Last reviewed: 22.03.2023
Being a defendant in crown court can be an intimidating experience. Knowing something about the process can be helpful in making it more manageable and allow you to take best advantage of your time in court.
Crown courts try the more serious offences and the verdict is decided by a jury. The judge directs proceedings, guides the jury on the law and decides on sentencing. Protest cases typically last three to five days. The description below relates to English courts.
Crown court trials start at magistrates courts
The very first court appearance for all offences after you have been charged or have received a postal requisition will be in the magistrates court. That is the time when your case will be sent to the crown court for trial, either because you or the CPS have asked for jury trial. You will be given the date and place for your next hearing. If you are appearing in court as a result of a postal requisition the magistrates will place you on bail to attend at the crown court.
Crown Court: pre-trial
At the first hearing in the Crown court, you will enter a plea and a timetable will be set . The actual trial date should be set there and then ( often at least 18 months away ) or you will be given the window in which your trial will be heard ( i.e. June 2024 , but not a specific date yet)
Dates will be set by which the prosecution have to serve their evidence, and you are expected to do your own defence statement(s), and the prosecution then have to respond to the defence statement by for example serving further evidence or saying why they won’t serve further evidence if requested. There will also be dates set for skeleton arguments ( this is where the CPS set out what they say about any defences you might wish to rely on) and for your replies . These dates are called stage dates, stage 1, stage 2, stage 3 and stage 4.
Stage 1: Looking at evidence
You should receive copies of evidence from CPS (Crown Prosecution Service) by the Stage 1 date. This could be by email with a link to a folder, or on a data stick or CD. Technical issues of the media not working are fairly common. Just let the CPS know and ask them to sort it. This should be sent to you in good time (28 days) for you to make your Stage 2 defence statement. If you want to submit a defence statement but don’t feel you’ve had enough time to prepare because there have been delays with the prosecution evidence, email the court and copy in the CPS with a request to postpone.
Stage 2: Defence Statement
There are pros and cons to submitting a defence statement. It is not an offence to not provide one, but you may come under pressure to provide this information including being asked to come to a hearing to explain your position . You will also be warned that failure to serve a defence statement in time or at all can be the cause of adverse comment before a jury. You will not be permitted to raise a defence at trial if you could reasonably have raised it in a defence statement.
A defence statement is used to set out the legal defences you want to use at trial. These could be that you did what you did in order to prevent a greater harm (the necessity defence) or that it would be a disproportionate interference with your rights under article 10 and 11 of the European Court of Human Rights to convict you (the Ziegler defence) or, in a criminal damage case, that you believed the owners of the building would have consented to the damage that was caused if they knew what you did about the climate crisis . It also gives you a chance to highlight any matters of fact that you want to bring up (like you weren’t there or that you were on public not private land). There are examples of defence statements on Informed Dissent .https://informeddissent.info/statementselection1 If you submit a defence statement and later want to add something, you can do this by contacting the CPS or by submitting a supplemental defence statement and providing it to the court and the CPS, don’t wait and just bring things up at trial. If it is a significant point the CPS may object to you bringing up new defences or matters of fact later at such a late stage and it is possible the judge may agree. As someone who is self representing, you can however expect a fair amount of leeway on this.
If you want to call your own witnesses, then this is normally only permitted if you give details at Stage 2. You can apply to have expert witnesses on climate etc, although often the judge does not allow this.You might want an expert witness to challenge the value of the alleged damage
If there is evidence such as video footage from a member of the public that you want to use, you would be expected to submit it at this stage.
You may decide not to comply with the request to provide a defence statement. This may be because you feel you have better things to do with your time or as an act of civil resistance. Strategically, you may decide you don’t want to show your hand to the CPS before trial.
If one of your co-defendants is legally represented, a defence statement will be submitted on their behalf and this may be of benefit to you as it may trigger further prosecution disclosure of evidence that is helpful to all defendants. Each defendant is expected to submit their own defence statement though.
Stage 3: duty of disclosure by prosecution
The prosecutor must disclose any material which might reasonably be considered capable of undermining the prosecution case or of assisting your case. This is mostly based on what you have put down in a defence statement. So you may get another batch of evidence by this date. This could be witness statements that contradict statements made by other witnesses in the first batch of prosecution evidence.
Stage 4: final defence response
Following any materials provided in stage 3, the defence can respond and provide other material or make applications to the court such as for the case to be adjourned.
Official guidance about Disclosure Stages.
Certificate of readiness
A week or so before the trial you will be asked to confirm you are ready for trial ie you have all the evidence you need and all your witnesses are going to be in attendance. If you have a health issue or other serious problem that has arisen since the trial date was set you will need to state you are not ready for trial and the court may postpone the trial.
