Don’t want to get arrested before a demo? Then don’t publicise a plan to break the law!

The raid on Animal/Extinction Rebellion’s warehouse shows why you shouldn’t publicly broadcast plans to break the law.

On multiple occasions over the last few years, I have taken it upon myself to caution the wider movement – and Extinction Rebellion activists in particular – that if you publicly advertise an agreement or plan to break the law, you are asking for trouble. This was a lesson that XR learnt the hard way back in 2019, when one of their warehouses was raided in the run up to the October rebellion.

There was, therefore, a certain sense of déjà vu about the news that the Met had raided a number of Extinction/Animal Rebellion associated locations, arresting 12 activists and confiscating a load of gear that the cops say was going to be used to obstruct roads and damage property as part of today’s Free the Press action.

Understandably, internet onlookers have been decrying the raid as dystopic proof that the police are now arresting activists for “pre-crime“, that is, crimes that have not yet been committed. However, as I observed in my piece on the Heathrow Pause arrests back in September 2019, you don’t have to successfully pull off an act of civil disobedience/direct action in order to be arrested and/or prosecuted for it, as you can be done for a whole range of crimes known as “inchoate offences”.

Without going into all the legal details – which are available in the Heathrow Pause article – an offence is “inchoate”, if it relates to a criminal act which has not (yet) been committed. The most commonly-known examples of inchoate offences are “attempting to commit an offence” and “encouraging and assisting an offence”. However, there is also an offence known as “conspiracy”, which is committed when one person agrees with one or more others to undertake a course of action which, if the agreement is carried out, would amount to or involve the commission of a crime.  Importantly, no one need perform the agreed course of action for the offence of conspiracy to be committed; the actus reus (wrongful action) is simply the agreement to commit a crime.

Consequently, a group of people making a plan to “change the state” of the offices of a major newspaper publisher, for example (contrary to Section 1 of the Criminal Damage Act), would probably be committing a criminal offence even if, as a matter of fact, they never go anywhere near the offices. Furthermore, as conspiracy is triable only on indictment, if the cops have reasonable grounds to suspect that such a plan has been made, then – in line with Section 17(1)(b) of PACE – they are entitled to enter premises for the purpose of arresting those they suspect of being part of that agreement. (1)

The only thing that really stops the police raiding activists more often is that it’s quite difficult for them to gather evidence of a conspiracy before the substantive offence has been committed (i.e. they only work it out once they’ve had a chance to trawl through participants’ phones c.f. the Welling anti-fascist trial 2011). However, if you publicly advertise your intention to break the law in advance – as XR and Animal Rebellion are wont to do – the cops are very likely to come a-knocking. This is particularly true if you are XR because – as we saw at the recent G7 protests – the cops are taking any and all opportunities to disrupt their actions before they begin.

It is here that we glimpse something like the concept of pre-crime: it is not that the police are arresting activists for offences that have not yet come to pass but that they are out to prevent protest from taking place by sabotaging organising efforts in advance of the day of action. There’s nothing particularly new about this but by publicly declaring their intention to break the law, groups like XR and Animal Rebellion are certainly making the cops’ jobs easier.

Carl Spender

(1) This power also extends to “either-way” offences. Raids can also take place after arrest for an indictable offence, under Section 18 of PACE.

Image Credit: Wikicommons