Legal Briefing: Learn About Arrest
October 08, 2019 by Zoe Blackler
Extinction Rebellion’s Legal Team has produced this guide to being arrested, from how to prepare for arrest to what the consequences might be if you are. As well as the handy graphic, you’ll also find links to tons of useful resources.
As a mutually supporting network we are all responsible for ourselves, and while we support each other as best we can, your actions are your own.
It’s important to prepare yourself for all eventualities before attending an action (it isn’t possible to predict whether you will be arrested or not). Remember, this document is an overview intended to bring things to your attention, and is to be seen as a gateway to further reading. Links are listed at the bottom of each section.
The legal strategy documents aim to provide you with an overview of how we can turn the criminal justice process (from arrest to prosecution) 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, it’s usually a good idea to take independent legal advice.
Below are links to a series of documents we are developing that can help you to support our strategic objectives through the legal process if that’s what you decide you want to do – both when self-representing and when working with an experienced sympathetic solicitor.
LS1: Legal Strategy Overview
LS2: 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.
LS3: PREPARED POLICE INTERVIEW STATEMENT – EXAMPLES. This document includes two examples of a prepared police statement, a short version and a longer version, which you may use, combine or adapt to prepare a statement you are comfortable with personally.
LS4: 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.
LS5: EXAMPLE WITNESS STATEMENT /CLIMATE CHANGE ANNEXE: It is not really necessary to call an expert witness about the climate emergency. 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.
LS6: 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.
LS7: 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. LS8: YOUNG PEOPLE, SCHOOL STRIKES 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
Personal preparation for an action day
We hope that taking action will be a very empowering experience. If you are part of an XR group then there will be group preparation. This document is aimed at each XR Rebel. Part of being empowered is making informed decisions and so below we talk about some stuff that may be new to you, or if you’re experienced it may be good to get a refresher.
If there is only one link you click through on make it this one, Green and Black Cross’ ‘Key Advice when Going on a Protest’
Arrest – Read more about what happens when you are arrested
Caution – You might be offered a caution anytime after arrest, generally it is recommended not to accept a caution (nor Community Resolution – similar to a caution but less serious). Read more about it below.
Charge – This is when the decision is made by the police and/or CPS to prosecute you for an offence (not necessarily the one you were arrested for). You will be given a court date to appear in court and it’s up to you to make sure your solicitor knows that date if you want them to attend the hearing.
Conviction – If you either plead guilty or are found guilty at court then you will have a conviction for the offence with which you were charged.
Venue – Depending on what you are charged with, your case could be tried in the Magistrates Court or the Crown Court. You may not be given a choice about this. If your case is to be tried in the Magistrates Court (most “summary only” offences), the case will be heard by a lay bench (generally retired volunteers) or a District Judge sitting alone.
You will only be entitled to have a trial before a jury if you are charged with a more serious offence.
Read Before You Go
As part of XR’s aim to turn the criminal justice process (from arrest to prosecution) into an opportunity to advance strategic objectives – in particular by raising public and political awareness of the climate emergency – please read the links below.
If you read the Climate Emergency document (LS2) and Dr James E Hansen’s letter ‘To the General Public of the United Kingdom’ before taking action, it may help you later in court to reference these to explain your motivations. The documents are works in progress but you can find the most up to date versions at the links below.
LS1: Legal Strategy
LS2: Climate Emergency – What you need to know
Dr James E Hansen’s letter
Print a statement to read out, in case of police interview
There are risks to answering police questions in interview directly. A useful alternative is to present the police with a prepared statement. You can use the examples in LS3, part of the XR legal strategy documents, as a template for this which you can shorten, revise and adapt to your personal circumstances
in advance of arrest. Sharing it with a solicitor in advance can help ensure you have access to it when you need it. It’s best not to reply to any other questions (even if you are tempted) during the interview but read your statement and you can say ‘no comment’ to anything else.
You may want to read a long statement at the interview stage – if the police stop you, it might be possible to raise this in court. Or you might want to read a short statement that will save time and also not aggravate the police whilst you are in custody.