Character references
You can provide character references for use at the trial itself, ( and also later , to be taken into account in the event you are convicted and face sentence) If you are of good character, and want to say that loud and clear to the jury, then producing statements from people of good standing in the community can be very helpful as it is allowed in law to show that you are more likely to be telling the truth and less likely to have committed the offence in question. However, if you are known to the police ( with convictions , or under investigation for other offences) and you try to suggest you are of good character this would allow the CPS to bring this up, although you can argue with the judge about this before your trial starts. You may decide that your string of protest convictions isn’t something you want to hide away as it makes the case that you are acting out of necessity.
Character references can be submitted beforehand or provided on the day of the trial. Have a copy printed out to be read in court by you or a court official. Some parts may be ruled inadmissible (e.g. recent criminal damage trials are having references to climate change crossed through).
Agreed facts
Agreed facts are a way of shortening the trial so that matters that are relevant but are not in dispute between the prosecution and defence are reduced into written form. They can then be read out to the jury at the trial and treated in the same way as live evidence that would otherwise have to be called at trial. You should receive these in the run up to the trial if they are relied on. If you haven’t received them by the week before, you could email the CPS to ask for them or wait until the first day of the trial . Look carefully through the list of facts. Cross out facts that you take issue with in any way, including wording. You may suggest alternative wordings of the facts that you would be happy to agree to. You can also suggest facts you want the prosecution to agree with. It is generally possible to do this process with the CPS/prosecution in the early part of the trial if it hasn’t been done before. Depending on the nature of any defences available to you, you might be able to propose agreed facts about the climate crisis
Practical matters at court
You must be at court every day of your trial, unless you have asked permission to be absent. If something happens which makes it impossible for you to get to court, you need to notify the court, otherwise a warrant can be issued for your arrest
Court usually sits each day from around 10.00 or 10 30 am until 1 pm, then lunch break usually for an hour, following which court resumes about 2 pm until around 4 15 pm.
If there is more than one defendant, you are usually seated in the order your names appear on the indictment (court document setting out the charges on which you are to be tried), but if you want to agree a different order (which will be the order in which you give evidence, ask questions and make your final speeches) you can ask the judge. Usually the represented defendants go first, but this order can also be changed.
During the trial the judge will let you know when it is your turn to speak, or ask a question, but if there is something you want to say while someone else is speaking, stand up - or raise your hand - and the judge should notice you have something you want to raise.
The barristers and judge have access to the DCS (Digital Case System), which stores all evidence etc on line, but you won’t, so the CPS must provide you with a hard copy of everything that they are going to rely on in court - witness statements, exhibits, video footage.
If you have any documents you want the jury to see, you should show them to the CPS first, and have a copy for the judge. If it is agreed you can produce the document, you will need to provide copies for the jury, judge and any witness, so make sure you have 15 copies. There are 12 members of the jury.
On the day of the trial
Before the trial starts, the court will deal with any legal arguments that need to be resolved. Some of this may happen at an earlier hearing, but any remaining matters will be dealt with on the day. These might include applications to rely on a defendant’s or a prosecution witness’s previous convictions (known as a bad character application) or applications from the defence to exclude certain prosecution evidence as inadmissible (such as, for example, where a defendant was not cautioned before making a statement the prosecution wish to rely upon). If you’re self-repping, have a chat with the CPS solicitor beforehand and get some evidence that you’re not happy with thrown out.
The judge will also make decisions on what defences you are allowed to use when putting your case to the jury. There is a lot of law around these points, and it changes frequently, but at the moment, it seems almost impossible to use the defence of necessity, and for some charges it is also very difficult to rely on the proportionality of your rights to protest. These are all matters that the judge will decide on at some stage during the trial but you will be told when, and given the chance to put your own arguments to the judge as to why you should be allowed to rely on any particular defence .
Be aware that if a defendant mentions something in front of the jury that the judge has ruled they cannot say, the judge will warn them about this. If a defendant ignores this they might be threatened with contempt of court, and if they continue, be given a short custodial sentence. Also take into account that if the judge thinks the jury has heard things they shouldn’t have, he can dismiss them and start the trial over. There’s a risk of increased costs in this case, but may be worth considering as part of a strategy of non-compliance.
The Jury
Once the judge has made any rulings about how the trial will proceed, the jury is selected and “ sworn in”. The jury is selected at random from a pool of available jurors.
Both the prosecution and defence can put forward questions they would like potential jurors to be asked in order to rule out those who may not be able to make an impartial decision. You can suggest your own questions for the jury and object to ones the prosecution is wanting and the judge will decide which will be used. Questions may include things like “Are you or anyone in your immediate family a serving or former police officer?”, “Do you work for the fossil fuel industry?”. It isn’t like the American system where lots of questions can be asked. Jurors can however be excluded if for instance they live in the immediate locality where the offence is said to have taken place or know any of the witnesses or defendants.
The Prosecution
Once legal arguments (if any) are dealt with, the trial proper will start with the opening speech by the prosecution. This opening speech informs the court of what the allegation against the defendant is, a summary of the evidence, the areas of dispute and any relevant matters of law.
