At the time of writing , reportedly over 1000 participants in The XR peaceful and non violent actions taking place in London this week have been arrested. This is in addition to the 1,300 arrested in April . It is understood that there has been a policy in favour of prosecuting a large number of those detainees.
This is despite the fact that less than 10% of the crimes reported in England and Wales are pursued by the Crown Prosecution Service ; and many offences- including those of a far more serious nature- are dealt with by way of court settlements such as police cautions or even penalty notices. The CPS Code is that not all offences even when the evidential test is met should result in a prosecution if it is not in the public interest.
Applying the public interest factors set out in the Code for Crown Prosecutors, prosecutors should bear in mind that a prosecution is less likely to be required where:
- The public protest was essentially peaceful;
- The suspect had no more than a minor role;
- The suspect has no previous relevant history of offending at public protests or in general;
- The act committed was minor;
- The act committed was instinctive and in the heat of the moment.The main offences protestors are being prosecuted for includeA ‘public procession’ constitutes any number of people (the law does not specify a minimum) moving along a route. A ‘public assembly’ is two or more people gathered together in a public place.
Many activists are being prosecuted for failing to move when asked to do by the police. The prosecution will need to prove that the person arrested was aware of the conditions and then chose to ignore them. Please note that the police can use reasonable force if anyone is failing to comply with conditions.Sections 12 and 14 of the Public Order Act 1986 which allow conditions to be imposed on ‘public processions’ and ‘public assemblies.Unfortunately, this test is simply not being applied to those involved in XR activities.
The offence is non imprisonable and can be dealt with by a financial penalty up to £1,000 but most first time offenders are being dealt by way of a short conditional discharge.
Persons arrested for this offence are taken to an available police station to be processed. They are frequently not interviewed unless arrested for other offences. After their address has been verified they are being Released Under Investigation. This is to allow an opportunity for evidence to be gathered before a charging decision is taken, although in case of XR arrests it also reflects the large number of persons arrested as it affords the police and prosecution further time to process matters. In due course, a postal requisition may be sent out to address given which will require those arrested to attend court on a given date and time or may afford the opportunity to plead guilty by post.
Section 137 of the Highways Act 1980 says that “if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway s/he is guilty of an offence”. The penalty is a fine and is non imprisonable. A Highway can include the side of a road, the footpath/pavement and in the past has even been ruled to include parts of the churchyard at St Pauls Cathedral- but would not include private property. The criminal offence of “aggravated trespass” covers protestors on private land/property.
The courts will need to examine whether the activity causing the obstruction was lawful and if it was reasonable. Article 10 (Freedom of expression) and Article 11 (freedom of expression) of the ECHR are of relevance and should be taken into account.
Criminal Damage
Section 1(1) Criminal Damage Act 1971 states that a person who without lawful excuse destroys or damages any property belonging to another, intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged, shall be guilty of an offence. Section 2 covers threats to destroy or damage property and Section 3 covers possessing anything with intent to destroy or damage property.
The offence is imprisonable of up to 6 months in Magistrates Court and up to 10 years for aggravated cases in the Crown Court but in reality a prison sentence is only going to be considered if the damage is of a high value involving thousands of pounds of damage or it is one of the aggravated offences of Criminal Damage.
It is a defence, under Section 5, to show that you had a ‘lawful excuse’ to undertake property damage or destruction and that it is immaterial whether a defendant’s belief in this is justified, as long as it is an honest belief. You must show that the threat you are taking action against is imminent and also the action itself was proportionate and necessary.
There are numerous other offences including Conspiracy to commit public nuisance, obstruct police in the execution of their duty, and a number of public order offences.
A number if activists have been reluctant to disclose their details to the police upon arrest. This is likely to result on person being charged without delay of RUI and then kept in custody overnight for the next available court. At the court there is a duty under section 162 of the Policing and Crime Act 2017 to provide your name, date of birth and nationality if required to do so at any stage of proceedings by the court. If you do not provide your details without a reasonable excuse then the person is guilty of an offence. This offence does carry out a power of imprisonment.
Everyone arrested and taken to a police station is entitled to free legal advice. This may involve telephone advice if police indicate they have no intention to interview, but if you are to be interviewed then your legal representative will be attend the police station with an opportunity for a confidential consultation prior to interview. Our advice before there is an opportunity to discuss matters with us is to remain prior to legal advice if you asked about the offence itself.
If require assistance then contact BSB Solicitors on 02078373456 to speak to our experienced legal team and we will be pleased to help you. We have recently been added to the list of approved Solicitors for XR