Following legal action from Extinction Rebellion, the Metropolitan Police has now accepted that Section 14 arrests were unlawful during both weeks of the October Rebellion.

If you were arrested for breach of a Section 14 during the October Rebellion please read this briefing carefully. It sets out the next steps available to you including guidance on how you might bring a claim for compensation against the Met.

What has happened?

The Metropolitan Police has admitted that its use of Section 14 was unlawful during both weeks of October’s International Rebellion. As a result, the Crown Prosecution Service (CPS) has begun to notify those charged with Section 14 offences that their prosecutions are being discontinued. It would now be very surprising if the Met were to bring any Section 14 charges against those arrested and released under investigation.

This means that arrests for breaching a Section 14 order during the October Rebellion were unlawful. Those who were arrested for breaching a Section 14 order may therefore have a civil claim against the Police for false imprisonment and could be entitled to compensation.

You may not know what course of action to take next; this guidance lays out some of the options now available to you.

To be clear, this does not affect:

1. Anyone arrested under Section 14 during the April Rebellion; or
2. Anyone arrested for other offences (eg. Criminal Damage, Aggravated Trespass etc) during the October Rebellion (unless you were charged and have also received discontinuance notices for those charges).

What are my options?

You have three options:

1. Do nothing. If you have already been charged, you can wait for the CPS to contact you to confirm the case against you has been discontinued. If you were released under investigation after your arrest and not charged, you can wait for the 6-month period for the Met to bring a charge against you to pass.
2. You can bring a civil claim against the Metropolitan Police for False Imprisonment given that you were unlawfully arrested, for which you may receive an apology and/or compensation.
3. You can bring a complaint against the Police via the Independent Office for Police Conduct, which may lead to a change in Police practice or guidance.

I want to make a civil claim against the Police – what should I do?

If you choose to take a claim it is possible to self represent but we would strongly suggest that you seek legal advice. The following firms have agreed to provide a free initial consultation, even if you’re thinking of self representing and representation on a no win no fee basis. If you are already represented by another firm not listed here for the charge you have received, it will be best to find a civil lawyer, ideally with experience of taking claims against the police. You could ask if this is something they can provide or use one of the following firms who already have XR clients. It’s fine to have criminal cases with one firm and civil with another. But would make sense to do both with the same firm if they have the right experience.

• Bindmans: Rachel Harger | 020 7014 2101 | r.harger@bindmans.com
• HJA: Susie Labinjoh | 020 7874 8466 | SLabinjoh@hja.net or Zac Whyte | 020 7874 8416 | Zwhyte@hja.net or Brid Doherty | 020 7874 8501| bdoherty@hja.net
• ITN: Lochlinn Parke | 020 3909 8100| lparker@itnsolicitors.com
• Birnberg Pierce: Tara Mulcair | 020 7911 0166| T.Mulcair@birnbergpeirce.co.uk or Kate Thomas | 020 7911 0166| K.Thomas@birnbergpeirce.co.uk

When should I bring a claim?

Depending on the details of a potential claim, there are different deadlines to be met. If you’re planning to make a claim, you won’t miss those deadlines if you contact a lawyer within the next few months.

How long will a claim take?

Claims brought against the Police should settle without the need even to issue proceedings and, in any event, before trial. This would significantly limit the amount of time and attention that would be required of you. After your solicitor sends a Letter of Claim to the Police on your behalf, they would have three months to reply. It’s expected that your claim would be dealt with within a year, but that depends on the Police’s conduct and the specifics of your claim.

What if I lose my claim?

The solicitors firms listed above are very confident these claims will settle without the need to issue proceedings and this will significantly minimise any cost risk. If a settlement cannot be reached with the Met, your lawyer would advise you of any cost risk of launching proceedings before you did so (ie. the danger that you might have to pay the Police’s legal costs were you to lose your claim).

What if I win my claim?

