The danger in any kind of activism is that the police step in to a legitimate situation and either misguidedly or for their own hidden agenda, start arresting people (or threatening to arrest) for Breach of the Peace. The reality is that in 2015 the police force is woefully under-trained in law – they know practically NOTHING about the laws they are supposed to be upholding or enforcing.
Breach of the Peace UK Definition
An individual arrested to prevent a breach of the peace does not have to be taken before a court. There is no power to continue the person’s detention beyond the time where a recurrence or renewal of the breach of the peace is likely.
The law in breach of the peace UK cases is well established, and should be known by all serving Police.
The leading authority is the Court of Appeal case of R v Howell (1982), which you can read by clicking on the link.
Howell shows the legal elements of this ‘common law offence.’
Unlike ‘statutory offences’ which are passed in parliament, breach of the peace law has developed over years of cases passing through the courts. It is entirely Common Law.
Howell brought the legal authorities together.
The definition of breach of the peace used in that UK case is that the behaviour of the person involved caused the police officer (or private citizen) to believe that:
- a breach of the peace had or would occur; and that
- it related to harm which was actually done or likely to be done to a person or, in his/ her presence, their property.
The R v Howell case also confirmed that the police (or a private person) have the power to arrest without a warrant where:
- a breach of the peace was committed in the presence of the person making the arrest;
- there was a threat of a breach of the peace being renewed; and
- although no breach had been committed, the person making the arrest reasonably and honestly believed that such a breach would be committed in the immediate future.
So, provided the police follow the straightforward guidance in Howell, they ought to be able to justify arrests for breach of the peace.
The R v Howell case also confirmed that the police (or a private person) have the power to arrest without a warrant
The police have no more authority than WE DO. If you can be absolutely certain that a POLICY-MAN is conducting himself or herself in a manner which breaches the peace – you have an obligation to arrest him or her. This is not to be undertaken lightly and certainly not without enough boots on the ground to overpower the POLICY-MAN (without violence or threat of violence!!!).
One example of such a situation would be where a policy-man was assisting a Bailiff or locksmith gaining entry to the home of a lawful; rebel against their will. Both the policy-man and the locksmith would be conducting themselves in a manner which:-
it related to harm which was actually done or likely to be done to a person OR, in his/ her presence, their property.
It is also well worth downloading a copy of S26 of the Criminal Justice and Courts Act 2015 which clearly delimits the line between an officer doing his duty and one who is behaving unlawfully. At the time of writing, very few police officers are aware of S26 and it is immensely powerful.
Police Guidance on Breach of the Peace
‘Breach of the peace’ is a common law concept which involves various powers in order to prevent a breach of the peace in both public and private places: these are arrest, intervene, or detain by force.
It is not a criminal offence, but a ‘complaint’, laid before the court with an application made for a person to be bound over to keep the peace.
Complaint – Breach of the peace
The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint.
Magistrates’ Courts Act 1980, s 115(1)
Points to prove
✓ behave in a manner
✓ whereby breach of the peace
✓ was occasioned/likely to be occasioned
Meaning of breach of the peace
A breach of the peace may occur where harm is done or is likely to be done to a person, or to their property in their presence, or they are in fear of being harmed through assault, affray, riot, or other disturbance (R v Howell  QB 416, QBD).
• Section 115 of the Magistrates’ Courts Act 1980 provides magistrates’ courts with the power to order a person to be ‘bound over’ to keep the peace and/or be of good behaviour towards a particular person.
• The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint.
• If any person fails to comply with the order, the court may commit that person to custody for a period not exceeding 6 months or until they comply with the order.
• The ECtHR in Hashman and Harrup v UK (2000) 29 EHRR 241, ECtHR found the notion of ‘to be of good behaviour’ was too vague and uncertain (see ‘Related cases’ below). A later court ‘practice direction’ stated that any such order must specify the type of activity from which the offender must refrain.
