Can I be ‘pre-emptively’ arrested?

Submitted by R Totale on June 22, 2020

In case you missed it: Roger Hallam, one of the co-founders of Extinction Rebellion, has been ‘pre-emptively’ arrested the day before he – and other members of XR splinter Heathrow Pause – were due to disrupt flights at Heathrow airport using remotely piloted drones. While the notion of a ‘pre-emptive arrest’ has a decidedly Orwellian ring to it (the term comes directly from Heathrow Pause’s press release), it’s important to realise that there’s nothing particularly unusual about this, and that the police have broad ranging powers to arrest people before they (appear to) have committed a substantive offence.

Breach of the Peace:

The arrest of activists in the run up to demonstrations is an age-old tradition in this country, usually carried out in the name of “protecting the queen’s peace”. According to the modern authority on the issue – R. v. Howell [1982] QB 416 – a breach of the peace occurs “when a person reasonably believes harm will be caused, or is likely to be caused, to a person or in his presence to his property, or a person is in fear of being harmed through an assault, affray, riot, unlawful assembly, or some other form of disturbance”. R v. Howell also confirmed the long-standing common law power of police officers to place people under arrest in order to prevent an imminent breach of the peace (that they reasonably and honestly believed would have occurred had the arrest not taken place). The most (in)famous recent instance of this took place on the morning of the Royal Wedding 2011, when the Met arrested and detained anti-royalist activists at several locations across Central London, eventually releasing them without charge once the festivities had ended. When the legality of this decision was challenged, the Supreme Court firmly sided with the police, ruling that preventative detention of this sort was fully compatible with the activists’ Article 5 right to liberty and security [R (Hicks) v Commissioner of the Police for the Metropolis].

Conspiracy and Inchoate Offences:

The arrest of Hallam and other members of Heathrow Pause was not, however, undertaken to prevent a breach of the peace. According to the Met, they were arrested for ‘conspiracy to commit public nuisance’. The law against ‘public nuisance’ and its use against protestors is a topic that will be explored fully in a later article. What concerns us here is the charge of ‘conspiracy’.

Criminal conspiracy is what’s known as an ‘inchoate offence‘: an offence which relates to a criminal act which has not (yet) been committed. Other examples include attempting to commit an offence (contrary to s1(1) of the Criminal Attempts Act 1981) or encouraging or assisting an offence (contrary to s44 of the Serious Crime Act 2007). It is thus possible for a person to commit an inchoate offence before or without the ‘main criminal act’ (ever) taking place, or without them having any intention of personally participating in the act.

As defined by Section 1(1) of the Criminal Law Act 1977, an offence of criminal conspiracy is committed when one person agrees with any other person(s) 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 pledging to illegally disrupt a major transport hub does potentially constitute, in and of itself, a criminal offence for which the participants could be arrested, tried and punished (even if they never got around to disrupting anything).

For this reason, today’s arrests cannot – strictly speaking – be regarded as ‘pre-emptive’. The crime Hallam et al have allegedly committed has already taken place: the agreement to perform an illegal act.

Since the first appearance of XR’s forebear, Rising Up, the activist legal support community has been warning that getting people to publicly ‘sign up’ to illegal activity in advance is a sure-fire way of building a conspiracy case against you. Today’s arrests prove the prescience of these warnings, even if they afford us little by the way of satisfaction (state repression never does).