Know the name of the solicitors’ firm you will ask the police station to call
If you get arrested and are taken into custody, you are entitled to free legal advice at the police station. Give the name of the company you want to use and the police station will contact the Defence Solicitor Call Centre, who will call them. Know beforehand what solicitor you want to represent you and give the name of the company to the police, you don’t have to know the exact number. Do not use the duty solicitor. Even if you are in a remote area, an experienced solicitor can instruct a local firm to act as their ‘agent’ and this is preferable to going direct. If you are eligible for legal aid, it can be difficult to change solicitors once it has been applied for.
If there are lots of you arrested, there may be a delay before you get the chance to speak to a solicitor.
XR note: If London based, many XR activists are already using Bindmans, HJA and ITN. If out of London Kellys is Brighton based but works across all of England and Wales and are used to instructing a local agent. If you are looking for a local solicitor give Kellys a call before your action to ask them to cover your area.
Cautions and Community Resolution Orders
In general the advice is not to accept either a Caution or a Community Resolution, especially if your intention is to have your say in court. However always talk to an experienced protest law solicitor about your choices. Do not follow advice from a duty solicitor to accept a caution.
A caution is an admission of guilt and will stay on your record for 5 years. It can affect visas, travel, and job applications. Often the police offer cautions in ‘Public Order’ cases when the evidence they have is weak. It’s an easy result for them: an admission of guilt without having to present evidence against you.
However, there are specific instances when you might want to think about accepting a caution, such as you committed a fairly serious offence and the caution allows you to walk away without having to go to court, and that may be in your interest. Or perhaps there are personal circumstances that mean you want to get the process over and done with and don’t mind having a caution.
Motivations to accept a caution are that it is a quick and cheap route to end the legal process and removes additional uncertainty. You will have been arrested and can explain to the police at the station why you did the actions that you did, but your reasons won’t go any further than this. You do have to admit what you have done though (and be careful what you say about other people).
Community Resolution Orders Summary
It’s like an apology for what you have done. You have to make a clear admission of guilt.
Not classed as a conviction (so no criminal record), but can be taken into consideration if further offences committed and may be recorded and accessible for police information. These tend to be recorded locally at the police station where you were taken. May still show up on an enhanced DBS check. Primarily for first time offenders who admit guilt, and the victim’s views are taken into account.
GBC on cautions
Read about the common charges that you may face and make yourself aware of the sentences. How much is the possible fine? What’s a typical sentence? How long if custodial?
Arrest is only the first step in a process and most arrests are not taken any further – in the past approx 10% of people who were arrested were charged. They include: Aggravated Trespass. Obstruction of the Highway. Criminal Damage inc going equipped to commit criminal damage. Obstruction of a Police Officer (people can be arrested for this fairly frequently, but it’s not often that the CPS decides to prosecute for this offence). Resisting arrest. Threatening words and behaviour (or disorderly behaviour). Violent disorder and Affray. Breach of the Peace (not a criminal offence).
Public Nuisance has begun to be used by the police against protesters relatively recently. It can be tried in either the Magistrates or the Crown Court (it is known as an “either way” offence).
What we do know is that there is a risk of higher sentences and expensive and lengthy court cases that last weeks.
If you want to lower the risk of public nuisance being used against you, then you might want to think about the following options: leave an action if police are present; don’t take a role where you look like you are organising; try to be seen to minimise the impact on the public. You can always watch from a safe distance until the coast is clear and then rejoin. Although the risk can be minimised, arrest for Public Nuisance on protest actions remains a current possibility and so it’s about making informed choices. It’s worth noting that necessity defences were ruled inadmissable in the most recent Public Nuisance protest case, and so perhaps this charge is the least favourite for attempting to force the courts to listen. Further notes on Public Nuisance.
It’s also worth noting that if you have already been arrested/convicted (even if for another offence, such as aggravated trespass or criminal damage) this can count against you if you are arrested again. If you were convicted of offence 1 and then of offence 2, your sentence can also be greater.
XR note: XR do not contribute towards court fines, court costs or legal representation. There is a small hardship fund to help towards travel costs to court, apply by emailing email@example.com.
Sentencing Councils full list of offences (many not protest related)
Having a Record
Is it okay if you get a record that shows up in these places? In DBS checks (normally employment related),
When applying to stay in this country
When applying to travel in some countries abroad.
The record won’t necessarily cause a problem, but reading more about records is highly recommended.
If you are charged you will be required to attend court for 3 – 10 days typically, not all consecutively and so you should be prepared to take that time off work.
