Legal information regarding Barclays proposed action

Overview of legal information for chalk based graffiti actions

This is a legal guide for activists who are considering graffiti actions.  It gives information about what is possible rather than what is necessarily likely.  Below we provide information on:

Potentially Relevant Law

Criminal Damage Act 1971

  • Instead of giving a Fixed Penalty Notice the police can arrest and prosecute for graffiti.
  • Graffiti can be a criminal offence if it causes damage or destruction of property, even if this damage is only temporary.
  • Generally it is an offence if a clean-up cost is incurred or if there is a diminution in value (although the latter is less likely for removable graffiti).
  • In persistent or serious cases homes can be searched, which can include searching computers.
  • Painting with soluble chalk or paints has been found to be criminal damage as it created a clean-up cost.

Punishments if found guilty of Criminal Damage

The following table shows the starting point for setting punishment for different levels of damage caused if the defendant pleads not guilty.

Note that if the action results in a clean-up cost, then the level of damage caused will usually be shown by an invoice for the cleaning work.  This invoice doesn’t need to be a reasonable price (‘specialist’ cleaning services have been used to clean chalk before). The value of damage is also accumulative across damage of a ‘similar character’.

  1. Examples of nature of activity                    
  2. Starting point                                
  3. Range

 

  1. Minor damage e.g. breaking small window; small amount of graffiti       
  2. Band B fine - 75 – 125% of relevant weekly income                 
  3. Conditional discharge to band C fine 125 – 175% of relevant weekly income

 

  1. Moderate damage e.g. breaking large plate-glass, or shop window; widespread graffiti         
  2. Low level community order – 40 – 80 hours unpaid work, with potential additional restrictions such as curfews and exclusion requirement.          
  3. Band C fine to medium level community order 80 – 150 hours of unpaid work with potential additional restrictions, such as curfews and exclusion requirements.

                                                                    

  1.  Significant damage up to £5,000, e.g. damage caused as part of a spree                                   
  2. High level community order 150 – 300 hours of unpaid work and other restrictions such as exclusions and curfews.    
  3. Medium level community order to 12 weeks custody

                      

  1. Damage between £5,000 and £10,000                      
  2. 12 weeks custody                                                                        
  3. 6 to 26 weeks custody

 

  1. Damage over £10,000                                         
  2. Crown Court                                                                                  
  3. Crown Court

https://www.sentencingcouncil.org.uk/offences/item/criminal-damage-other-than-by-fire-racially-or-religiously-aggravated-criminal-damage/

The actual sentence can vary within the range in the table depending on a number of aggravating or mitigating factors.

Aggravating factors include: deliberate group offence, serious damage, targeting a vulnerable victim, history of offences, damaging a public amenity or emergency equipment.

Mitigating factors include: impulsive action, minor damage, repairable damage, provocation.

Refusing to Pay a Fine

If you’ve been given a magistrates’ court fine and you don’t pay it, the court can:

  • Take the money from your wages or benefits.
  • Send bailiffs to your home to collect what you owe - you'll have to pay bailiff's fees as well as your outstanding fine.
  •  ‘register’ the fine - this means the fine will stay on your credit history for 5 years and might stop you from getting credit in the future.
  • In extreme cases you could be put in prison, but normally only if the court thinks you’re deliberately not paying.
  • May get a court hearing for not paying the fine.  This could lead to a 50% increase in the fine. It is also chance for your solicitor to explain your circumstances. 

https://www.citizensadvice.org.uk/debt-and-money/help-with-debt/dealing-with-urgent-debts/paying-a-court-fine

Other types of punishment

Caution:

  • The police, instead of prosecuting for criminal damage, can give a ‘caution’ instead.
  • Cautions are an admission of guilt. They do appear on your criminal record.
  • Offering you a caution is a way the police may ask you to admit guilt for an offence without having to charge you. It is an easy win for the police, as they don’t have to provide any evidence or convince a court of your guilt.
  • At the very least, you should never accept a caution without taking advice from a good solicitor.

Fixed Penalty Notice:

  • The local authorities and police can give Fixed Penalty Notices for graffiti under the Clean Neighbourhoods and Environment Act 2005.
  • They can also be called a Penalty Notice for Disorder
  • The fine is between £50 and £80 for graffiti and flyposting.
  • Must be paid within 14 days.
  • If paid, no criminal proceedings with be brought, but non-payment would be a criminal offence.
  • A Fixed Penalty Notice involves no admission of guilt and therefore they do not appear on your criminal record if paid.
  • A Fixed Penalty Notice is however recorded on the Police National Computer, and you are unlikely to be given it twice, especially for the same activity, as the police will see you already have one.

