Notes on Obstruction of the Highway Defendants Meeting

Last updated: 01/06/2020

Notes on Defendant’s meetings held on 20, 26 and 28 May 2020     

The purpose was to provide a forum for defendants charged with Obstructing the Highway to discuss their upcoming first hearings. Each session was led by an experienced protest solicitor: we are grateful to them for (once again) generously giving their time and expertise.

Most attendees were charged with Obstruction, and the meetings concentrated on this offence. Each began with the solicitor outlining:

1. the offence and describing what the prosecution has to prove. Available defences, trial issues, prospects of success

2. procedures at first hearing and at trial

3. penalties and costs

After the initial presentation, attendees were invited to ask questions via the Zoom chat, these were responded to as the meetings went on.

It was impossible for the solicitor to answer detailed queries about individual cases, and if you have been charged we urge you to take up the CrowdJustice-funded offer of free legal advice with a protest experienced solicitor (referred to as the Access to Justice scheme) by emailing legalfinancialsupport@riseup.net

Included within this funded legal advice is a legal aid eligibility check, review of evidence including the body-worn footage, preparation of the PET form (required if pleading not guilty) and advice on the likely outcome of your case, including potential financial and legal implications. We feel it is incredibly important that you get this legal advice before making any decision about pleading guilty.

Background

Following the April 2019 Rebellion more than 1000 rebels were charged with the offence of breaching Section 14 of the Public Order Act 1986. That section allows restrictions to be placed on demonstrations and protests at specified locations and with specified conditions. At the beginning of the October Rebellion, on October 7th, the Police imposed a S14 order covering the whole of London except Trafalgar Square, and then on 14th they imposed an order covering all London without exception. Hundreds of rebels were charged with breaching these orders. XR initiated a  Judicial Review challenge to the second of these orders and the High Court found that it was unlawful, and the CPS (Crown Prosecution Service) then decided not to oppose our challenge to the first order. S14 charges against some 400 October rebels were discontinued.

Many rebels have been surprised to be re-charged with Obstruction of the Public Highway, especially as charge letters often arrived right at the end of the 6-month period allowed. Many people suspect a political motivation behind the decision to issue so many last-minute charges; however the CPS can charge a different offence from the one used during arrest.

The offence

Obstruction is less serious than S14. The prosecution has to establish:

  1. that the occupied road is a public road (almost always the case in central London, although the roads surrounding Excel, for example, are private) and
  2. that there was no lawful excuse. This may prove to be the basis of many contested cases. The rights of freedom of expression and of assembly are enshrined in the Human Rights Act (Articles 10 and 11). The public highway is a legitimate place to exercise these rights, but they are not absolute rights.

 

DPP vs Zeigler established that there is no hierarchy of rights on a highway: the rights of motorists do not inevitably trump those of protesters. But Articles 10 and 11 are qualified rights: the state can impose restrictions. The prosecution has to show that the interference in your right to protest – by moving you on, by prosecuting you - is justified.  The court has to decide on proportionality. Is it proportional or reasonable to restrict the rights of some people (eg protesters) in order to protect those of others (eg road users)? As one senior protest lawyer, who has helped XR from the beginning, said: ‘Just because you were obstructing the highway doesn’t mean that you are guilty of Obstructing the Highway.’

Each case is very fact-specific – that’s why it’s so important to make use of the Access to Justice scheme to have a solicitor look at your individual circumstances. The court has to decide whether your legitimate use of the road for protest was reasonable and proportionate. It depends on the extent of the obstruction, its impact on other users and perhaps on wider society. Were you just on the pavement? How long were you there before being moved on? Had you just arrived when you were arrested? Was the road already blocked when you arrived? If so, can the court hold you responsible for others’ actions? To what extent were you restricting free movement along the road? How long for? Had the police themselves blocked or cordoned the road? Were you glued or locked on?

Hearings – Before Covid-19

Court procedures are dealt with elsewhere on Informed Dissent and may be familiar to those who were involved in S14 hearings from April. First hearings are when the court takes a plea (guilty or not guilty), and in normal (non-Covid) circumstances the hearings for XR defendants would have taken place on Fridays at City of London Magistrates’ Court with perhaps 50 rebels heard in two or perhaps three courtrooms. People from Arrestee and Legal Support would always be there to note decisions, future trial dates, and generally offer support and a few biscuits.

In normal times if you plead guilty the prosecution briefly describes the incident and ask the judge to impose a contribution to the prosecution costs as well as any sentence. You can speak to the judge or magistrates and describe why you should be given as light a sentence as possible and why your court costs should be as low as possible. You are given the opportunity to read a statement of mitigation, giving reasons for your actions and perhaps highlighting the climate emergency. You will have filled in a brief means form which the judge will read. Experience from the hearings arising from April indicate that you will almost certainly be given a conditional discharge, probably for 6 months, and told to pay costs of £85 plus a surcharge of £21. You can ask for time to pay. If you intend to plead guilty there is very little point in having a solicitor represent you at the hearing.

