Last updated: 24/06/20
Notes on Defendant’s meetings held on 16 and 18 June 2020
The purpose was to provide a forum for defendants charged with Obstructing the Highway to discuss self-representing at their trials. Both sessions were led by an experienced protest solicitor: we are grateful to them for (once again) generously giving their time and expertise.
These notes attempt to summarise material covered at both meetings. Most attendees already had an Access to Justice meeting with a protest-experienced solicitor. Many had already attended a first hearing and pleaded not guilty.
The courts are in total chaos as a result of Covid. Neither lawyers nor defendants know when, where or whether hearings will take place. Venues and dates are changed at very short notice. It is critical to contact courts a few days before your hearing (first hearing or trial). This number is the contact for listings at all the London magistrates’ courts: 0300 303 0645.
Another difference compared with the post-April trials is that the hearings are smaller and involve fewer defendants. The camaraderie and mutual support that was such a feature of the earlier hearings is reduced because of the need to have fewer defendants at first hearings and smaller trials with just one or two people.
Self-repping in court can be scary. But the most powerful testimony is always from the defendant. Lawyers can never match it. It’s an opportunity to tell your story, to persuade the court to acquit you.
The great advantage of self-repping is that you can say things in court that lawyers could not say: the court knows you are not an expert in the law and makes allowances. Your job is to persuade the court that you had a lawful excuse to block the road, that you acted reasonably and proportionately, and the police did not..
1. You were exercising your HRA Article 10 and 11 rights (free speech and free assembly) and the police should not have interfered with those rights by arresting and charging you. A road is a shared common public space which can be used for the right to protest. But other road users also have rights so your actions had to be reasonable and proportionate. How long were you there? Were you standing or sitting? On the pavement? Were you locked or glued on? Was the road already obstructed when you arrived? Did the police cause obstruction by a cordon before you arrived? Were you on the edge of the protest? Did you arrive and stay on your own and didn’t interact with others?
2a. You were arrested while there was a London-wide Section 14 in place (week 2 of the October rebellion). There was nowhere you could go to exercise your 10/11 rights, the police behaved unreasonably. They didn’t tell you where you could go because there was nowhere to go. The S14 was later ruled unlawful by the High Court.
2b. You were arrested in week 1 when the earlier S14 allowed you to go to Trafalgar Square and nowhere else in London. Did the police tell you that you could go there? If not, why not? If the officer had mentioned it, you would have gone there. That S14 was later agreed to have been unlawful.
3. Justification aka Necessity. This is a political defence. You were trying to save lives and avoid serious harm. You honestly believe that the threat is imminent. That belief is reasonable. Therefore your actions were reasonable and proportionate.
4. Others with you, doing exactly the same, were not charged. The police and CPS are being totally unfair and unreasonable. You will need to provide some evidence of these, for example a witness. The more similar the situation the better, eg if you were locked on with another rebel, and you got charged but the other rebel didn’t. This is not technically a defence but as a self-rep you don’t know this so, if it applies to you, it may be a good one to run. In legal terms you are saying there has been an abuse of process and asking for your case to be thrown out. If your request works the judge will order a mini-hearing to decide on this, or they may say it has to go to the High Court and carry on with your trial.
You can run any or all of these. 3. on its own has not yet resulted in an acquittal.
Timetable and documents
If you were represented your lawyer would send two documents to the court 4 weeks before the trial date.
1. The skeleton argument refers to case law and precedent and defines the legal thought process that leads to a not guilty verdict. It will almost certainly refer to the recent appeal case of Zeigler, which you may like to look up even though the decision went the wrong way. Self-rep defendants can write a skeleton but may prefer not to, unless you are confident about the law.
2. The defence statement is primarily a way to ask the police / CPS for further evidence – perhaps a second officer’s Body Worn Video, or information about when a cordon was imposed. But the document has to include details of your defence and you may not want to do this. Many self-rep defendants produce neither skeleton nor defence statement – there is no obligation to do so. All you need to tell the court about your defence was written on your PET form at first hearing, and there is no requirement to add to that prior to the trial.
Many defendants send the court before the trial a small folder sometimes called an influence bundle. These are documents or extracts that have influenced you, and are drawn from material in the public domain. They support your understanding of the urgency of the climate crisis. Glowing character references are also good. If you are claiming abuse of process – that others adjacent to you were treated differently – witness statements could provide evidence of that. If that witness is willing to appear in court for you, their name should have been entered on the PET form. You will probably want to write your own witness statement as you are the most important (or only) witness at your trial. This is what you’ll say from the witness box in your own defence.
You will confirm your id, the charge is read out and you confirm your not guilty plea.
The prosecutor makes a short opening statement, a description of their version of events.
Then prosecution evidence is called: the arresting officer will be asked questions and then cross-examined by you (unless you’ve agreed not to challenge her/his statement). They play the body-worn video footage.
You may be in a joint trial with different arresting officers: the process is repeated as necessary. In a joint trial, if one of the defendants has a lawyer, they will cross examine first and you may just adopt those questions, or add questions of your own. Any agreed (non-controversial) evidence is read out – there may not be any.
Then it’s the defence.
The judge or his legal advisor invites you into the witness box and you read the affirmation or oath. If you have a lawyer they will ask you questions to elicit your evidence. If you self-rep the judge may do that or you can just say what you want to say. If self-repping you will normally be allowed to take notes into the box.
The prosecutor then cross-examines you.
If you feel that something is unclear you can ask to clarify it (this is re-examination).
Any witnesses you have will then enter the witness box. You ask them questions, they are cross-examined and if necessary re-examined.
In a joint trial the whole defence process is repeated for each defendant. The judge can ask questions of anyone at any time.
Then it’s the speeches.
The prosecution goes first, describing why you should be convicted.
Then you can make a closing speech, or you may feel you’ve said enough.
If you are found not guilty, you will ask for your travel and legal costs (including XR Access to Justice costs) to be reimbursed.
If you are found guilty the judge will immediately sentence you. You can get a fine for Obstruction but we expect nearly everyone to get a 9-month conditional discharge. In addition the prosecution will ask for a contribution to costs. You will have completed a means form which the judge will take into account. You may have to pay costs of £500 – £775, although that is often reduced for people with limited means. You can ask for time to pay and for a reduction in the costs if you feel this is justified, e.g. if your trial only lasts half a day, the prosecution costs should be reduced.
If anyone reading this has been charged but not yet had the 1 to 1 review of your case with a protest-experienced solicitor that XR funds under the Access to Justice scheme, please get in touch with us at email@example.com as soon as possible.