Legal Organisation and Nonviolent Action

One of the distinctive features of a well organised protest action is that
greater effort is put into the planning and design of an action than would
otherwise be the case.  Actions by small numbers of people obviously require
different tactics to mass actions.  Thought should go into the design of the
action so that it is the best action to fulfill the goals of those performing
it.  By defining the aims of the action well it is possible to focus the
action and any publicity it gains on the issues it is intended to highlight.

Most NVA is oriented toward achieving specific aims, usually involving the
gaining of publicity through the action.  Often the action itself and the
publicity surrounding it are the end of the process.  This is certainly the
public perception of NVA since this is what will be reported in the media.

Yet for those involved, the consequences of participation in the action may
extend well beyond the action itself.  This is because many actions in
Australia result in the arrest and charging by police of those involved.

There are several responses to this reality which ought to be considered
during the planning stages of an action or series of actions.  In terms of the
continuing role of NVA in the political process it is essential that during
the organisational stages, planning extends beyond the performance of the
action itself to its immediate aftermath and the consequences that flow from
it.

The conventional wisdom is that nonviolent protest is met by repression.  In
Australia this generally takes the form of criminal charges being laid against
those involved.  Indeed the success of many nonviolent actions depends on
arrests being made as they
(a) are likely to attract media attention and
(b) serve as one of the benchmarks of how serious an issue is in the eyes of
the media and the public.

Where there are arrests there almost certainly will be charges against those
arrested.  Police will generally only make arrests where they intend to charge
people and "preventative arrests", while they may occur, are rare.

Thus, if arrests are a likely consequence or the deliberate strategy of NVA's
one must consider
(a) how to respond to arrests and the ensuing criminal process and
(b) what this means in terms of the organisation of NVA's.

The response to criminal charges is a factor which should be considered in the
context of the aims of the action and the people involved in the action.  In
terms of organisation, for example, the plea that is entered in response to a
charge has a great bearing on what is required of an individual as well as
what is required in larger scale organisation.  The discussion of options
below is from the perspective of actions in the South East Forests of NSW
where large numbers of people from a wide variety of backgrounds were
arrested. It focuses on considerations relating to maintaining the involvement
of a broad range of people in nonviolent actions.

Pleading Guilty
The following are the reasons for pleading guilty:

(a) The people involved "feel guilty".  Most NVA's that lead to arrests
involve noncompliance with sources of authority, such as not obeying a police
direction. If someone is seen to be challenging authority or not respecting
traditional authority (as is often the nature of nonviolent protest) then
there is a high probability that they will be charged by police with some
offence.  The fact that they are charged may bear little relation to whether
they actually committed that offence.  Especially in smaller actions where
peer support is lacking, protesters may feel "guilty" because they broke their
habit of obeying traditional sources of authority. This however does not mean
that they are guilty in any legal or moral sense of the crime which police
charge them with.

Unfortunately, despite the nominal presumption of innocence the criminal law
of magistrates courts operates on the basis that most people will plead guilty
to the charge/s laid against them.  As a result, for those who do not
understand the politics of the magistrates court, being charged is as good as
being convicted. This is the attitude that perpetuates the system and allows
police, on occasion, to get away with the most outrageous charges simply
because they were never forced to prove them.

(b) Submission to the repression is part of the means whereby nonviolent
action forces gain moral superiority and demonstrate the injustice of the
forces which oppose them ("the martyrdom approach")

This argument is only relevant when the aim of the protest is to highlight the
injustice of the whole system of justice.  This is not usually the case in
Australia.  Generally actions are restricted to a particular issue and the aim
of the action was to draw attention to that issue.

Pleading guilty to a charge, by its very  nature recognizes the validity of
the law and the system of criminal justice which administers it.  The success
of the strategy depends on the punishment of those pleading guilty being seen
by the public or their supporters as unjust or repressive, demonstrating the
moral weakness of the opposition and providing a focus for more support.

There have been recent cases of the successful use of the "martyrdom strategy"
in the South East Forests, however these involved a refusal to accept
unreasonable bail conditions rather than pleading guilty to the offence.  The
refusal lead to the imprisonment of those involved.  The legal issue was then
whether justice was served by refusing bail to (and hence imprisoning) people
who were charged with an offence, the maximum penalty for which was a
relatively small fine. An appeal to the New South Wales Supreme Court was
successful in overturning the magistrates decision and was also successful in
gaining considerable media attention and public sympathy.

(c) Pleading guilty is so much easier, involves little or no organisation and
need not involve legally trained people.  This is the dominant reason why
people plead guilty to summary offence charges arising out of NVA's.  Pleading
guilty is easy.  There are several advantages to pleading guilty.  It means
that the case will be heard and determined quickly and hence the person
charged will not be burdened with a drawn out court case.  If a person feels
that they can achieve more by investing their energy elsewhere there is a
strong case for a pragmatic plea of guilty.

In large scale campaigns it is important to note that a plea of guilty will
(in the absence of various other factors) ensure a criminal record since most
offences with which people will be charged will be criminal.  This is a factor
which must be considered and made clear to potential participants before an
action.  Although the difficulties of having a criminal record are often much
overrated it nevertheless remains an issue for some, especially relating to
concerns over entry into professional associations.

By cooperating with a system which operates on the basis of a large proportion
of guilty pleas it might be reasonable to expect a lighter sentence although
the truth of this depends largely on the magistrate who hears the case.