If you plead not guilty, the hearing will set a trial date. Before the hearing you will be asked to fill in a PET (Preparation for Effective Trial) form which is quite long, and asks you to identify the issues of fact or law that you are disputing. If you have a solicitor, they will do that for you. If you are self-representing you will have to do this yourself: Legal Support will be producing documentation on self-representing at trial to include the PET form. Remember that a solicitor can help you complete your PET form in advance through the Access to Justice scheme detailed above. The trial date set will be an agreement between you, the prosecution and the court. It’s ok to rule out important dates such as holidays: these are known as dates to avoid.

If you go to trial and are found not guilty the court will reimburse your costs (or most of them). If you are found guilty, almost everyone from the April trials received a conditional discharge of 9 months: a few people were fined sums of about £300. Prosecution costs are higher than the guilty plea costs, the central figure is currently £775 plus the surcharge of £21 although that, again, can be reduced by mitigation and you can ask for time to pay.

Hearings – Covid-19

The last pre-lockdown hearing at City of London Magistrates’ Court took place on 20 March: by that time it had been obvious for several weeks that rebels could not travel to London to attend court. Since then the court building has been closed. Rebels receiving charge papers through the post from CPS, who would normally be expected to attend first hearings in person, have been able to plead guilty by post or email following receipt of the charge papers. Please note, though, that it’s important to say that you are pleading guilty and will accept a conditional discharge – just to make sure they don’t give you a fine.

However CPS have not made it easy to plead not guilty by post or email: they do not (to date) include a copy of the PET form with the papers, nor a DVD of the body-worn video (BWV). If you want to plead not guilty by post or email (probably best to use both routes) and you are, or intend to be, represented by a solicitor, it’s fairly straightforward to indicate your position in a reply to the CPS. Your solicitor will complete your PET form for you and arrange for you to see the BWV. If you want to plead not guilty and self-represent, you have to respond to the CPS asking them to send you a DVD of the BWV and a copy of the PET form. Even if you are keen to self-represent we recommend you take advantage of the Access to Justice scheme so a solicitor can help you obtain the BWV and PET form.

The crowded first hearings that took place over many Fridays at City of London court, when 50 or more defendants appeared during the day, are clearly not going to happen for quite a while, if ever – which in many ways is a shame, because those busy waiting rooms were the scene of many meetings and reunions. No-one knows how the courts will operate in future – including at the moment the court management – but it seems likely that many defendants, perhaps most, will not attend their first hearings. Either their solicitors will enter pleas for them, or if self-representing they will have entered their plea by post/email. The court will then impose a conditional discharge and costs for those who pleaded guilty, or set a trial date for the not guilty people, and notify everyone afterwards.

We have had no indication from the courts about how they will run trials, whether they will take place in court buildings at all, whether defendants and other participants will be able to appear by video conferencing link, what arrangements will be made for members of the public and supporters. But it looks as though they are planning for single defendant trials, and so the group trials with up to 6 or 8 defendants will not happen. That is a disadvantage for people self-repping, as they can’t rely on at least one of their group having a solicitor. And of course the whole process will take much longer, which is why they are keen to persuade as many people as possible to plead guilty – see below.

Considerations

About six weeks ago the DPP issued revised guidance to the CPS about which cases should be continued with: the Guardian reported that there is a current backlog of 40,000 cases in the system. All the solicitors we work with are pressing for XR obstruction cases to be dropped, concentrating initially on those cases where there are obvious physical or medical reasons to discontinue. At the moment the CPS has not responded positively, but it is very hard to see the public interest in continuing with so many (perhaps 600 in all) very minor charges.

Your plea decision is personal and depends on your circumstances but, other things being equal, you might consider pleading not guilty at first, to increase the pressure on CPS to drop all these charges. You can change a not guilty plea to a guilty plea very easily and at any stage in the process up to the day of the trial and, although there can be increased costs for a very late change of plea, we found with the April trials that a change of plea a couple of weeks before the trial date would still result in the standard 6-month conditional discharge plus the total £106 costs mentioned above.

We have outlined above a very fact-specific approach to the Obstruction charge, and assumed that your objective in going to trial is to get an acquittal. But that may not be the case, and many rebels go to court to continue their campaign there, and to turn their trial into a political one centred on their clear understanding of the urgency of the climate crisis. Many people did this really effectively during the hearings following April and they had a real impact, not least on some of the judges who heard their cases. The Necessity defence can still be made, and that provides an opportunity to describe the climate crisis in court; however using the necessity defence exclusively will almost certainly result in a guilty verdict. Similarly guilty plea statements of mitigation, giving reasons for your actions, can still be made. But in the post-Covid world it seems likely that the setting will change and the people able to hear such statements will be fewer.

Please get in touch with xr-legal@riseup.net with any queries.

XR Legal Support Team