Before attending an action, it’s crucial that all rebels inform themselves about their rights as protesters and the possible consequences of arrest.
Whilst our street actions are exciting and eye-catchy, XR also has a legal strategy for rebels who get arrested at our actions and go to court. If the courts keep hearing the same message from us, that message will get through and more people will demand the urgent and radical action that is required.
Below you can download our legal briefing and strategy documents or find answers to some frequently asked legal questions.
- Is there a quick legal intro I can read to help me preprare for action days?
Yes, have a look at our lovely XR Legal Infographic and Briefing
- What happens during an arrest?
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 can 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.
It's important to note, however, that the police don't always do what they are supposed to do.
- What happens at the police station?
When you arrive, you will be 'processed' and asked a lot of questions at the custody desk of the police station. Here, it is advisable to give your name, date of birth and address - otherwise, they can hold you in the police station until you go to court which, in the worst case, could mean that you got arrested on Friday night but will only be able to go to court on Monday morning.
You need to give your nationality when asked.
The only other question that you may not want to answer with “no comment” is the question of your mental health; if you don’t have any mental health issues, you may want to say so as otherwise, the police will have to check your cell every half hour or so.
If you do have mental health issues then you might want an appropriate adult, in which case you will need to answer “yes” to this question.
If you know that you will need to take medication whilst held at the station, bring an unopened package of your medication and your prescription with you. You can also ask for a doctor at any time.
Police can take your fingerprints, DNA and pictures. There are certain exceptions to this rule which are if you were arrested for Obstruction of the Highway or Breach of the Peace in which case you can refuse to give this information.
All your possessions will be taken off you. You can ask to be allowed to take your book with you into your cell, often that will be granted. You can also ask for a copy of the PACE (Police and Criminal Evidence Act) regulations to read which covers your rights.
Once you’re in the police cell, you have a right to the following things:
- Regular meals (if needed, vegan, gluten free etc)
- Water, tea or coffee at meal times, and maybe more often if you ask nicely
- Jumper, blanket and pillow if you’re freezing
- Light to be dimmed if you want to sleep
You have a right to free legal advice once you’ve been arrested. Don't use the duty solicitor but use one of these recommended protest solicitors:
- Hodge Jones Allen (HJA): 0800 437 0322
- Irvine Thanvi Natas (ITN): 020 8522 7707
- Bindmans: 020 7305 5638
- Kellys (outside London): 01273 674 898
A solicitor from the requested practice should come to the police station and you can have a one-to- one chat with them. However, don’t rely on it being private, it may be monitored. Make sure not to say anything incriminating while you’re under arrest.
Often, you will be asked to do a police station interview. We advise you don’t do it without your solicitor being present. There are two options for your police interview. Either you do a “no comment” interview and respond to every question with “no comment” or just remain silent. Or you read out a pre-prepared statement which will be recorded and often used in court. The XR Legal strategy team has written a police station statement which fits into our overall legal strategy. It can be useful as what you say in the police interview may be read out in court. Often, you won’t be given enough time to make your point yourself in court, but police station interviews are usually read out so it’s a good way of making sure that you can make your point. In the police station interview, you may be asked purposely provocative questions which can make you feel defensive, annoyed, angry and so on. To avoid saying anything incriminating, it is advised that you switch back to responding with “no comment” to any questions after reading out your statement.
You also have a right to a phone call. You can call anyone, from friends, relatives to your affinity group’s welfare person. This is your chance to make sure that the relevant people know where you are being held so that the arrestee support team can come and pick you up after you’ve been released. During the week of rebellion, you can call the back office on 07749 335574 to make sure somebody knows of your arrest and where you have been brought.
The police can hold you for a maximum of 24 hours unless they get authorisation from a superior officer to keep you for longer. Very often, arrestees are released in the middle of the night so plan for that scenario (e.g. make sure you don’t need to work the following day). The arrestee support team will be waiting for you (hopefully) with some snacks and warm drinks. During the week of rebellion, you can call the back office if no one is waiting for you to find out how to get back to your accommodation etc. Here, it also becomes important that you have some cash with you so you can get home safely - make sure you know your address by heart! Sometimes, some of your property will be kept as evidence.
