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Breach of the Peace: the Case for Abolition
Professor Richard Stone
Visiting Professor, City University
© Copyright Richard Stone 2001
First published in the Web Journal of Current Legal Issues in association
with Blackstone Press.
Summary
This paper considers the various powers which are available to the police
in respect of actual or anticipated breaches of the peace, and then questions
whether they are necessary. In most cases, it is argued, the common law power
is uncertain in its scope, and carries the risk of inappropriate or
disproportionate use. There is also duplication, in that the common law power
is matched by equivalent statutory powers. Given that the statutory powers
are more clearly defined, and may be subject to safeguards not present in
the common law, it is suggested that it would be preferable to abolish the
common law power. This could be done without significantly restricting the
power of the police to deal with behaviour which involves violence, or which
may provoke violence.
Contents
Introduction
In his classic work on the law of public order,
Keeping the Peace,
published in 1967, Professor D.G.T. Williams commented on the power of police
officers to arrest for a breach of the peace committed in their presence,
or reasonably anticipated, as follows:
“There are many doubtful points about this power: what, for instance, is
a ‘breach of the peace’, or what is meant by ‘in their presence’, or what
grounds are sufficient to justify an arrest in anticipation of a
breach”(Williams 1967, p 116).
Similarly, in 1983 the Law Commission in its report on
Offences Relating
to Public Order (which led to the Public Order Act 1986) recommended
that the phrase “breach of the peace” (which was used in the section 5 of
the Public Order Act 1936) should not form part of revised legislation. One
of the reasons was that:
“[T]here is a margin of doubt as to what constitutes a breach of the peace
which we think makes it unacceptable as a major element in any new statutory
offence carrying heavy penalties” (Law Com No 123, para 5.14).
Doubts about the definition cannot be said to be significantly less today,
despite some attempts at clarification by the English Courts, and the endorsement
of the European Court of Human Rights (as noted later in this article).
Nevertheless, the concept of breach of the peace continues to provide a basis
for the exercise of various police powers, including arrest and entry to
premises. Unlike virtually all other police powers, those relating to breaches
of the peace are not governed by statute (contrary to the recommendations
of the Royal Commission on Criminal Procedure 1981) (
Report, paras
3.10, 5.4). The Police and Criminal Evidence Act 1984 left these common law
powers largely untouched, as did the Public Order Act 1986. They have also
survived the extension of statutory powers contained in various pieces of
more recent legislation, such as the Criminal Justice and Public Order Act
1994.
Do we need these powers as part of the modern law of policing? It will be
argued below, that there is a strong case for their abolition, based on
principles which should be of general application in considering the powers
of the police to take actions impinging on individual liberty. It will also
be suggested that this could be done without imposing undue restrictions
on the ability of the police to deal with the types of situations where breach
of the peace powers are in practice used, and in which there may well be
a legitimate need for some control over individual behaviour.
Top | Contents |
Bibliography
Principles of Criticism
What are the principles by which the current situation should be judged?
The first is a general one which is applicable in all areas of law –
the desirability of certainty. It is, however, particularly important where
the police are being given powers which impinge directly on individual freedom
in situations which may not involve the commission of any criminal offence,
that the power should be closely defined. If there is a case for abolition,
therefore, unacceptable uncertainty would be a strong element in the argument.
This requirement is closely related to that which appears in various articles
of the European Convention of Human Rights, to the effect that a restriction
on a Convention right can only be restricted where the restriction is
“prescribed by law”. This question has recently been considered by the European
Court of Human Rights in relation to the concept of “breach of the peace”
in several cases. These decisions, which now of course have additional importance
under the Human Rights Act 1998, will be considered in detail.
The second principle is that any infringement of individual rights and freedoms
should be no more extensive than is necessary, and should be proportionate
to the objectives sought to be achieved. Here again the jurisprudence of
the ECHR is helpful, with its concept of the “pressing social need” and its
reliance on “proportionality” (see,
eg,
Sunday Times v
UK
(1979) 2 EHRR 245;
Dudgeon v
UK (1981) 4 EHRR 149).
Related to the first two principles is that of the undesirability of the
duplication of legal powers. Specifically, if it is possible for the police
to achieve a legitimate objective by another power which is more precisely
defined than the breach of the peace power, then there is no need for the
latter power to remain available. Thus, even if the breach of the peace power
is sufficiently certain and meets a pressing social need, it may still be
unnecessary if there is another power available which will do the job as
well or better.
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Bibliography
Current position
The current position as regards police powers in relation to a breach of
the peace may be stated in the following general terms: A police constable
may take any reasonable action to stop a breach of the peace which is occurring,
or to prevent one which the constable reasonably anticipates will occur in
the near future. “Any reasonable action” may, as we shall see, include arresting
a person, entering premises and stopping people moving from one place to
another.
It should be noted that this article is not concerned with the related power
to “bind over to keep the
peace.”
(1) This power is normally
exercised by a magistrates’ court. The focus here, however, is on
police powers in relation to breaches of the peace. The case for
abolition, if made out, does not therefore rule out the possibility that
it may be necessary to retain, or preferably put into statutory form, the
bind-over power. On the other hand, the ECHR has recently held that some
uses of the bind-over power involve a breach of Convention rights (
Hashman
and Harrup v
UK (2000) 30 EHRR 241). It may be, then, that
this power ought not to survive either. This issue is not, however, pursued
further here.
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Bibliography
Definition of “Breach of the Peace
Preservation of the Queen’s Peace is a duty which is imposed on all citizens.
Police officers have, however, a particular responsibility in this area.
What is meant by “the Queen’s Peace”? It is almost certainly the case, as
has been pointed out by Feldman, that the word “peace” here is used as the
opposite of “war”, rather than as in the phrase “peace and quiet”(Feldman
1993, p787). The obligation to keep the peace is not an obligation to refrain
from annoying the neighbours with loud music or other rowdy behaviour, but
to refrain from fighting or other violent conduct, or behaviour which is
likely to provoke such conduct. This is reflected in the currently generally
accepted definition of a “breach of the peace”, which is contained in the
Court of Appeal decision in
Howell [1982] QB 416. A rather broader
definition put forward by Lord Denning in
R v
Chief Constable of
Devon and Cornwall, ex parte Central Electricity Generating Board [1982]
Q.B. 458 (at 471) to the effect that
the mere physical obstruction
of a person lawfully going about his business could in itself amount to a
breach of the peace, without the need for any violence to have been caused
or to be likely, has not received support in any later cases. The definition
used in
Howell is as follows ([1982] QB 416, 427):
“We are emboldened to say that there is a breach of the peace whenever harm
is actually done or is likely to be done to a person or in his presence his
property or a person is in fear of being so harmed through an assault, an
affray, a riot, unlawful assembly or other disturbance.”
