Notes on self-reppers meetings that took place on 05.01.21, 07.01.21 and 16.02.21
The meetings were based on the following assumptions:
- Defendants are not eligible for legal aid
- Defendants have pleaded not guilty to a summary charge
- Defendants have had initial support and advice funded through the access to justice fund. Those who have not are advised to email email@example.com for further information
There are two broad reasons for pleading not guilty: (a) to challenge your arrest and be found not guilty, and (b) to use the court hearing as a platform. Many rebels adopt both approaches. (a) depends on the individual circumstances of your arrest and on the offence you are charged with, and your access to justice lawyer will have given their opinion of your prospects of a not guilty verdict. For (b) you can rely on a generic defence, probably either Necessity or the Human Rights Act.
Possible defences - generic
Necessity is the defence that the offence was committed in order to prevent a greater harm, such as loss of life or injury. It can be used against any charge within a magistrate’s court and has a very wide application. Within the magistrate’s court it must be heard, as it is a legitimate defence. So far there has only been one XR case where the necessity defence has been successful. It is extremely likely that you will be found guilty if you are basing your defence solely on necessity, this is because the judge will usually deem that the threat isn’t imminent enough to justify the action. We all know this not to be true, and it is regularly argued that loss of life is happening right now around the world due to the climate emergency, but unfortunately this defence continues to be unsuccessful in the large majority of cases. The judges don’t ever dispute the severity of the climate crisis, so will never call this into question. The necessity defence has been successful on one occasion for an XR defendant, this was for a criminal damage charge, you can read more about this here: 'We find you not guilty': XR protester cleared of criminal damage charge
Human Rights Act, Article 10 and 11 - your right to free assembly and free speech. You have a right to protest and the police are meant to balance this right with the rights of those disrupted by the protest. You can argue that the decision to arrest was disproportionate to the disruption caused. See Zeigler case for specific argument in relation to Obstruction of a highway - http://www.centralchambers.co.uk/dpp-v-ziegler-a-clear-framework-for-dealing-with-protest-cases/
Defences can vary considerably in success, and depend greatly on the judge. Just because a defence has worked for someone else doesn’t mean with certainty that it will work for you.
Some potential defences that defendants are considering include:
- There were structures causing an obstruction, therefore they were not the cause of the obstruction. This is certainly worth arguing but prosecution would likely argue joint enterprise
- Originally arrested under section 14, which meant the instruction they were given is vastly different to that if they were arrested under obstruction of a highway. If they weren’t given the option to move to the side of the road this is certainly worth arguing
- Weren’t given suitable warning prior to arrest. There is a false expectation within XR that police are required to give a five stage warning prior to arrest, this is not the case. However, if you are arrested quickly without any opportunity to move / leave the area, this could be a good defence
- Charged under S14 but they were causing no disruption, weren’t blocking any roads and members of public were able to pass by, therefore could argue the S14 was unjustified and unproportionate as there was no disruption
- There is a potential defence being explored around arrests that took place on Horse Guards Road, Horse Guards Parade, Birdcage walk and The Mall. If anyone was arrested in these locations and charged with obstruction of a highway they are encouraged to email firstname.lastname@example.org
The freedom of self-representing means you can say what you want, however you want to say it. It’s your evidence and your opportunity to say your piece. There is no need to go down lawyerly routes, unless you really want to. There is also no particular XR strategy that you should take up time in court however you can (e.g. with lengthy statements) We’ve had thousands of arrests and charges and the courts have handled it, so really this is all about your time to say and do what you like.
You may be cross examined on your background, your motive, and the situation around your arrest, however the prosecution won’t cross examine you on your points on the climate crisis.
Attending court and covid
Court service is deemed an essential service so will continue to take place during the latest lockdown. However you are fully within your right to email the CPS and court requesting either that your trial is adjourned or takes place over video link due to covid. Within this email give your reasoning for not attending (e.g. avoiding travel, public transport, are you or anyone you live with classed as vulnerable etc). We suggest that you email both email@example.com and firstname.lastname@example.org (assuming you are attending court in London) to ask for a remote hearing or a deferral.
Those who have had their plea hearing already will have completed a PET form, either yourself or with a solicitor. If you submitted a plea remotely it is possible you have not done this. A template PET form can be found here: http://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2010/crim-pr-part-3-magistrates-courts-preparation-for-trial-form-aug-2010.pdf
Defence statement and bundle
The second document is the defence statement. This is an expansion of what you write in the PET form. It doesn’t need case law, it is just a discursive statement of what you want to say in court. It is supposed to be submitted two weeks after the first disclosure from the CPS, but as a self repper the courts are much more flexible with these deadlines. Ideally you would email your defence statement a couple of weeks ahead of your trial, or at least a few days in advance. The defence statement will form the basis of what you say orally in the witness stand. Writing this in advance allows you to spend some time thinking about your defence. You can refer to a variety of sources such as statistics from scientific journals, quotes from Sir David Attenborough etc. If you have lots of sources you can create a supporting document, which just contains references that you have made in your defence statement – this combined with your defence statement is referred to as a bundle.
Once you have submitted your defence statement you then have the legal right to see any unused prosecution evidence. This could be beneficial to your defence, for example if the prosecution decided not to use body worn footage as evidence – why not? There may be something within there to help your case.
The skeleton argument is a legal document, our inclination is to suggest you don’t bother with it. It is very technical, written in a particular format and layout including a collection of case law, references etc that supports your case. If you have a lawyer they will write it, but there is no requirement and no need for self reppers to do so. We do have an example skeleton argument if you really want to play the legal game, which can be found here: https://informeddissent.info/S14defenceargument
If you are found guilty you are likely to receive a conditional discharge or a fine. If it is your first offence it is most likely you will receive a conditional discharge, however if you have had multiple offences it might be that you are fined. You will also be required to pay prosecution costs. The prosecution will submit a request for costs to the judge. These can vary, and sometimes the judge will split the cost between co-defendants.
You are then able to make a mitigation statement, where you can challenge a fine, or high costs requested by the prosecution. You might request a conditional discharge is given instead of a fine, due to the minor nature of the offence, previous good character, etc.
You can find more information about court costs here: https://informeddissent.info/court-finances
Not guilty / discontinued verdict
If you are found not guilty, you can make a defendant’s cost order to the judge, where you request your expenses are reimbursed. This includes travel expenses (both to trial and to hearings) and also the access to justice support that you have received through the legal fund. We recommend that you are prepared for this by making a note in advance of your travel expenses, saving receipts, and also keep a copy of the invoice you should have been sent in relation to the access to justice support you have received. Although you wouldn’t have paid for this directly, it is related to your case and can then be refunded to the legal fund, to help support future cases.