Some jobs, including those in the medical, legal and teaching professions, or
if you work in care premises, require an enhanced criminal record check (DBS check previously known as CRB). Any work that involves contact with children also requires the enhanced DBS check, including being the cleaner or bus driver for a school, for example. Please check the link to see if yours is one of the jobs that requires an enhanced check.
If it isn’t on the list above, then after a certain amount of time (known as a ‘rehabilitation period’) you do not need to tell most potential employers about most crimes you’ve committed in the past. Before your conviction is spent, you only have to tell the employer about your past crime if they ask you – most employers will ask you at the point of making a job application. This doesn’t necessarily count against you, as they are able to see the nature of your conviction, and you can have the chance to explain your motivations.
From the Unlock website: ‘If an employer wants to know about criminal records, they will normally ask you to disclose in a certain way; this might be at interview or after they’ve made a conditional offer. Some employers ask on their application forms. Where possible, we suggest that you disclose your record face-to-face; this tends to be most effective.’ More information on their website.
The rehabilitation period depends on the sentence. For a community order it is 6 months. For a fine it is year. After that, you generally don’t need to tell anyone about it if you don’t want to.
DBS checks and being arrested on protests
The disclosure and barring service (DBS) is primarily used by employers to check whether potential employees have criminal convictions. Some jobs can request that you have a DBS check, mainly those working with children and vulnerable adults.
It is often asked whether arrests, charges and convictions related to protest activities will show up on a DBS check and whether this will affect people’s employment prospects.
In short: Expect convictions and cautions to show up on your DBS check. Arrests or charges may show up on Enhanced DBS checks, at the police’s discretion. Your potential employer may ask you to explain what shows up, but having convictions etc doesn’t automatically mean you can’t get the job and won’t necessarily count against you.
* DBS checks are only allowed for some roles, largely those working with children, in healthcare or personal care, or in some professions. Some jobs are eligible for Standard DBS, and some are eligible for Enhanced DBS, including most jobs working directly with children. You can check whether a job is eligible for a DBS check at this gov.uk site.
*What will show up on a Standard/Enhanced DBS? Spent and unspent convictions, cautions, reprimands and warnings that are held on the Police National Computer.
* Additional for an Enhanced DBS: anything that the Chief Officer of a police force thinks is relevant. This can include arrests. We find it unlikely that anything related to protest activity would show up here, but it could include arrests that don’t result in conviction. If you have to go through an enhanced DBS check and information related to protest activity is included, the Network for Police Monitoring would be interested to know as this could be a method of intimidating people out of protest.
* There is something called “filtering” where some convictions don’t show up after 11 years have passed (5 1⁄2 years for convictions imposed when you were aged under 18), but only if you have been convicted of a single offence and got a non-custodial sentence, and the offence is not included on the list of offences that will never be filtered.
Will an arrest that doesn’t lead to a charge show up on a DBS check?
It may show up on an Enhanced DBS check, at the discretion of the Chief Officer of the relevant police force.
If I am arrested, tried and acquitted, will this show up on a DBS check? It may show up on an Enhanced DBS check, at the discretion of the Chief Officer of the relevant police force.
Applications to stay in the UK/migrants
There is a new requirement for an arrestee who is suspected of not being a UK national to state their nationality and provide documentation. This practically removes the ability to be anonymous but it isn’t automatic – it’s an offence not to “if required to do so” at the time of arrest.
Being arrested or convicted (unless of a serious/violent offence) shouldn’t have a negative impact on your ability to stay in the UK either under a visa or as an EU national. However if you want to be cautious due to the uncertain climate it might be best to take a volunteer role with XR rather than take part in actions.
An activists’ personal research
When will my conviction be spent?
What to know if you’ve got an unspent conviction.
Even the process of getting arrested can be very stressful and if you are charged, court cases can add further strain. Take care of your mental and emotional health.
Mental Health Issues in Custody
Some of the questions you will be asked when you are booked in at the
station will concern your physical and mental health (including whether you have a history of self-harm). The stated purpose of these questions is to ascertain whether you have any disabilities and/or pre-existing health conditions which may put you at risk while you are in custody. It is important to realise that if you tell the officer booking you in that you do have mental health problems and/or a history of self-harm OR answer no comment to those questions, the police are very likely to regularly check up on you when you are placed in a cell. This can be unpleasant and seriously disrupt any attempts at sleep. On the other hand you will need to declare mental health issues if
you want to have access to an appropriate adult (see below). If you think you are likely to be arrested on a demonstration, it is worth considering how you will deal with this. Our recommendation is to do whatever makes you feel safest.