This indicates that these elements are sufficient, but does not preclude
other ways of a breach of the peace occurring. It is clear, however, that
what is required is actual or potential violence, and that mere disturbance
is not enough. A breach of the peace can, nevertheless, apparently be said
to have occurred when the violence is only
potential. Behaviour which
amounts to a “disturbance” (but presumably not necessarily an unlawful one)
can become a “breach of the peace” if its effect is that a violent response
is likely. The prospect of violence may be good grounds for allowing police
intervention, but it is more questionable whether behaviour which merely
raises such an apprehension should be regarded as in itself constituting
a breach of the peace (see,
eg, Williams 1982, p 200). In
Lewis
v
Chief Constable for Manchester (1981)
The Independent,
23 October, for example, Farqhuarson LJ commented that: “The act which puts
someone in fear of violence taking place entitles a police officer...to detain
the actor but it is not a breach of the peace, for the violence has not yet
occurred.” Subsequent acceptance of the
Howell definition means that
this view is now unlikely to be more widely adopted. Behaviour which is likely
to provoke a violent reaction falls within the concept of a breach of the
peace, even if it is not itself violent.
Further uncertainties arise from the fact that the definition contains no
specific requirement of “unlawfulness” in relation to the behaviour concerned,
and that the test of whether a fear of harm exists is entirely factual –
it is not apparently a requirement that the fear be reasonable. These and
other problems have led one commentator to conclude that the definition is
“almost meaningless” (Kerrigan 1997, p 33).
On the other hand, the European Court of Human Rights has found that the
concept
is sufficiently well-defined to satisfy the requirement of
its being “prescribed by law”, as required by, for example, Articles 5.1,
and 10.2 of the European Convention on Human Rights, or “in accordance with
law” as required by Article 8.2 (the two phrases being treated as synonymous).
The first occasion on which the Court considered this was in
McLeod
v
United Kingdom (1999) 27 EHRR 493, a case on the
power of the police to enter premises to prevent an anticipated breach of
the peace. The applicant claimed that the concept of “breach of the peace”
was “insufficiently clear and precise”, and that there was “inconsistent
jurisprudence” as to its meaning (
(1999) 27 EHRR 493, para 38). The Court
noted the definition in
Howell quoted above, and that this had been
preferred by the Divisional Court in
Percy v
Director of Public
Prosecutions [1995] 1 W.L.R. 1382 to Lord Denning’s definition in the
Electricity Board case. It also noted the comments of Simon Brown
LJ in
Nicol and Selvanayagam v
DPP (1996) 160
J.P. 155 to the effect that a person would surely not be held to have caused
a breach of the peace if the violent reaction to their behaviour was
“wholly unreasonable”.
(2) The
conclusion to which it came was that (
(1999) 27 EHRR 493, para 42):
“the concept of breach of the peace has been clarified by the English courts
over the last two decades, to the extent that it is now sufficiently established
that a breach of the peace is committed only when an individual causes harm,
or appears likely to cause harm, to persons or property, or acts in a manner
the natural consequence of which would be to provoke violence in others.”
On this basis, then, the Court felt that the concept was defined with sufficient
precision to enable a person to foresee, “to a degree that is reasonable
in the circumstances”, the consequences of their actions. Accordingly it
did meet the test of being “in accordance with law”.
This is a surprising
conclusion.
(3) Its validity may
be questioned by the fact that there has subsequently needed to be further
domestic case law in the United Kingdom to clarify certain issues surrounding
the power. The Court itself, however, makes it clear that it is not seeking
“absolute certainty, since such certainty might give rise to excessive rigidity,
and the law must be able to keep pace with changing circumstances” (
(1999) 27 EHRR 493, para 41).
Despite this, it is suggested that there is still sufficient vagueness about
the definition to raise the question as to whether it does meet the principle
of “certainty” outlined above. It will be very difficult for a person to
predict with any degree of assurance whether any particular type of behaviour
will be found to justify police action. There is no attempt in any of the
cases to indicate the level of harm which is required to trigger the availability
of the power. Moreover, much will depend on the context of the behaviour,
and the actual or likely reaction of others. “Uncertainty” remains part of
the case for abolition.
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Bibliography
The Powers
The powers which arise once a breach of the peace occurs or is anticipated
will now be considered in the following order: arrest, entry to premises,
restriction on freedom of movement and other powers.
Arrest
This is perhaps the least controversial area, in that if there is to be any
power in relation to preserving the peace it will presumable involve authorising
a police officer to arrest a person who is in the process of committing a
breach of the peace. The current power goes beyond that, however, since the
police office may also arrest someone reasonably believed to be about to
cause a breach of the peace. In
Howell it was confirmed that there
is a power of arrest ([1982] Q.B. 416, 426):
“Where: (1) a breach of the peace is committed in the presence of a person
making the arrest or (2) the arrestor believes that such a breach will be
committed in the immediate future by the person arrested although he has
not yet committed any breach or (3) where a breach has been committed and
it is reasonably believed that a renewal of it is threatened.”
There is, however, no power of arrest once a breach of the peace has ceased
and no renewal is likely.
Recent cases have indicated that the police should be reluctant to use the
arrest power in relation to a person who is acting lawfully. In
Foulkes v
Chief Constable for Merseyside [1998] 3 All ER 705 it was used in relation to a man trying to re-enter his own house in
the course of a family dispute. The Court of Appeal held that this was not
a proper use of the power. In
Redmond-Bate v
DPP [1999] Crim LR 998, this was applied in the case of a “demonstration”
. The appellant
in this case was one of three women preaching from the steps of Wakefield
Cathedral. A crowd of about 100 gathered, some of whom were showing hostility
to the women. A police officer, fearing that a breach of the peace would
occur, asked the women to stop preaching. When they refused he arrested them.
The appellant was charged with, and convicted of, obstructing a police officer
in the execution of his duty (that is, to prevent a breach of the peace).
The Divisional Court, allowing an appeal against conviction, held that the
arrest was unlawful. Even if a breach of the peace had been likely to follow
from the defendant’s behaviour (which the court doubted) her conduct (preaching
about morality, God and the bible) would not have been the cause of it. The
conduct of the women was lawful, and no threat to the peace came from
them.
