XR Legal Strategy

This page is relevant to XR Activists

This page aims to provide you with an overview of how we can turn the criminal justice process (from arrest to verdict) 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 and charged it's always a good idea to take advantage of XR’s Access to Justice scheme (see here) which provides for a free meeting with a protest-experienced lawyer.

If you have been arrested and charged with an offence, there are several different routes through the criminal justice system – different legal strategies – available. The one you choose depends on your personal and financial situation and on your objectives. It’s important to emphasise that, from XRs perspective, there is no right or preferred strategy, it’s a personal decision. You have already done a huge amount. Everyone’s case is different and parts of this overview may not apply to you. If you have been charged with a more serious offence that may involve a trial in the Crown Court you should contact XR Legal Support if you haven’t already seen a protest-experienced solicitor.

Your personal situation includes how much time and energy you have available to fight a court case, and in particular whether you are eligible for legal aid. If you get legal aid your paid-for lawyer will do most of the work on your case, although you will still have to pay any costs and/or fines imposed by the court if you are found guilty (see here). If you are not eligible and decide to represent yourself at a trial you will probably find yourself with a lot of work to do.

Broadly, there are three possible objectives, though some people combine the second and third. (1) You want to get the whole thing over with as quickly and cheaply as possible; (2) you want to challenge the prosecution evidence and get a not guilty verdict; (3) you want to use the court as a platform to make the case for the climate crisis as urgently and powerfully as you can.

XRs experience is that most people who are arrested at an action are charged, although there may be a delay – for most offences the police and the Crown Prosecution Service (CPS) have 6 months to make up their minds on whether they want to charge you or not. When they send the charge letter they also send most of the evidence against you, and you should see a solicitor – Legal Support can supply a list of firms we use regularly. The solicitor will work out whether you are eligible for legal aid, and if you are they can act for you throughout the process. If you are not eligible we urge you to take advantage of the Access to Justice scheme which provides a free meeting with a protest-experienced lawyer to assess the evidence against you – in most cases including looking at the body-worn video footage. Whether or not you are on legal aid your first court appearance will be for your plea hearing.

  1. Getting it over with

The usual way to get your case finished as quickly as possible is to plead guilty, either remotely or at the plea hearing. During 2019 and 2020 the great majority of rebels facing Summary (decided in the Magistrates Courts) charges who pleaded guilty were given a 6-month Conditional Discharge (very rarely a fine) and about £110 court costs. People had the chance to make a statement to the court and the case was finished in half a day or less. In 2021 the CPS started to offer cautions to some defendants. Accepting a caution also involves an admission of guilt but does not incur court costs or a conditional discharge. There is no criminal conviction although cautions are kept on record for six years, and you will not be able to make a statement to the court. Police can also offer cautions but we suggest that you do not accept a police caution, as you will not have had a chance to look at the evidence against you. A CPS caution, if available, will be offered after you have seen the evidence and reviewed it with your Access to Justice or Legal Aid solicitor.

  1. Challenging the prosecution evidence

The solicitor may look at the evidence against you and advise that you could challenge your arrest. For example, if you were arrested for Obstruction and you were standing on the pavement, or you weren’t given enough time to move, or the road wasn’t a public highway. But sometimes the solicitor may tell you that a defence that seems obvious, for example that the road was already blocked when you arrived, or you were only there for a few minutes, probably would not work. The widespread use by police of body-worn video cameras has made technical defences difficult for many rebels.

  1. Using the court as a platform

You can decide not to challenge your arrest and still plead not guilty – every defendant has the right to make the prosecution prove its case. Using Obstruction again as an example, you can say that you did block the road but you had a lawful reason to do so. Many XR defendants have used one or both of these defences:

  • You were exercising your right to protest under Articles 10 and 11 of the Human Rights Act. The court has to balance any disruption caused against the rights of other people in the locality.
  • The defence of Necessity, which says that an offence can be lawful if it saves others from imminent harm or death. The court has to decide whether the climate catastrophe is imminent enough.

These defences may not get a not guilty verdict but can be very effective vehicles for explaining to the court why you took action. Both are legitimate defences and the court must hear them.

Representing yourself at trial

If you have a lawyer, they will keep tabs on the schedule, produce all the documents and respond to CPS documents on time, and tell you when to appear at court. If you self-represent you have to decide how much you want to be involved with the legal structure of your trial – some people do everything that a lawyer would do, others do almost nothing except turn up on the day of the trial. Most people are in the middle.

By the time of your plea hearing you will have received copies of the CPS evidence against you (the initial disclosure) and reviewed it with an Access to Justice solicitor. If you plead not guilty you’ll be asked to fill in a form at the hearing outlining what your defence will be. This is the Preparation for Effective Trial form and is used by the court to estimate the likely length of your trial when setting a trial date. It can also be used to group defendants into a joint trial. Your Access to Justice solicitor can help with this, or if you are represented your solicitor will do it for you.

Most self-representing defendants send a Defence Statement to the court – again, if you have a lawyer this is done for you. This should be sent within 14 days of receiving the initial disclosure and is a straightforward description of the defence you will be putting forward at the trial, often a page or two long. At the trial you may just read this statement as your evidence, or you can expand on it. If the statement contains long references, extracts or quotes, they are often collected in a second document called a Defence Bundle.

One advantage of sending a Defence Statement is that you can then ask to see any unused evidence that the CPS has decided not to use. Some defendants don’t write a Defence Statement, preferring to come to their trial and explain their defence then. If you are represented your lawyer will write your Defence Statement and also a document called a Skeleton Argument. This contains the legal precedent and case law that is relevant to your defence and an example is given below. Self representing defendants can write one or, if they are in a joint trial, adopt the skeleton written for a co-defendant who has a lawyer. But judges and magistrates are familiar with most of the case law and the Skeleton Argument will not affect the outcome of your case if you self-represent.

Legal Strategy Documents

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.

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.

EXAMPLE WITNESS STATEMENT /CLIMATE CHANGE ANNEXE: It is not really necessary to call an expert witness about the climate emergency. In any case the prosecution does not challenge us on the climate crisis and so your expert witness would probably not be called as the CPS would not want to cross-examine her/him. 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. 

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.

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.

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.