Once the prosecution has opened the case, it has to prove it with evidence.
So first of all they call the prosecution witnesses. This may be the police officer that arrested you and/or a tanker driver who you delayed. The prosecution will ask them questions to pull out the facts. When they’re done, the defence (that’s you) cross examines them. If there are multiple defendants you can’t all have a pop going over the same ground… but you can all cover off and tease out different things. If things have become confused then the prosecution will re-examine their witness, (but only to clarify new things that have just come out).
Planning which questions to ask in advance could be worth doing based on the evidence bundle you have been sent, but allow yourself to listen closely to the evidence and ask other questions too. Consider only asking questions that you know the answer to.
Then the prosecution read witness statements that are not contentious and have been agreed can be read out.They will also read out a transcript of your interview at the police station and if you didn't answer police questions the jury will hear that you remained silent.
Generally, they’ll then summarise their case and read out agreed facts. They may, at this point, if you are using character witnesses, point out any bad character i.e. previous convictions, especially of similar offences.
The prosecution will end with “So that’s the case for the crown”.
This part of the trial might take a day or a day and a half. It depends how many witnesses there are.
The defence
Then it’s the defence’s turn.
Each defendant gets up to present their defence after taking an oath. You may present your defence evidence if you have any. This is all about facts, and in particular disputed facts. Your evidence could be witnesses or video footage or your own testimony. In some cases, there will be few facts in dispute. However, you may also use this space to establish who you are, your background, how you came to take action, what information your decision to take action was based on. Address what you say to the jury to help them engage with you.
You may also be asked questions by the judge as a self representing defendant. For example, where were you standing? How long were you there?
Expect each defendant to have 15 to 30 minutes for this section. The judge may intervene and direct you not to say things they decide are not relevant or refer to legal defences that have been ruled out, for example necessity or proportionality. You can respond with an argument as to why your line of speech is relevant but the judge will expect to have the final word. The judge has to allow you to give evidence in your own defence, even if all legal defences have been ruled out.
The prosecution will then cross examine you. It is worth considering how you might answer the more commonly asked protest related questions .
You may call your own witnesses as part of your defence. This generally needs to be arranged in advance by notice to the CPS and the court. You won’t be allowed to just produce witnesses as the prosecution need the opportunity to conduct background checks etc normally at Stage 2. If a late witness comes to light, so long as you can explain why there has been a delay and so long as the prosecution have time to conduct checks on them, the court may allow you to depart from the usual procedure.
If there are other defendants sharing the same trial, they can also cross examine you . This can be a great opportunity to prompt your fellow defendants to include something they may have forgotten. If the judge does not offer you the opportunity, make it known at the time that you would like to do this. Having some questions ready to ask can help.
Closing speeches
There are then the closing speeches. The prosecution are generally entitled to make a closing speech if the defendant has a legal representative, or (whether represented or not) if they have introduced evidence other than their own, i.e. they have called witnesses or relied on other evidence during the trial process. If either of these don’t apply, you can ask the judge to disallow a closing prosecution address.
The trial presentations end with a closing speech from the defendant - address this to the jury, not the judge. Here are some examples of closing speeches from the Shell 7 trial https://informeddissent.info/shellclosingspeechdl
Direct the jury to consider the key aspects in the case you’ve presented .This is where you can normally expect to give your impassioned statement about government crimes, and comment on why the state insists on prosecuting peaceful protestors acting out of love and backed by the science! However, in recent trials where some or even all defences have been ruled out, the judge has placed severe restrictions on what can be said at this point. The judge might ask to see your speech before you deliver it.
The judge has the last word. They sum up the case to the jury and will address the jury as to the law, stating that their word on the law is final. They may summarise the evidence and suggest but not direct the jury as to what should be weighed up in their decision. They cannot direct the jury to find you guilty . The jury then leave the courtroom and go to a retiring room to decide whether you are guilty or not guilty. Sometimes the jury send in questions that have come up during their discussions. Before the judge answers them, they have to call everyone back into court so you can all hear what the questions are, and what reply is proposed to be given.
The Verdict
When the jury have made a decision (or given up trying to make a decision) they return to the court and announce their verdict. Each defendant will have a separate verdict and each count on the indictment will have a separate verdict( if there is more than one count (charge) to be considered).
You may be found not guilty!
You may be found guilty in which case sentencing might be done there and then, or delayed to consider other trials, or await a probation pre-sentencing report. If a pre-sentence report is ordered, the sentencing is usually delayed for a few weeks.
If you are given a custodial sentence, you are generally taken straight from the dock to the court cells and then taken to a prison.
If you get a fine, remember to ask for a payment plan.
Finally - hot tip - If you have the chance, try to attend at least one crown court trial of other protestors - it gives you invaluable experience of what it will feel like to be on trial, and the sort of questions you can expect from the prosecution ( they seem to have a pretty standard list !) and you can then practise on each other, if there is more than one of you facing the same charge.