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Pleading guilty or not guilty

The plea that you enter can be a difficult political choice. It should be considered in the context of the aims of the action and your ability to conduct a court case and deal with the range of possible penalties.

Pleading guilty

Many, if not most, activists tend to plead guilty because it can be 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 nonviolent actions.

Entering a guilty plea at your mention date means that the case will be heard and determined quickly and hence you will not be burdened with a drawn out court case. If you feel that you can achieve more by investing energy elsewhere there is a strong case for a pragmatic plea of guilty.

It is important to note that a plea of guilty will (in the absence of various other factors) ensure a criminal record.

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 this depends largely on the magistrate who hears the case and the charge faced.

Despite the relative ease of pleading guilty, some degree of legal support is still required if people are to minimise the penalties imposed and enter pleas in mitigation of sentence. If at all possible those charged should be present and represented at their hearing.

The courts operate on the basis that most people will plead guilty to the charge/s laid against them. Some activists say that pleading guilty supports the system and allows police, on occasion, to get away with the most outrageous charges simply because they were never forced to prove them.

Other activists say that pleading guilty to a charge, by its very nature, recognises the validity of the law and the system of criminal justice.

At a personal level a plea of guilty can be seen as an acceptance that what was done was indeed criminal and worthy of punishment by the state. That is, of course, unless you do not recognise the legitimacy of the state. If this were the case then the most logical course would appear to be the entry of no plea.

Diversion

For minor offences (for example - trespass) division may be available to activists who do not have any previous court matters. Diversion provides a chance to avoid a criminal record.

In order to be eligible the offence with which you were changed needs to be triable summarily and not be subject to a minimum or fixed sentence penalty.

In order to be eligible for diversion you need to accept responsibility for the offence. For many activist this raises similar issues as discussed above in the ‘pleading guilty’ section (ie. supporting the system, allowing police to get away with outrageous charges, recognises the validity of the law, accepting that what was done was criminal).

Additionally, to be eligible for diversion the prosecution (the police officer who arrested you) needs to recommend you for diversion. Sometimes it is useful for a lawyer to contact the police officer by letter or phone to put forward arguments why diversion would be appropriate in your case.

If the police officer recommends you for diversion a magistrate or judicial registrar still needs to find you fit for diversion before it can proceed.

You will therefore be required to attend court and present to the Diversion Co-ordinator. You are asked to fill out a questionnaire relating to your ‘offending’ and your attitude towards its. Again, for many activists balancing political and pragmatic objective can sometimes be a difficult process. On one hand, many activists would not feel comfortable saying they ‘regret’ the actions they took and they would never do the same thing again, while on the other hand, many magistrates would be very uncomfortable with you writing you are proud of and celebrate your actions, that history will record them in heroic terms and that you are prepared to do the same and encourage others to do the same tomorrow! As always, discussions with lawyers, legal support team and other activists are useful to develop an approach towards the court process that you find ethical, political strategic and pragmatic.  

The benefits of division are that you no not receive a criminal record, which has advantage when applying for visas for some countries, applying for jobs or for (potential) future court matters.

There are generally conditions attached to a diversion orders. Common conditions include:

  • a contribution to a fund (sometimes the court fund, other times to a particular charity - in some cases to Friends of the Earth or other NGOs, but in other’s to the police association’s Blue Ribbon fund!)
  • a condition to be of good behaviour for a set period of time (generally ranging between 3 - 6 months)
  • writing a letter of apology

For further information see the Magistrates Court ‘Criminal Justice Diversion Program’

Pleading not guilty

Many activists feel that by pleading not guilty they can question the validity of laws that they are alleged to have broken.

At a political level a plea of not guilty is effective in two ways. The first is that the police have the onus to prove the offence with which they have charged you. In mass actions this requirement alone may seriously overburden the court system. The successful defence of a small number of those charged may also 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 can be 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 favourable publicity for the issue. The defence in such cases can be seen as the second half of the symbolic victory of the 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.

No plea

The entry of no plea by a defendant will be considered by the court as a not guilty plea.

Refusing to enter a plea or remaining silent when asked is an extension of non-cooperation with the legal system. If you also refused to cooperate with the police when you were arrested this may be a consistent approach. This could be effective at both a personal and on a broader political level.

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 guilt because (presumably) the only evidence presented will be that of the prosecution.