- Will I get a criminal record?
Criminal records are not straightforward and vary greatly from individual to individual. If someone wants to view your criminal record, you need to go through a DBS Check. There are regular DBS checks – a lot of minor offenses like Obstruction of the Highway will stop to show up on a regular DBS check some time after your conviction. However, there are also Enhanced DBS checks. If you work with children, vulnerable adults, in the legal professions or in the police force, your employer will usually ask you for an Enhanced DBS Check. In theory, any charges that you have ever been found guilty for and even arrests can show up on an Enhanced DBS check at the discretion of the Chief Officer of the relevant police force. In practice, that is very rarely the case and many cases are known when convictions for minor crimes did not show up on Enhanced DBS checks. So it is very difficult to make any generalisations. If you think that you are likely to be charged with a certain offense in the future, it is up to you to do some research on how these offenses could show up on your criminal record.
It is important to start thinking about how a criminal record will affect you individually at an early stage. You can be asked for a DBS check when you apply for visa for certain countries, for insurance, for certain jobs, to educational institutions, and to stay in the UK either on a visa or as an EU national. However, just because you have a criminal record doesn’t necessarily mean that this record will stop you from e.g. getting a job, especially if you are given the chance to explain the circumstances of your arrest to your employer.
For more information, please read the full legal briefing.
- Can I travel abroad with a criminal record?
If your destination country requires a visa, you will have to disclose your conviction on the form, and different countries have different attitudes to different offences. Travel to the USA and Israel might be difficult. For visa-free travel (including, hopefully, the EU after Brexit) there should be no problem, although confirmation from the relevant embassy might be wise.
For more information, please read the full legal briefing.
- Does it make a difference if I'm arrested multiple time?
If you have repeated arrests or convictions, especially for the same or similar offences, you are more likely to be charged as the police and prosecutors consider there is a greater “public interest” in prosecuting you.
If you are arrested after you have appeared in court for a previous offence when the case for that previous offence is ongoing, then sentencing for the previous offence may be harsher. You may also be kept in remand (jailed for the period of the trial) if the new offence is charged.
If you have a criminal record, you are likely to get a heavier sentence if convicted of a new offence. You are also likely to receive a higher sentence for offences you commit while you are on bail following other arrests.
If you received a conditional discharge for the first offence, you could be re-sentenced and given the maximum sentence for that offence if you breach the conditional discharge by committing a second offence.
- Will getting arrested be expensive?
The process of arrest itself should not cost you anything (potentially loss of earnings if you can't work the next day or are held for longer than 24hrs), legal representation from the recommended solicitors is free (see “What Happens at the Police Station?”). However, being charged with an offence can become very expensive. There are lots of potential costs to think about which include court costs, legal representation, victim surcharge, damages, civil liability and court fines. Travel to court can also be expensive as you will have to travel a few times to the court in the vicinity of your arrest.
XR don’t pay for costs of any kind with the exception of travel to court in cases of exceptional financial hardship. However, we encourage affinity/local groups to support their arrestees by making crowdfunder pages to help cover costs. Please exercise caution when describing the crowdfunder. ‘XR Local Group Costs’ would be fine, but not ‘Help pay XR Court fine’, for example.
For more information, please read the full legal briefing.
- What might I get arrested for and what are the potential sentences?
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 at XR protests were charged. Often for a first-time minor offence committed at a protest, the sentence will be a fine of £100-200 or less and a conditional discharge. It is important to note that if you are arrested multiple times then you could easily begin to incur the maximum sentencing.
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.
Read more about maximum sentences for common offences.
- Does Extinction Rebellion have a legal strategy?
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, these documents are not a substitute for legal advice. Even if you choose to represent yourself at the trial, it's usually a good idea to take independent legal advice. In the Downloads section above there 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.