Attempting planning, helping or encouraging an action

There are a number of ways that people could be found to be committing an offence without actually doing any graffiti themselves.

Possession with intent to commit criminal damage

Carrying items without lawful excuse and intending to use them to cause criminal damage is an offence under the Criminal Damage Act 1971.

Attempts

You can also be found guilty of attempting an action, even if you don’t succeed.  You would have to take actions that are more than simply initial preparations for this to be the case.

Relevant Legislation; s 1(1)of the Criminal Attempts Act 1981

 

If found in possession of items that you intend to use for criminal damage, this would also be an offence. An example of this happening could be when there is an action already going on and the police suspect you of being about to join in and search you. 

Relevant Legislation; S.3. of the Criminal Damage Act 1971.

 

Encouraging or assisting

Even if you are not the person who actually does the action, you would still be committing an offence if you encourage or assist in an offence, either before it or during the time that the action is taken.   

In order to be found guilty, it would need to be established that you intended to help or encourage and that you were aware of the action you were helping or encouraging.  It does not matter whether you know that the action is a crime, it is enough to just know what it is.

Relevant Legislation; Serious Crimes Act 2007; Magistrates Courts Act 1980; Accessories and Abettors Act 1861.  

 

Conspiracy

It is also an offence to agree to commit a crime. The agreement must be between two or more people and must have been concluded – initial negotiations would not be sufficient. However, it would still be an offence even if the people do not actually get to the point of carrying it out before being caught.
The nature of conspiracy is the agreement between two or more people to commit an offence.
Relevant Legislation; - Criminal Law Act 1977.

Potential Defences

Lawful excuse
Where it can be shown that criminal damage was done to protect other property (whether your own or someone else’s); and it can be shown that you believed this property was in immediate need of protection and that the means of protection was reasonable in the circumstance; this may be a defence. It doesn’t matter if the belief was reasonable provided that it was honestly held. There is also a defence of lawful excuse where it was to prevent a greater crime.

There are two relevant examples of lawful excuse being used successfully by activists. In one example, significant damage was done to hawk jets, which would otherwise have been used to commit human rights abuses in Indonesia. The second targeted an arms manufacturer that was manufacturing weapons to be used in the occupied Palestinian Territories. In both cases, it was shown that criminal damage committed prevented a greater crime. Both were tried in the Crown Court before a jury, due to the level of damage being high (and therefore the risk of significant imprisonment if found guilty was high). Using chalk based paint, is more likely to be tried in a magistrate’s court before a magistrate who can even refuse to hear lawful excuse defences.

If you are planning a particular action where you want to be able to run a particularly defence speak to the Green and Black Cross (GBC) beforehand.

In the event of interactions with the police or arrest remember the following

  • No comment - you do not need to say answer any of the police’s questions or engage with small talk – it might seem harmless but will be gathering intelligence.
  • No detailsyou do not need to give your name or address if stopped or searched.  You can be arrested for not giving details only under the following circumstances
    • You are the driver of a vehicle.
    • You are suspected of anti-social behaviour – this could be the case with graffiti. 
    • The police wish to summon you for an offence or issue a fixed penalty notice.
  • Ask under what power- if you do get stopped, searched, arrested or asked for details – ask under what power the police are acting and where relevant request a search form. The power most likely used when not on a protest will be Section 1 of PACE.
  • What grounds -  you are also entitled to know what grounds you are being arrested/searched etc. If using Section 1 of PACE, the police must have reasonable individual suspicion that you are carrying particular items (eg. items that may cause criminal damage). If police are searching for one type of item but find others (eg. drugs or a bladed article) the police can then arrest for anything related to those newly discovered items.
  • Police and station details -  you should also be told the officers name and where relevant the station you are in/being taken to.
  • No duty solicitor – you have a right to a solicitor in the police station and do not need to pay for this, nor do you need to accept the solicitor on duty at the time.  The duty solicitor may not be an expert on activism, so we recommend using someone who is.  Netpol has a list of good solicitors in various areas. Details can be found here - https://netpol.org/solicitors/
  • Call for legal support; Green and Black Cross GBC are a voluntary network that provide legal support and advice to activists.  In the event of an arrest of yourself or a fellow activist you can call their helpline for support on 07946541511.  Note that if you are arrested, you only get one personal call and one solicitor call, GBC would be your personal call.