they usually retire into their private room to consider the case and make their decision. If your case is heard by a single district judge they may not retire. Either way, if you are found guilty you can then put forward your mitigation and say anything further which you wish to. This is where people usually introduce their written character witness statements. If you have not circulated these beforehand to the court you should bring a spare copy to hand in. You can make a submission about the prosecution court costs, and you can refer to your financial circumstances, and suggest that the court might decide not to order the full amount against you.
If you are found guilty the sentence is usually a conditional discharge for a number of months and the court will explain what this means. As discussed below the prosecution will also ask for costs.
If the decision is to find you not guilty, you are entitled to apply to the court for reimbursement of any costs you have incurred, in particular travelling expenses, but you need to provide travel and any other receipts. If you had initial A2J advice from a lawyer, you should produce an invoice to the court and they should agree to pay that expense also. You can ask for time to gather your receipts and invoices if they are not immediately available.
Self-rep defendants don’t have to produce a Defence Statement (if you have a lawyer they will do it for you) but we suggest that you do. It makes you think carefully about what exactly you want to say to the court in your evidence. It also unlocks the disclosure of unused evidence, so that on receipt of a Defence Statement the prosecution must issue you with a list of evidence they decided not to use, which you can then ask to see. For example, they may not be using the body-worn footage. Why not? It might be interesting to look at it.
The Statement doesn’t need to be very long, perhaps one or two sides of A4, and you can expand on it when you give your evidence in person. If you include references in your Defence Statement it is often a good idea to put the text of the references into an attached document (called a Bundle, or just References) and provide a link in your Statement. The other document that is sometimes presented to the court is called a Skeleton Argument, and if you have a lawyer this will also be written for you. But we suggest that self-rep defendants don’t try and write one: a Skeleton is essentially a compilation of all the case law and precedent relevant to your case, and is legalistic and technical. It’s easy for a non-professional to miss things out and if you submit a Skeleton it will define the scope of your defence. It’s better to rely on your amateur status and not pretend to be a lawyer. The real lawyers will always be better at being a lawyer than you.
If you are found not guilty, or your case is dropped, you can claim legal costs (including A2J) and travel costs from the court. The great majority of XR defendants who plead, or are found, guilty have received conditional discharges: very few have been fined. But the courts usually impose prosecution costs as well as the conditional discharge and as mentioned above these have increased over the last two years, perhaps as a deterrent.
These figures are guidance from the Crown Prosecution Service website (https://www.cps.gov.uk/legal-guidance/costs-annex-1); in addition there is a further £22 victim surcharge for each defendant:
Early guilty plea £85
Later guilty plea £105 - £135
Guilty after trial £660 - £775
These are for single person hearings and additional defendants at the same trial are an additional 20%. If you are in a joint trial you should ask for the costs to be divided equally between you. Judges and magistrates have complete discretion to alter or even waive these costs. If you are found guilty and before you are sentenced you will be able to argue that they should be reduced or eliminated (this is known as mitigation).
You can find more information on court finances here
You can change from Not Guilty to Guilty at any time but it is next to impossible to change plea the other way. An informal sliding scale operates for change of plea so that the closer it is to the trial date the higher the court costs are likely to be. We have seen plea changes on the day of the trial attracting costs that are close to the full trial costs.