Your claim can ask for different kinds of remedies. Financial compensation is the most common, but you may prefer to request an apology or formal acknowledgment of wrongdoing.

If you seek financial compensation, your claim may give rise to an award of basic or aggravated damages.

Basic damages are designed to compensate for loss and injury suffered as a result of wrongdoing (a loss includes the loss of liberty). The size of the award depends on a range of factors which would include how long you were detained for following arrest, how many times you have been arrested before etc. Similar claims in the past have led to awards of damages from zero to several thousand pounds.

The amount of damages may be increased if there are aggravating circumstances, such as insulting or degrading treatment during arrest or detention, any injuries you sustained in arrest, or evidence of prejudicial treatment. These awards are difficult to predict as they are entirely at the Court’s discretion.

If I were to receive compensation what should I do with it?

Defendants within Extinction Rebellion have different principles in mind when choosing whether to bring claims against the Police for unlawful arrests. Some people feel that having won the judicial review, they’d like to take the moral high ground and not seek compensation, while others see the benefit of holding the police to account and using any compensation to further Extinction Rebellion’s work. If you do want to make a claim and you are awarded compensation, you might consider donating some or all of it to help other defences and legal challenges through XR’s Legal Crowdfunder (www.crowdjustice.com/case/extinction-rebellion-central). Alternatively, you might want to donate to other local groups or causes like Green and Black Cross (www.greenandblackcross.org/get-involved/donate) and Netpol (www.netpol.org/about/donations/) who have regularly contributed to Extinction Rebellion’s legal work or other community groups (eg. those working to combat knife crime).

Why are we not launching a group claim?

Each claim will depend heavily on its particular facts so there is no group claim to be brought. The law firms listed above have a long history of collaboration so while each person would bring their claim individually, the firms will take a joined-up approach to settlement negotiations with the Police, effectively coordinating a group action.

If I don’t want to bring a claim, what else can I do?

If you don’t want to bring a claim, you can instead make a complaint to the Independent Office for Police Conduct online here (www.met.police.uk/fo/feedback/tc/thanks-and-complaints/make-complaint/). You do not need a solicitor to make a complaint.

Note that the police complaints system can be slow, bureaucratic and deeply frustrating, often resulting in minimal outcomes. However, there is still value in making a complaint as it can be a powerful tool to highlight oppressive policing, hold the police to account, and it may lead to a change in Police practice or guidance.

When making a complaint, it is important to be aware that there is a small chance that the complaint could draw unwanted legal attention from the police. If this is a concern to you, it may be worth waiting until any legal proceedings against you are concluded, until you have received no further action or after 6 months from the date of the incident which is the time limit in which police can charge you.

What if I’ve been arrested/charged under Section 14 and another offence (eg. Obstruction of the Highway etc)?

The unlawful Section 14 arrests do not affect the legality of other charges or arrests. If you were arrested for another offence alongside a breach of Section 14 at the same time then the unlawfulness of the Section 14 arrest will not affect the other offence (unless you hear otherwise). Many people have also had Obstruction of the Highway charges discontinued, but this is at the discretion of the CPS and currently there isn’t a complete picture.

The solicitors are only taking on clients who have been arrested for a breach of Section 14 unless there is prima facie evidence that the arrest for the other offence was unlawful e.g. somebody can objectively prove they were on a pavement in the middle of Trafalgar Square when they were arrested for obstruction of the highway (e.g. video footage).

It is not automatically the case that those who have been arrested for a breach of Section 14 and another offence, such as Obstruction of the Highway, do not have a civil claim –  investigatory work would be required to establish that the arrest for the other offence was unlawful too. E.g. Your arrest will be unlawful unless your arresting police officer can prove that they had reasonable grounds for suspecting that you had committed an offence and that it was necessary to arrest you.

If the non-Section 14 reason for arrest was lawful then any false imprisonment claim arising from the breach of the section 14 order will only give rise to nominal damages (e.g. £1) and the solicitors are likely to advise against bringing a claim.