• In the case of Steel v UK (1998) 28 EHRR 603, ECtHR it was held that the concept of breach of the peace had been clarified by the courts to the extent that it was sufficiently established that a breach of the peace was committed only when a person caused harm, or appeared likely to cause harm, to persons or property, or acted in a manner the natural consequence of which was to provoke others to violence. It was a procedure that came within the ambit of the ECHR and is lawful as long as the action taken is proportionate to the nature of the disturbance and also having regard to the values of freedom of expression and assembly.
• Notwithstanding that for some purposes proceedings under s 115 are treated as criminal proceedings, since the procedure is by way of complaint it is primarily a civil process. The jurisdiction of the justices does not depend on a summons being issued, nor does the absence of a complaint in the form prescribed invalidate the procedure.
Wright v Commissioner of Police of the Metropolis  EWHC 2739, QBD W was involved in a demonstration and moved into a protest pen. Held: The police ‘kettling’ tactics in this case had been minimal, necessary and proportionate. W had still been free to demonstrate, albeit not quite where he had wished to.
R (on the application of McClure and Moos) v Commissioner of Police of the Metropolis  EWCA Civ 12, CA (see 2.6.1 ).
Austin v UK  Crim LR 544, ECtHR (see 2.6.1 ).
Hashman and Harrup v UK (2000) 29 EHRR 241, ECtHR The defendants had not acted violently or threatened violence, but had behaved contra bonos mores (behaviour seen as ‘wrong rather than right in the judgement of the majority of contemporary fellow citizens’). The ECtHR stated that the expression ‘to be of good behaviour’ was imprecise and did not give sufficiently clear guidance for their future behaviour. Held: That Art 10 (freedom of expression) had been violated, binding over for contra bonos mores behaviour was incompatible with the ECHR and rights such as freedom of expression or assembly.
R (on the application of Hawkes) v DPP  EWHC 3046 (Admin), QBD Verbal abuse not enough to commit breach of the peace.
R (on the application of Laporte) v CC of Gloucestershire  UKHL 55, HL Three coaches stopped and searched under a s 60 authority (see 8.11.3 ) on intelligence that occupants would cause disorder at RAF base were returned back to London. Although the police actions were based on a reasonable and honestly held belief in preventing an apprehended breach of the peace, they had acted unlawfully and disproportionately because a breach of the peace was not ‘imminent’ at the time the coaches were stopped; thus interfering with the protesters’ rights under Arts 10 and 11 (see 1.1 ).
McGrogan v CC of Cleveland Police  EWCA Civ 86, CA If a person is detained for an actual or threatened breach of the peace, then continued detention is limited to circumstances where there is a real, rather than a fanciful, fear, based on all the circumstances, that if released the detained person would commit/renew a breach of the peace within a relatively short time. It cannot be justified on the ground that sooner or later the prisoner, if released, is likely to breach the peace. The officer must have an honest belief, based on objectively reasonable grounds, that further detention was necessary to prevent such a breach of the peace. Ensure compliance with PACE Codes (see 12.2.1 ).
• A breach of the peace is not an offence, so bail cannot be given.
• Breach of the peace can occur on private premises. If the police have genuine grounds to apprehend such a breach, they have a power of entry to deal with or prevent a breach of the peace (see s 17(6) of PACE, 12.3.2). This right of entry is not absolute, but must be weighed against the degree of disturbance that is threatened.
• A police officer must not remain on private premises once a breach has finished (assuming it is not likely to re-occur), but as long as the officer is lawfully on the premises in the first instance, they are entitled to be given the opportunity to withdraw.
• Officers attending private premises with officials such as bailiffs may have to enter them to prevent a breach of the peace while a Court Order is being enforced.
• An individual arrested to prevent a breach of the peace does not have to be taken before a court. There is no power to continue the person’s detention beyond the time where a recurrence or renewal of the breach of the peace is likely. If there is such danger they should be detained for court (see McGrogan v CC of Cleveland Police  EWCA Civ 86, CA above).
• Release may occur at any stage: at the scene, after they have been taken from the scene, or at the police station.