(4) A similar approach was
taken in
Bibby v
Chief Constable of Essex (2000)
The
Times, 24 April, where the power had been used to arrest a bailiff who
was trying to seize goods to meet a judgment debt. The Court of Appeal, following
the line taken in
Foulkes, and by the Divisional Court in
Redmond-Bate v
DPP [1999] Crim LR 998 set out the following
conditions for the use of the power: (i) there must be the clearest of
circumstances and a sufficiently real and present threat to the peace to
justify the extreme step of depriving of his liberty a citizen who was not
at the time acting unlawfully; (ii) the threat must come from the person
who was to be arrested; (iii) the conduct must clearly interfere with the
rights of others; (iv) the natural consequence of the conduct must be violence
from a third party; (v) that violence must not be wholly unreasonable; (vi)
the conduct of the person arrested must be unreasonable. Applying this to
the case before it the Court of Appeal held that the arrest of the bailiff
had been unlawful.
A further restriction on the power to arrest for a breach of the peace arises
where this may involve the infringement of a Convention right,
eg
under Art 10 (freedom of expression) or Art 11 (freedom of assembly). This
was confirmed by the European Court in
Steel v
United Kingdom
(1999) 28 EHRR 603. There were in fact three different situations considered
by the Court. In the first, the applicant S took part in a protest against
a grouse shoot. She attempted to obstruct and distract those taking part.
At one point she intentionally walked in front of a member of the shoot as
he was lifting his shotgun, thereby preventing him from firing. She was arrested
and detained for a number of hours in order to prevent “any further breach
of the peace”. The second applicant, L took part in a protest against the
building of an extension to a motorway. The group of which she was a part
climbed trees and onto machinery. Eventually while L was standing under the
“bucket” of a JCB digger, she was arrested for conduct “likely to provoke
a disturbance of the peace”. The third, fourth and fifth applicants, N, P
and C, all participated in protest outside a conference centre in London
where a conference concerning “Fighter Helicopters” was taking place. Their
protest took the form of handing out leaflets and holding up banners saying:
“Work for Peace and not War”. They too were arrested for conduct “likely
to provoke a disturbance of the peace”.
Various issues relating to Articles 5 and 6 were raised by all the applicants,
but the only finding in their favour in this area was that the arrest and
detention of N, P and C involved a breach of Article 5(1). This was because
in their case, in contrast to the actions of S and L which might have provoked
others to violence, the protest of N, P and C had been entirely peaceful.
The police were therefore not justified in fearing a breach of the peace,
and the arrests were therefore not lawful under English law or under Article
5(1) of the ECHR.
The Court also considered in some detail the applicants’ claim that their
right to freedom of expression under Article 10 had been infringed. The Court
regarded the actions of S and L as constituting “expression” even though
they took the form of disrupting the activities of others. The question was
therefore, whether the action taken against them, and thereby infringing
their freedom of expression, was legitimate under Article 10(2). The Court
held that the action was “prescribed by law”, following the same line of
argument as in
McLeod (above). The concept of “breach of the peace”
was sufficiently well defined by the case law to meet the standards required
by the Convention, and as had been held in relation to Article 5, the police
had acted within those powers in arresting S and L. There was no doubt that
the arrests were to achieve the legitimate aim under Article 10(2) of preventing
disorder and protecting the rights of others. The only question was therefore
whether the action went beyond what was “necessary in a democratic
society”. Although both the applicants had been detained for some time, and
had in fact both been imprisoned for refusing to be “bound over to keep the
peace”, the Court held that risks of disorder and violence which had been
raised by their behaviour meant that the action taken against them was not
“disproportionate”. In relation to S and L, therefore there was no breach
of Article 10.
As regards N, P and C there was no dispute that their protest was a form
of expression, and that their freedom of expression had been infringed by
the actions of the police. The question was again, whether this could be
justified under Article 10(2). Here the Court held that the action was not
justifiable. Although the action was ostensibly to achieve a legitimate aim,
as with S and L, in this case it was not “prescribed by law” because the
police had exceeded their powers. Nor was the action proportionate to the
aim; it was therefore not “necessary in a democratic society” and the rights
of N, P and C under Article 10 had been unjustifiably infringed.
Having reached these conclusions on Article 10, the Court did not consider
it necessary to deal with the Article 11 right to assembly since it took
the view that this raised the same issues as had already been considered
in relation to Article 10.
The conclusions to be drawn from
Steel and others v
United
Kingdom are that the powers to arrest, etc, on the basis of an apprehended
breach of the peace do not necessarily involve any breach of Convention rights.
As has now been held by the English courts, however, these powers should
only be used where the behaviour of the persons concerned creates a real
risk of provoking violence or disorder. Where the behaviour of those concerned
is lawful and peaceful the mere fact that others may object to it is not
enough to justify an arrest. It seems therefore that English law (as it has
recently developed) and Convention law are very much in unison in this area.
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Bibliography
Entry to Premises
The leading case in this area was until recently
Thomas v
Sawkins [1935] 2 K.B. 249, but it was a decision not without difficulty.
The case arose out of a meeting on private premises to which the public were
invited. The purpose of the meeting was to protest against the Incitement
to Disaffection Bill (subsequently the Incitement to Disaffection Act 1934).
The police anticipated that seditious and inflammatory speeches might be
made, and that trouble might
ensue.
(5) Two police officers were
present at the meeting, despite the fact that it had been made clear by the
organisers that their presence was unwelcome. A steward attempted to eject
one of the officers and was prevented from doing so by the other, Sergeant
Sawkins. A private prosecution for assault was brought against Sergeant Sawkins.
The magistrates acquitted, and the Divisional Court was called on to decide
whether the police officers’ presence at the meeting was lawful, or a trespass.
The court unanimously decided that it was lawful. In so doing, they held
that the police were entitled to enter premises when they reasonably anticipated
that a breach of the peace was going to take place. Previously it had been
widely accepted (though not confirmed by any authority) that the police could
only enter premises once a breach of the peace was taking place (See,
eg, Goodhart 1936). The view put forward in
Thomas v
Sawkins, though novel at the time, has not been seriously challenged
in any later case.
A point of uncertainty, however, arose from the fact that the meeting took
place on private premises. Did the power of entry recognised in the case
only apply to meetings to which the public were invited, or are the police
entitled to enter any premises on which a breach of the peace is occurring
or is likely to occur? The judges in
Thomas v
Sawkins appeared
to attach importance to the fact that they were dealing with a public meeting,
but the general law of trespass makes no distinction of this kind. If those
attending a public meeting on private premises do so on the basis of a licence
from the occupier, then that licence may be withdrawn, from the police as
much as anyone else. If the police have the power to override the withdrawal
of a licence, then there seems no reason why that power should not exist
on all occasions. The result is that
Thomas v
Sawkins had the
effect of giving the police a power to enter any premises to prevent or deal
with a breach of the peace. This has been confirmed by more recent case law.