Your details and biometric information will be recorded
Activist Trauma Support archived resource
You can be required to give your DNA and fingerprints for any offence, and they can be held indefinitely. The police can’t use force to take your photo but they can take your photograph without your consent (eg if you are not looking). People have made requests for the police to destroy these records, once cases have been dropped, but often without success.
Breach of the Peace (not a criminal offence) and Obstruction of the Highway (a ‘non-recordable’ offence) – they should not take fingerprints/DNA if arresting for these offences and you can and should refuse to comply.
If you are charged with an offence and found guilty there can be lots of different financial risks to plan for: travel to court, court costs, fines, cost of legal representation (if you don’t qualify for legal aid), compensation and your possible loss of earnings. If you are found not guilty then courts will compensate your travel and so do keep receipts.
Some people can qualify for legal aid to cover some or all of their defence costs. Defendants will automatically get free legal aid if they’re under 18 or receive: Income Support (IS); Income-based Jobseeker’s Allowance (JSA); Universal Credit (UC); State Pension Guarantee Credit and income-based Employment and Support Allowance (ESA). They must also pass the IOJ (Crown Court trials are deemed to automatically satisfy this test).
If none of the above apply then the means test process determines if a defendant qualifies for legal aid. It takes into account: income; family circumstances, eg number of children; essential living costs, eg mortgage or rent. Eligibility also depends on the type of case and where it’s heard.
You can find more info about legal aid and a link to the financial eligibility calculator here:https://www.gov.uk/guidance/criminal-legal-aid-means-testing
If you don’t qualify for legal aid it is likely you will need to self represent or make a contribution towards the cost of legal representation – depending on the agreement you come to with a lawyer.
Either way legal aid only covers defence costs and so also weigh up how much is the possible fine, and if you are liable for compensation (for instance damage to property etc)?
Criminal offences and sentencing guide
If you are found guilty, don’t forget you will need to take into account court costs and the prosecution usually apply for a contribution to their costs. If your solicitor is not local, make sure they are experienced in working with clients via the phone/skype to save the cost of travel expenses to solicitor meetings. Also if you take part in an action that is far from where you live, you may need to pay travel expenses to several court hearings.
If the court sentences you to a fine, this is means related. The court can also order that you pay compensation and a Victim Surcharge.
Some people may not want to pay these fines and costs. It is important that you take legal advice as wilful refusal to pay can mean (in extreme circumstances) that you are sent toprison.
XR note: XR don’t pay for costs of any kind, however they do encourage you and affinity groups to make crowdfunder pages to cover them. The Court sets fines to be a punishment and if public crowdfunder pages explicitly state that this is the intended aim, then it could cause the Court to set higher fines in general or impose a different sentence.
Please exercise caution when describing the crowdfunder ‘XR Local Group Costs’ would be fine, but not ‘Help pay XR Court fine’, for example.
Being under 18, having learning difficulties or mental health issues (even if you do not have a formal diagnosis)
You have the right to an “appropriate adult”, this is someone who at some points during their detention, can be with detainees who are under the age of 18 or who have learning difficulties or mental health issues.
A parent or guardian or appropriate adult must be called and be present for any policeinterview. The police can refuse for a nominated person to be an appropriate adult, and they may not agree to someone who has a criminal record or who was involved in the action. The default expectation of the police is often that it will be a parent or adult sibling. However, it doesn’t have to be and you can have one of these or another person of your choosing in mind before going out on an action. If you don’t provide your own appropriate adult the police may find a social worker, but this is not normally recommended. The police might also use an appropriate adult scheme to source one for you.
Please also read notes if appropriate on Mental Health above.
XR note: You might want to think about getting an appropriate adult ready before you go on an action. They don’t need to be with you at the action and better that they don’t know any details but perhaps they could know to expect the call from the police station. We recommend this as there is always the risk of arrest at an action, and so it is about being prepared for every eventuality, even if you haven’t done anything wrong. Police advice, however, is that where an adult is aware of your actions in advance, or involved in the protest, they are unlikely to be accepted as an appropriate adult.