Further, even if you were only arrested for one offence initially, it is possible for the police to bring a new charge against you for the one arrest (eg. Obstruction of the Highway), in which case there would be no/minimal benefit to a false imprisonment claim. Because your detention at the time of your arrest would have been justified by the offence you were later charged with, a claim against the police for false imprisonment would again only give rise to nominal damages. However, in every instance it is best to speak to a solicitor with experience of taking claims against the police, as circumstances will vary from one person to another.

I’ve been charged for breach of Section 14 but haven’t heard from the CPS

If you have not yet heard from the CPS, you can still contact a solicitor about a civil claim. The fact you have been charged and may have to attend court hearings in relation to the purported breach of the Section 14 order may give rise to a separate claim or bolster an argument for an award of aggravated damages

Until the CPS confirms that they have discontinued or withdrawn your prosecution, you should still attend court as required by the summons. Your case is likely to be adjourned, but if it is not, you will be asked to fill out this form (www.justice.gov.uk/courts/procedure-rules/criminal/docs/2010/crim-pr-part-3-magistrates-courts-preparation-for-trial-form-aug-2010.pdf)  explaining your defence.

You may wish to explain in section 8.1 of the form that your arrest was unlawful. In section 8.4 of the form you may wish to state that the police direction on which the arrest and prosecution was founded has now been quashed as unlawful by the High Court in R (Jones and others) v The Commissioner of the Metropolitan Police [2019] EWHC 2957 (Admin) and that, as a result of the ruling of the House of Lords in Boddington v British Transport Police [1999] 2 AC 143, this is a complete defence to the charge. You should request a preliminary hearing for that defence to be considered.

If you have also been charged with other offences, these may have to proceed. They are likely to be unaffected by the above arguments.

How do I get my personal information and details removed from the Police’s databases?

The Police’s power to retain personal information (eg. your DNA or fingerprints) depends on your particular circumstances. If you are an adult and have been arrested or charged with (but not convicted of) Section 14/obstruction of the highway offences which have been discontinued, then any personal information must be destroyed unless you’ve previously been convicted of a recordable offence that is not an “excluded” offence (in which case the information can be kept indefinitely). Section 14 is a recordable offence but Obstruction of the Highway and Breach of the Peace are not. A “conviction” for these purposes includes cautions, warnings/reprimands and out of court disposals.
In order to have your details destroyed, you would need to fill in an application for destruction, set out in detail (with example applications) here: www.acro.police.uk/acro_std.aspx?id=701. Again, you can do this yourself or talk to one of the law firms listed above to get their assistance with it (especially if you’re planning to bring a claim for false imprisonment).
Those who have already been charged can also get their personal information which was published by the Police removed from their website. You can either write to the Police about this or consult one of the lawyers for further guidance.

What if I’ve already pleaded guilty to a Section 14 offence from October?

If you have already been charged with breaching Section 14 during the October Rebellion and have pleaded guilty then you need to find out from the CPS whether they will oppose an appeal against your guilty plea in light of the judicial review. This is most easily done through a lawyer, but you may be able to do it yourself if you’d prefer.
If the CPS confirms they would not oppose an appeal then you would need to make an application to reopen the case under s.142 Magistrates Court Act 1980. In these circumstances, the Court would re-open the individual cases, the CPS would offer no evidence and the convictions would be removed from the Court records and any prosecution costs previously paid by them should be returned. This is likely to be the quickest, easiest and cheapest route.
If the CPS indicate that they would oppose an appeal, then the process is more complicated and will likely include an application to the High Court to appeal against the guilty verdict, with which you would need legal advice.
Anyone wishing to pursue an appeal should contact a law firm who will then advise about next steps and potential fees.

This leaflet is for information purposes only. It does not constitute legal advice. We strongly recommend that you take legal advice if you are considering taking a civil claim or have been charged with a criminal offence.

For move information from Extinction Rebellion’s Legal Support team visit www.informeddissent.info