As regards entry to deal with a breach of the peace which is in progress,
the relevant authority is
Lamb v
DPP [1990] Crim. L.R.
58.
(6) A woman wished to remover
some property from premises where she had previously been living with the
occupier. Fearing that there would be problems in getting access to her property
she arranged for a constable to accompany her. The occupier allowed them
to enter the premises, but then told the police officer to leave. This, of
course, terminated the officer’s licence to be on the premises, and his
obligation was then to leave with all reasonable speed (
Davis v
Lisle [1936] 2 K.B. 434). Before he could do so, however, the occupier
started to attack the woman. The police officer intervened. It was held that
he was acting in the execution of his duty in so doing. Although his licence
had been terminated, he was entitled to remain to deal with the breach of
the peace which had occurred.
As regards
anticipated breaches of the peace the leading authority
is
McLeod v
Commissioner of Police for the Metropolis [1994] 4 All ER 553.
(7) The case arose
out of a divorce, and like
Lamb involved the recovery of property.
As part of the divorce settlement the wife gained ownership of the matrimonial
home, but some of the husband’s property remained on the premises. Mrs McLeod
seemed reluctant to return this, despite the fact that a court order had
been obtained specifying the items which she was to hand over. Eventually
the court gave her seven days to deliver the property, under threat of being
committed to prison for 21 days. Immediately after this hearing Mr McLeod
suggested that he should collect the property at 4pm on a particular day.
He mistakenly thought that Mrs McLeod had agreed to this arrangement. On
the day in question Mr McLeod arrived at the house together with his brother
and sister and a clerk from his solicitors. The solicitors, fearing that
there might be problems, had arranged for there to be a police presence,
and two police officers arrived at the house at the same time. It seems that
the officers thought incorrectly that the court order (which they had not
seen) entitled the husband to take possession of his property, rather than
requiring the wife to deliver it to him. Mrs McLeod was not at the house
when the party arrived, and the door was opened by her mother. She said that
she knew of no arrangement for the collection of Mr McLeod’s goods. However,
on being told by the police that they had a court order to execute, she allowed
all those present to enter the house. It was held in subsequent county court
proceedings that she had not by this action given any licence to enter. The
removal of Mr McLeod’s property proceeded and was almost completed when Mrs
McLeod arrived. She objected strongly to what was happening, but was persuaded
by one of the police officers to allow Mr McLeod to leave with the items
which he had taken, with any further dispute to be sorted out between their
solicitors.
Mrs McLeod subsequently took action for trespass against the police officers.
This action failed on the basis that the police officers had reasonable grounds
to anticipate a breach of the peace, and this justified their entry at common
law.
(8) The judge commented that
“If Mrs McLeod had been there when her ex-husband’s party arrived, I have
no doubt that the police constables’ role as peace-keepers would have been
required” (
(1999) 27 EHRR 493, para 18). On that basis there was no trespass
by the police officers. On appeal, the Court of Appeal took a similar view
([1999] 4 All E.R. 553). Neill LJ, who gave the main judgment, noted that
section 17(5) of the Police and Criminal Evidence Act 1984 had abolished
the common law rules under which there was a power of a police officer to
enter premises, but that this was subject to section 17(6) which states that
“Nothing in subsection (5) affects any power of entry to deal with or prevent
a breach of the peace”.
He concluded that Parliament had thereby recognised that “there is a power
to enter premises to prevent a breach of the peace as a form of preventive
justice.” While this may be the implication of section 17(6), the statutory
provision cannot be said to be definitive as to the extent, or even the
existence, of the common law power. More particularly it says nothing, as
Neill LJ recognised, about the circumstances in which the power arises or
the premises in relation to which it may be used. On the latter point, Neill
LJ could see “no satisfactory basis for restricting [the] power to particular
classes of premises....If the police reasonably believe that a breach of
the peace is likely to take place on private premises, they have power to
enter those premises to prevent it.” The only limitations are that the
apprehension of a breach must relate to the near future and that, particularly
where the power involves entering premises against the wishes of the owner
or occupier it should be used with “great care and discretion” and only where
there is a “real and imminent” risk of a breach of the peace. Applying this
approach to the case before it, the Court of Appeal upheld the decision of
the High Court.
Leave to appeal to the House of Lords was refused, so Mrs McLeod took her
case to Strasbourg, relying on Article 8 of the Convention and alleging a
breach of her right to respect for her private life and
home.
(9) The Commission was of
the view that there was no breach, but the Court upheld her claim.
There was no dispute that the police entry into Mrs McLeod’s home amounted
to interference with her right to respect for her private life and home,
so that Article 8 was engaged. The question was whether such interference
was justifiable on the basis of paragraph 2 of the Article, which states:
“There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary
in a democratic society in the interests of national security, public safety
or the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others.”
The first issue was whether the power to enter in relation to breaches of
the peace was “in accordance with law”. As we have already seen, the Court
felt that the concept of “breach of the peace” was sufficiently recognised
and defined by English law to meet this criterion. As to the power to enter
premises to deal with an actual or apprehended breach of the peace the Court
took note of
Thomas v
Sawkins,
McGowan v
Chief Constable
of Kingston upon Hull [1968] Crim. L.R. 34, and section 17(6) of PACE
1984. It also noted that the interpretation of domestic law was primarily
for the national authorities, and that in this case the issues had been carefully
considered by the Court of Appeal. In the light of all this, it held that
the power of entry was sufficiently defined and predictable to meet the standard
of being “in accordance with the law”. As with the conclusion on “breach
of the peace” itself, this is surprising given that many would have said
that the law was uncertain until the decision in
McLeod
itself.
(10)
The second requirement needed to justify the interference is that it was
to achieve a legitimate aim. The Court accepted here that the police had
entered with a view to the “prevention of disorder or crime”, and that this
was therefore legitimate.
The final requirement is that the exercise of the power which led to the
interference was “necessary in a democratic society”. European Court case
law has established that this means that the interference “corresponds to
a pressing social need” and “is proportionate to the legitimate aim
pursued”. The Commission had held that this requirement was satisfied, but
the Court took a different view. It did not suggest that the power to enter
premises to deal with an actual or apprehended breach of the peace in itself
exceeded what was necessary. It held, however, that in the particular
circumstances, the police should not have entered Mrs McLeod’s house. There
were two reasons for this. First, the police had not checked whether the
court order did actually entitle Mr McLeod to enter the house and take his
property. If they had done so, they would have found that it did not. Secondly,
once it became clear that Mrs McLeod was not in the house, they should have
realised “that there was little or no risk of disorder or crime occurring”.