Having already been arrested/charged/convicted?
If you have already been through the process and have a criminal record, you may get a heavier sentence the second or third time. If you were cautioned last time, you could be charged this time.
Summary of consequences of multiple arrests
1. Less likely to be released from police station
2. Less likely to be bailed by the courts
3. Higher sentences for repeat offenders
4. Higher sentences for offences committed while on bail
If you have been arrested multiple times some arrests may be charged, some released under investigation, some bailed, some let go with no further action. This might have consequences if you are found guilty, or plead guilty, to any charged offences then when sentencing for the new offence the court can take into account recent other criminal records. Recent probably means within last 5 or so years but cautions, guilty pleas and guilty verdicts will count.
If you received a conditional discharge for the first offence, you could be re-sentenced for that offence if you breach it by committing a second offence.
(nb this section is adapted from guidance from Green & Black Cross, a grass-roots project providing advice and support to protestors)
You should be told why you are being arrested and the name or number of the arresting officer. You should ask what station you are being taken to, although at large protests, the police officers do not always know.
You will probably be handcuffed. You will be searched – usually just a ‘pat down’ by an officer of the same sex as you. The police are only allowed to strip search you if there is good reason to believe that you are concealing an item such as a weapon or evidence or drugs.
You will be taken to the police station. This may be individually, or you may be taken along with other arrestees. At mass arrests in the past, the police have used buses for multiple arrestees, and there have been very long waits before arrival at the police station.
You will get ‘booked in’ at the police station. Your personal belongings will be taken from you. These are listed on the custody record and usually you will be asked to sign to say that the list is correct. You do not have to sign, but if you do, you should sign immediately below the last line, so that the police can’t add something incriminating to the list. You should also refuse to sign for something which isn’t yours, or which could be incriminating. They will ask you all kinds of questions about who you are and what you do. You do not have to give any details when arrested or at the police station.
If you do decide to give your details, you only need to give your name, address, and date of birth. You are only legally obliged to give your details if and when you appear in court.
They will take your photograph. You don’t have to comply, but they are allowed to use “reasonable force” to view your face.
They will take your fingerprints and DNA. Again, you don’t have to comply, but they are allowed to use “reasonable force”. Two important exceptions are being arrested for Breach of the Peace (not a criminal offence) and Obstruction of the Highway (a ‘non-recordable’ offence) – they should not take fingerprints/DNA if arresting for these offences.
You will then be put in a cell.
You have the right to free legal advice. You also have the right to have an “appropriate adult” if you are under 18 or have learning difficulties or mental health issues, even when undiagnosed. Police advice, however, is that where an adult is aware of your actions in advance, or involved in the protest, they are unlikely to be accepted as an appropriate adult. The alternative is for the police to arrange for someone to attend from anindependent appropriate adult service.
You have the right to have a solicitor present during an interview. We recommend that you use a solicitor with experience of supporting activists. If you have a solicitor coming, refuse to be interviewed before they arrive. If they can’t be contacted within a couple of hours then you may have to just give a no comment interview.
Do not use the duty solicitor. They are unlikely to have experience in protest law, and maygive bad advice.
You also have the right to:
- A copy of the PACE codes leaflet. This tells you your rights in custody – ask for it
- A translator if English isn’t your first language.
- Food that meets your dietary requirements – e.g. vegetarian/vegan/religious requirements
- A doctor if feeling unwell.
- A warm cell, including blankets and cups of tea/coffee.
You should prepare yourself for boredom, isolation, bad food, frustration, mild sensory deprivation, distressing noises from other prisoners, a bright light on 24/7 and being kept under constant surveillance. Remember, you can only be held for up to 24 hours (except for some very serious charges – unlikely in protest related cases). If you’ve prepared for the worst you may be pleasantly surprised!
If you are expecting to be arrested, bring along a book. Chances are you will be allowed to take it to your cell. You might also want to ask the custody sergeant for a pencil and paper to take to the cell.
You may be released in the early hours of the morning – so make sure you have enough money with you to get safely home; or that an appropriate adult is available to pick you up.
The Green And Black Cross guide: What Happens When I Get Arrested?