Despite the relative ease of pleading guilty some degree of organisation is
still required if people are to minimize the penalties imposed and entering
pleas in mitigation.  If at all possible those charged should be present and
represented at their hearing.

Pleading Not Guilty
Many people feel that pleading not guilty is a means whereby they can question
the validity of laws which they are alleged to have broken.  However the main
justification for pleading not guilty is as an extension of noncooperation
with forces of repression. This is effective at both a personal and on a
broader scale political level.

At a personal level a plea of guilty is an acceptance that what was done was
indeed criminal and worthy of punishment by the state.  That is of course
unless one does not recognise the legitimacy of the state.  If this is the
case then the most logical course would appear to be the entry of no plea (see
below).  A guilty plea is an effective betrayal of the reason for protesting
because one accepts that it is wrong to do so.

The entry of no plea by a defendant will be considered by the court as a not
guilty plea.  However the entry of no plea by a defendant who refuses to
recognise the validity of the system of justice will almost inevitably lead to
a finding of guilty because (presumably) the only evidence presented will be
that of the prosecution.

At a political level a plea of not guilty is effective in two ways.  The first
is that it places the onus on the police to prove the offence with which they
have charged the protester.  In mass actions this requirement alone will be
enough to seriously overburden the court system.  The successful defence of a
small number of those charged may be successful in forcing the prosecution to
drop charges against other arrestees which cannot be successfully prosecuted.

The second advantage of a not guilty plea is publicity.  If one of the aims of
the action was to gain publicity for an issue then the successful defence of
those involved will gain further favorable publicity for the issue.  The
defence in such cases can be seen as the second half of the symbolic victory
of nonviolent action.

A not guilty plea is only useful if the case can be won.  If people intend to
plead not guilty there is little point in doing so unless sufficient effort is
put into their defence to give it a good chance of success.  The risk of the
not guilty plea is that of higher penalties and the imposition of costs on
those found guilty.  This is the disadvantage of pleading not guilty, it
requires organisation if it is to be successful.

Implications for Organisation
The law is for those who are not continually involved with it an intimidating
thing to deal with.  However it is essential that those organising NVA's come
to grips with it early in the organisational process.

One of the most difficult features of the legal process is the time it takes
to reach a decision. A not guilty plea in magistrates courts will generally
take a matter of months before a decision is reached.  However if the case
goes to appeal, even minor matters can take years before they are resolved. 
It is thus important to try to defeat the charge in the magistrates court
rather than let it go any further.  Whatever the case, it is clear that the
presence of on going legal/organisational support is essential.

It is also important to obtain legal advice as to what those involved in
actions are likely to be charged with.  It may be possible to have an equally
successful action that does not involve the possibility of police charging
people.
If at all possible it is good to have someone with some legal background
present during the action.  They can play two main roles.  The first is that
of mediator and liaison with the police.  Someone with some experience in
handling police may be able to be assertive enough to handle typical police
tactics and yet be someone with whom the police can liaise.  This will help
minimize the possibility of police over-reaction or violence.  The other role
is in collecting information that may be relevant to defence of people charged
during an action.

Legal organisation becomes particularly important where mass arrests are being
planned.  Issues are often given importance in the political sphere relative
to the number of arrests that have been made.  If this is the case then the
deliberate policy of arrests may be successful as part of an overall lobbying
strategy.  In such a situation any organising or coordinating body should
consider its policy in relation to criminal charges.

From the point of view of those organising NVA's aimed (overtly or otherwise)
at procuring arrests there are three options:
* "Abandon" those arrested to organise their own defence
As the title suggests this to some extent represents a betrayal of those
willing to be arrested.  In organising an action in which people will be
arrested the organising body does take on some responsibility.  Even where the
"organising body" is diffuse or remote, people involved see their actions not
simply as a personal action for which they alone bear responsibility but as
part of a wider political process in which the organising body plays a role.

* "Pass Off" the responsibility for the defence of those involved to another
organisation
If this were possible it would be a very attractive option for the body
organising the actions.  However there is currently no legal organisation
committed to the defence of people arrested in NVA's.  The prospect of taking
on large numbers of arrestees for little or no reward (given the somewhat
doubtful prospects of legal aid funding) is, understandably not particularly
attractive.
While an informal network of sympathetic legal workers may provide services in
the case of a relatively small numbers of arrestees, in larger scale actions 
a coordinating body is at least required.

* Take on responsibility for the defence of those arrested and invest the
resources of the organisation in their defence
For organisations with limited resources this is not an attractive option. 
Given that the organisation will generally be dedicated to a relatively narrow
range of issues it does not seem a good idea for that organisation to invest
resources into the potentially endless legal process when its policy aims may
be more directly served by expenditure of money elsewhere.

In practice a mixture of the above will generally emerge and is probably the
most cost effective option.  If nonviolent action is to remain an effective
option in political issues then abandoning people is not a realistic option
although it is easy to see elements of this strategy in the actions of most
organising bodies since no one really wants to take on responsibility for the
messy process of legal organisation.

Conclusion
Although a relatively straightforward concept, the necessity of organising for
the legal consequences of NVA's prior to their execution has not been widely
recognised.  It has even less often been achieved.

Legal workers should be involved as an integral part of the planning process
for NVA's rather than maintaining the traditional separation of roles between
the legal and non-legal workers.  Involving legal workers only after people
have been arrested and charged not only produces less satisfactory legal
outcomes but is also, I believe, inconsistent with the broader aims of
nonviolent ideology.

David Mossop