For these reasons the Court found that the actions of the police officers
were disproportionate to the legitimate aim pursued, and therefore involved
a violation of Article 8 of the Convention.
The effect of
McLeod is therefore to confirm that the power to enter
premises (of any kind) to deal with an actual or anticipated breach of the
peace does not automatically involve any breach of the Convention. The police
need to be careful, however, to ensure that the use of the power is really
necessary in the particular circumstances.
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Bibliography
Restrictions on Freedom of Movement
There are two cases which suggest that the police do have the power to stop
people from going in a particular direction or to compel them to move from
a particular location. Both of them need to be reconsidered, however, in
the light of more recent cases on arrest powers, discussed earlier.
Taking the two cases chronologically, the first to be considered is
Duncan v
Jones [1936] 1 KB 218. This case suggests that the
police are entitled to require a person to move from one place to another
in order to prevent a breach of the peace. Like
Thomas v
Sawkins,
Duncan v
Jones arose out of a meeting held
to protest against the Incitement to Disaffection Bill. A notice had been
posted announcing that the meeting would be held outside an unemployed training
centre, and that one of the speakers would be Katherine Duncan. Following
a meeting held the previous year, and also addressed by Mrs Duncan, there
had been a disturbance in the training centre. On this occasion when Mrs
Duncan was about to climb on to a box which had been placed in the road opposite
the entrance to the training centre, she was told by a senior police officer
that she could not hold her meeting there, but that she could hold it in
another street, some 175 yards away. Mrs Duncan refused, and indicated that
she was going to proceed with her speech. At this point she was arrested
by another officer who was also present, and was subsequently charged with
obstructing a police officer in the execution of his duty. She was convicted,
and appealed to the Quarter Sessions, where it was held, inter alia, that
the police officers had reasonably apprehended a breach of the peace if the
meeting went ahead in that location, and were therefore acting in the execution
of their duty in taking steps to prevent it. On a further appeal by way of
case stated to the Divisional Court the conviction was upheld. The court
took the view that the police were entitled to act to prevent a breach of
the peace. For our purposes the most pertinent statement of the position
was by Humphrey J, who said:
“It does not require authority to emphasise the statement that it is the
duty of a police officer to prevent apprehended breaches of the peace. Here
it is found that the respondent [ie the police officer] reasonably apprehended
a breach of the peace. It then, as is rightly expressed in the case, became
his duty to prevent anything which in his view would cause that breach of
the peace. While he was taking steps so to do he was wilfully obstructed
by the appellant.”
The “steps” which the police officer was taking in this case were to require
Mrs Duncan to move the location of her meeting. Requiring someone to move
is therefore a legitimate action if taken to prevent an anticipated breach
of the peace. The converse situation of requiring a person
not to
go in a particular direction was dealt with in
Moss v
McLachlan
[1985] IRLR 76.
This case arose out of the 1984 miners’ strike. One of the features of this
industrial action was that groups of striking miners moved from one pit to
another as needed to reinforce picketing. This resulted in the police regularly
placing patrols near motorway exits on the M1 to try to prevent these
“flying pickets” from militant areas in Yorkshire joining picket lines at
more moderate pits in Nottinghamshire. On the occasion which gave rise to
this case, the police were at junction 27 of the M1, which was near several
pits (at distances from one-and-a-half to five miles). They stopped a group
of 25 cars containing 60 to 80 men. From badges and car stickers the men
were clearly identifiable as striking miners. Some of the men refused to
obey an instruction from a police officer to turn back from the pits, and
were arrested. They were convicted by the magistrates of wilfully obstructing
a police office in the execution of his duty. On appeal to the Divisional
Court, the convictions were upheld. The essence of the Court’s decision appears
in the following passage from Skinner J:
“If the police feared that a convoy of cars travelling towards a working
coal field bearing banners and broadcasting, by sight or sound, hostility
or threats towards working miners might cause a violent episode, they would
be justified in halting the convoy to enquire into its destination and purpose.
If, on stopping the vehicles, the police were satisfied that there was a
real possibility of the occupants causing a breach of the peace one-and-a-half
miles away, a journey of less than five minutes by car, then in our judgment
it would be their duty to prevent the convoy from proceeding further and
they have the power to do so.”([1985] IRLR 76 at p 79)
On the basis of this decision, therefore, the police have the power to instruct
someone who is otherwise acting lawfully not to go in a particular direction
if they reasonably believe that the person’s presence at a particular place
will contribute to a breach of the peace in the relatively near future.
Neither
Moss v
McLachlan nor
Duncan v
Jones,
however, is easy to reconcile with the more recent decisions on arrest for
breach of the peace, and in particular
Redmond-Bate. It was not suggested
that Mrs Duncan would have been acting unlawfully in making her speech, nor
were the striking miners acting unlawfully in travelling about the country
in cars. It may be that Mrs Duncan’s behaviour in trying to proceed with
her speech could be said to have been calculated to cause a breach of the
peace (and therefore to amount to a breach of the peace, justifying an arrest),
but it is hard to distinguish from the behaviour of the appellants in
Redmond-Bate. It is even more difficult to see that the appellants
in
Moss v
McLachlan had, at the time when they were stopped
by the police from proceeding, done anything which would amount to a breach
of the peace.
The case law is therefore confused. It may be that the influence of
Steel v
UK via the Human Rights Act 1998 will in due course
give rise to greater clarification, but at the moment this is another area
of uncertainty. It seems that the police may control a person’s movement
on the grounds that to do so may prevent a breach of the peace, but the precise
circumstances of when this power will arise, and its limits, are still open
to debate.
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Bibliography
Other Actions
It will be recalled that at the start of this article the powers of the police
were stated to
include “
any reasonable action to stop a breach of the peace which
is occurring, or to prevent one which the constable reasonably anticipates
will occur in the near future”. The generality of this statement is justified
by the fact that there do not seem to be any limits to the actions which
an officer may take. This is demonstrated by the nineteenth century Irish
case of
Humphries v
Connor (1864) 17 ICLR 1. Anne Humphries
was walking through the town of Swanlinbar wearing an orange lily, a party
emblem. This caused a hostile reaction from other members of the public.
A police officer asked her to remove the lily, and when she refused, removed
it himself. Humphries sued for assault. She claimed that wearing the lily
was a perfectly lawful act. The defence was that removing the lily was necessary
in order to protect Humphries and to prevent a breach of the peace. The Court
of Queen’s Bench in Ireland held that, on the basis that the facts alleged
were true, there would be a good defence to the action. As Hayes J put it:
“When a constable is called upon to preserve the peace, I know no better
mode of doing so than that of removing what he sees to be a provocation to
the breach of the peace; and, when a person deliberately refuses to acquiesce
in such removal, after warning to do so, I think the constable is authorised
to do everything necessary and proper to enforce it.”
Whether in fact removing the lily without the consent of the plaintiff was
in this case necessary to preserve the peace was a matter for the tribunal
of fact, but assuming that it was, then the defence was good.
A similar conclusion was arrived at in another Irish case,
O’Kelly v
Harvey (1883) 15 Cox CC 435, where the Court of Appeal
held that it was lawful for a constable to take action, short of arrest,
physically to disperse a meeting if a breach of the peace was anticipated.
These decisions indicate that there are no particular limits on what a police
officer may do to interfere with an individual’s liberty, provided what is
done can be said to be “necessary”. Both cases are, however, open to the
objection that they should be reconsidered in the light of the approach in
Redmond-Bate, suggesting that in such situations the police
should act against those who are reacting in a hostile manner, rather than
against the person whose lawful actions have provoked this response. Indeed,
one of the judges in
Humphries v
Connor expressed just such
doubts. Fitzgerald J, while bowing to the greater experience of his
fellow-judges, and therefore not dissenting from their conclusions, confessed
that:
“The doubt which I have is, whether a constable is entitled to interfere
with one who is not about to commit a breach of the peace, or to do, or join
in any illegal act, but who is likely to be made an object of insult or injury
by other persons who are about to break the Queen’s Peace...”
The difficulty is where to draw the line. The danger is that of: “making,
not the law of the land but the law of the mob supreme, and recognising in
constables a power of interference with the rights of the Queen’s subjects,
which if carried into effect to the full extent of the principle, might be
accompanied by constitutional danger”.
This has a strong resonance with the approach taken in
Redmond-Bate.
It may be, therefore, that we should now view these Irish authorities with
suspicion. They have not as yet been overruled, however, and the fact that
they are still potentially good law simply adds to the uncertainty of the
current situation. Nor is the Human Rights Act likely to provide assistance,
since applying the ECHR case law will only lead to decisions as to whether
any particular use of the police’s power was justified, and will not affect
the general principle that the police can take whatever action is necessary
to preserve the peace.
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Bibliography
Alternatives to the breach of the peace power
The actions which can be taken to deal with an actual or anticipated breach
of the peace have been shown to be wide-ranging and potentially limitless.
What are the alternatives? If it were decided to abolish the common law power,
would not this leave an extensive gap which the police would find it hard
to fill? Not necessarily. There is a range of statutory based powers fitting
each of the categories noted above.
Powers of arrest
The most obvious statutory powers of arrest which mirror those under the
common law are those contained in sections 4, 4A and 5 of the Public Order
Act 1986. These sections deal with behaviour which may cause or provoke violence,
or cause harassment, alarm or distress. There are clear overlaps with the
breach of the peace power, as will be seen from the following more detailed
discussion of these sections.
Section 4 – Fear or provocation of violence
By virtue of section 4(3) a constable may arrest without warrant anyone the
constable reasonably suspects is committing an offence under the section.
To commit an offence, the person concerned must be using, or have used,
threatening, abusive or insulting words or behaviour towards another person.
The behaviour must either be intended or be likely to cause the other person
to believe that immediate unlawful violence will follow or to provoke such
violence. The similarity between these consequences and the
Howell
definition of breach of the peace is obvious. The main difference lies in
the fact that the behaviour of the person arrested under this section must
have been “threatening, abusive or insulting” (these words to be given their
natural meaning:
Brutus v
Cozens [1972] 2 All E.R. 1297,
HL)
(11) There is no such requirement
in relation to breach of the peace. However, in many, if not the majority,
of cases where a breach of the peace is caused, the behaviour is likely to
have been of this kind.
A further distinction arises from the places where an offence under section
4 can be committed. Although it can be committed in a public or a private
place, the offence cannot be committed in a “dwelling”
(as defined
in section 8) where the other person is also inside a dwelling. Behaviour
at private meeting in a hall would be covered (as in
Thomas v
Sawkins) but not a purely domestic dispute (as in
Lamb).
To that extent the offence, and therefore the arrest power, is narrower in
scope than “breach of the peace”.
Section 4A and 5
These two sections are designed to deal with behaviour which causes, or is
likely to cause, “harassment, alarm or distress” to someone present. In relation
to section 4 the behaviour must actually have such an effect, and have been
intended to do so. Under section 5 it is sufficient if the effect is
“likely”. In both cases the behaviour must either be “threatening, abusive
or insulting”, or “disorderly”. The word “disorderly” is not further defined,
but the White Paper which preceded the 1986 Act suggested that the following
behaviour needed to be covered (White Paper 1985, para 3.22):
-
hooligans on housing estates causing disturbances in the common parts of
flats, blockading entrances, throwing things down the stairs, banging on
doors, peering in at windows, and knocking over dustbins;
-
groups of youths persistently shouting abuse and obscenities or pestering
people waiting to catch public transport or to enter a hall or cinema;
-
someone turning out the lights in a crowded dance hall, in a way likely to
cause panic;
-
rowdy behaviour in the streets late at night which alarms local residents.
This list clearly goes far beyond what is covered by “breach of the peace”,
but it is interesting to compare the last item with the facts of
Howell. Howell was an apparently noisy participant in a street party
which had continued into the early hours of the morning. There were complaints
by neighbours and the police arrived. Howell and others were told to leave
or they would be arrested for breach of the peace. While moving off slowly
Howell stopped to swear at one of the police officers. He was told that if
he continued to swear he would be arrested for “disturbing public order”.
Howell continued to swear, whereupon the police officer attempted to arrest
him. Howell struck the police officer in the face. He was subsequently convicted
of assault occasioning actual bodily harm and the Court of Appeal rejected
his claim that the initial attempt to arrest had been unlawful. It was legitimate
as an arrest to prevent a breach of the peace.
It seems clear that this is exactly the sort of situation which could now
be covered by section 4A or 5 of the Public Order Act 1986. The parallel
is even closer if the arrest power under section 5 is considered. This only
arises where a police officer has told a person to desist from disorderly
conduct and further disorderly conduct has then followed. This is almost
precisely what happened in
Howell.
The arrest power under section 4A, which applies where the behaviour is
intended to cause harassment, alarm and distress, and does actually
do so to a particular person, can be exercised without the need for a warning
(s 4A(4)).
(12)
The offences under both sections 4A and 5 are subject to the same limitation
as applies to section 4; that is, they cannot be committed where the behaviour
and its effect are confined to a “dwelling”. Subject to this limitation,
however, the two sections with their associated arrest powers would seem
capable of covering many situations in relation which the breach of the peace
power can be used.
A further statutory arrest power which is also relevant in this context is
that under section 25 of PACE 1984. Whereas section 24 of PACE gives powers
of arrest in relation to certain categories of offence (“arrestable
offences”), generally those of a more serious nature, section 25 allows a
police officer to arrest a person who is suspected of having committed or
attempted, or being in the process of committing or attempting,
any
non-arrestable offence, provided that one of a number of “general arrest
conditions” is satisfied. The relevant conditions for our purposes are:
“(d) that the constable has reasonable grounds for believing that arrest
is necessary to prevent the relevant person -
(i) causing physical damage to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency; or
(v) causing an unlawful obstruction of the highway.”
These conditions are similar to many of the situations where the breach of
the peace arrest power might well be used. Provided that the person concerned
is reasonably suspected of being involved in the commission of any non-arrestable
offence, no matter how minor, the police will have the power to arrest under
section 25. The breach of the peace power will therefore be superfluous in
many situations.
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Bibliography
Powers of Entry
Police powers of entry to private premises without warrant are to be found
in PACE. Sections 18 and 32 are concerned with powers to enter and search
premises following an arrest. More relevant to the issues in this paper are
the powers given by section 17, most of which relate to entry in order to
arrest a person. There are three which merit closer consideration, namely
those contained in section 17(1)(b), section 17(1)(c)(iii) and section 17(1)(e).
In the first two cases the police officer must have reasonable grounds to
believe that the person to be arrested is on the premises (s 17(2)(a)); the
third power need not relate to an arrest.
Section 17(1)(b) – Arrestable offence
This section empowers a police officer to enter and search any premises for
the purpose of arresting a person for an arrestable offence. The power extends
to private premises, including dwellings. If, for example, there is reasonable
suspicion that an offence under section 47 of the Offences Against the Person
Act 1861 (assault occasioning actual bodily harm) is taking place then a
police officer can enter to arrest the perpetrator. Similarly, if the offence
is that of “violent disorder” under section 2 of the Public Order Act 1986.
This offence arises where three or more people are using or threatening unlawful
violence, and their behaviour is such that would cause “a person of reasonable
firmness...to fear for his personal
safety.”
(13) Both these offences
carry a maximum sentence on indictment of 5 years imprisonment, and are therefore
“arrestable” within section 24 of PACE. Both also overlap with behaviour
which might be categorised as “causing a breach of the peace”.
Section 17(1)(c)(iii) – Fear or provocation of violence
This section gives a specific power of entry in relation to offences under
section 4 of the Public Order Act 1986, which has been discussed above in
connection with arrest powers. It is not clear why this particular offence
has been singled out. No such power is given in relation to section 4A or
section 5 of the Public Order Act. More surprisingly, no power exists in
relation to the offence of “affray” contained in section 3 of the Public
Order Act 1986. This offence falls in seriousness between “violent
disorder” (section 2) and “fear or provocation of violence” (section 4),
but only carries a maximum penalty of three years, and so is not
“arrestable” under section 24 of PACE (though the section itself provides
a power of arrest).
The power of entry in relation to an offence under section 4 will be subject
to the limitation that the offence cannot be committed in a
“dwelling”. If a police officer suspects that a person who has committed
a section 4 offence elsewhere has entered a private house, the officer can
enter the house in order to make an arrest; if, however, the suspicion is
that behaviour which would otherwise constitute the offence is taking place
on domestic premises, no power of entry to those premises will arise.
Section 17(1)(e) – Saving life or limb
This section empowers a police officer to enter any premises for the purpose
of saving life or limb, or preventing serious damage to property. In part
it replicates the common law power, no longer available to police officers
(by virtue of section 17(5) of PACE 1984), recognised in
Handcock
v
Baker (1800) 2 Bos. & P. 260. It was held in this case that
where a woman feared that her husband was about to murder her and she called
out for assistance, her potential rescuers were justified in making a forcible
entry to the premises to rescue her. Section 17(1)(e) would clearly justify
a police officer's entry in such
circumstances,
(14) but the section
goes further, and creates a more general power of entry of
“necessity”. To the extent that behaviour which constitutes a breach of the
peace involves actual or likely violence to persons or property, the power
under section 17(1)(e) of PACE may provide a basis for entering to control
it. But the phrases “life and limb” and “serious damage” suggest that minor
breaches of the peace might not reach the threshold for the power to arise.
Overall, therefore, the powers to enter premises are quite extensive. The
one significant gap which might exist if the breach of the peace powers were
abolished, is that there would be no power to enter private premises (and
in particular dwellings) as a preventive measure, that is before any behaviour
equivalent to a breach of the peace has taken place. Whether this gap is
one which needs filling will be considered further in the context of the
overall conclusions.
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Bibliography
Control over Freedom of Movement
A power similar to that used in
Moss v
McLachlan was subsequently
enacted by the Criminal Justice and Public Order Act 1994. This inserted
new provisions, namely sections 14A to 14C, into the Public Order Act 1986
to deal with “trespassory assemblies”. Section 14A empowers the police to
obtain from a local authority a ban on an assembly of more than 20 people
taking place on land to which the public has no, or limited, rights of access
(including a highway). The assembly must be held without the permission of
the occupier, or be likely to be conducted in a way which exceeds the occupier's
permission. The ground for seeking such a ban is that there is reason to
believe that the assembly (s
14(a)(1)(b):
(15)
(i) in serious disruption to the life of the community, or
(ii) where the land, or a building or monument on it, is of historical,
architectural, archaeological or scientific importance, in significant damage
to the land, building or monument...”
The ban must be limited in time (not more than four days), and in area (not
more than “an area represented by a circle of a radius of five miles from
a specified centre” – s 14A(6)).
Once a ban is in place, section 14C gives the police the power to control
freedom of movement. Within the area covered by the ban, it empowers a constable
in uniform to stop any person reasonably believed to be on the way to such
an assembly, and direct the person not to proceed in the direction of the
assembly. Failure to comply with the direction constitutes an offence for
which the person may be arrested (s 14A(3),(4)).
It seems clear that this power, if it had been available, could have been
used in relation to the picketing during the 1984 miners' strike. More recently
the police could probably, if they had chosen to do so, have employed it
in relation to the blockades of oil refineries, etc, which occurred in September
2000. The test of “serious disruption to the community” would certainly have
been satisfied in both cases. In the only reported case on section 14A, however,
DPP v
Jones [1999] 2 All ER 257, the House of Lords held
that the power under section 14A had been inappropriately applied to an assembly
at Stonehenge, since it had not in fact been a “trespassory” assembly.
The power to control freedom of movement under section 14C of the Public
Order Act 1986 is much more restricted than the common law power recognised
in
Moss v
McLachlan. This may, however, be regarded as an
advantage, and sections 14A-C certainly have the potential to deal with the
more serious situations which might be regarded as falling within the scope
of the common law power.
Turning to the situation in
Duncan v
Jones, and the power of
the police officer to require a person to move the location of a meeting,
there is no direct equivalent in the statutes. But given the powers of arrest
that exist if disorder results, it is arguable that the armoury of the police
is sufficiently full without needing to replicate this particular power.
There is also the argument from the more recent breach of the peace cases
that the police should focus more on those whose behaviour disrupts a lawful
speaker, rather than the speaker him or herself.
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Bibliography
Other Powers
There is no general “catch-all” power in the statutes to match the common
law, which allows the police officer to do “anything reasonable” to prevent
or control a breach of the peace. Removing the lily, as in
Humphries
v
Connor would not be justifiable under any statutory provision. The
police might, however, be able to arrest under sections 4, 4A or 5, of the
Public Order Act, particularly if the wearing of a particular emblem could
be said to be “insulting” or “distressing” to others present, and was intended
to be so. In addition, as has already been noted, the concept of disorderly
behaviour under section 5 of the Public Order Act has the potential to be
applied widely. It is suggested, therefore, that the police have other powers
which would mean that any gap arising from the abolition of the common law
power would not be serious.
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Bibliography
Conclusions
It is now time to consider whether the case for abolition of the common law
power to deal with breaches of the peace can be said to be made out. In
discussing this issue the “critical principles” outlined at the start of
this paper will be used.
Certainty
There are two aspects to the “certainty” issue. One is whether the concept
of “breach of the peace” is sufficiently well-defined to form the basis of
legitimate interference with an individual's freedom. The second is whether
the circumstances in which the powers based on an actual or apprehended breach
of the peace are so defined.
It has been argued above that there is uncertainty surrounding what is meant
by “breach of the peace”. It must be acknowledged, however, that recent case
law, starting with
Howell, has tended towards some clarification.
Indeed, it might be said that the acceptance by the European Court of Human
Rights in
McLeod v
UK and
Steel v
UK that the
concept met the level of certainty required for Articles 5, 8 and 10, means
that this point is no longer in issue. The European Court has said that
“breach of the peace” is sufficiently well-defined for the purposes of the
European Convention, and the point therefore no longer needs to be considered
by the English courts. There is some force in this. There are, however, some
points which the
Howell definition does not answer completely. First,
the court refers to “harm” to persons or property, but it is not made explicit
what level of harm is sufficient to satisfy the test. Is it at the level
of “actual bodily harm” in the case of harm to the person, or will something
less be sufficient? In the case of damage to property, again is the most
minor level of harm sufficient or is there a threshold which must be reached
before a “breach of the peace occurs”? It would therefore be open to the
English courts, notwithstanding the views expressed by the European court,
to adopt a stricter line, and hold that for the purposes of the Human Rights
Act 1998 the concept of breach of the peace is too vague to form the basis
of intrusive police powers.
The second level of uncertainty in relation to the definition of breach of
the peace is what behaviour short of such harm will amount to a breach? The
behaviour must have the effect of being likely to provoke the causing of
harm, but no other limits seem to be set. In
Howell itself the court
ruled that a breach of the peace would occur where a person was put in fear
of being harmed through “an affray, riot, unlawful assembly or
other
disturbance”( [1982] Q.B. 416, 427 - emphasis added). The use of the
final phrase leaves the issue wide open. The court seemed to be prepared
to accept that the “shouting and swearing” of the defendant could justify
an arrest if it was likely to provoke violence; but it is not clear whether
this is on the basis that the shouting and swearing itself constituted a
breach of the peace (as being behaviour likely to put a person in fear of
harm) or because there is a power of arrest in relation to behaviour which
may cause a breach of the peace. The answer may have little importance in
practice, but the uncertainty contributes to the general lack of clarity
surrounding the
definition.
(16)
There is also uncertainty as to the extent of the powers which attach to
a breach of the peace. There is no doubt that it allows a constable to arrest,
and to enter premises. It seems that it also can be used to justify restrictions
on freedom of movement. But the statements of the powers are generally put
in broad terms, allowing the police to do “what is necessary” to stop or
prevent a breach of the peace. This apparently includes actions, falling
short of arrest, which would otherwise constitute an assault – such
as removing an emblem from a person's clothing (
Humphries v
Connor), or requiring them to move from one place to another
(
Duncan v
Jones). But in truth, it is left to the discretion
of the police officer to decide what is appropriate. While flexibility in
dealing with situations as they arise may well be desirable, too wide a
discretion is undesirable, and increases the uncertainty of the position
of the individual against whom the powers are used. Is he or she obliged
to do
anything a police officer tells him or her to do, if it is done
in the name of the prevention of a breach of the peace (whatever that is),
which the officer can reasonably be said to have anticipated?
In the light of the above, it is suggested that, although the concept of
the breach of the peace has greater clarity than it did when Professor Williams
was writing in 1967, it is arguable that there is still sufficient vagueness
about it that “uncertainty” remains a legitimate part of any argument for
abolition.
Duplication
In the majority of situations in which a police officer might wish to use
the breach of the peace power, there is an equivalent statutory power available.
This is particularly true of arrest, where there is a range of different
powers available under PACE 1984 and the Public Order Act 1986. There are,
however, some areas in which there is a gap. First, in relation to private
premises (and particularly residential premises), both the power to enter,
and the power of arrest following entry are more limited. These two issues
are interrelated, but they will be considered in turn.
As regards entry to the premises, although there is a power to enter any
premises to arrest for an arrestable offence, the offences which deal with
behaviour most closely analogous to that falling to be dealt with as a breach
of the peace – that is, the offences under sections 4, 4A and 5 of the
Public Order Act 1986 - are not “arrestable”. There is a specific, limited,
power of entry to arrest for a section 4 offence (PACE 1984, s 17(10)(c)(iii)),
but even this is not available in relation to a “dwelling”. Moreover, even
if behaviour falling into this category could be brought within section 17(1)(e)
of PACE (“saving life and limb” or preventing serious damage to property),
there is no power equivalent to the preventive power recognised in
Thomas v
Sawkins and
McLeod v
Commissioner of Police
for the Metropolis. The statutory powers rely on an offence being, or
having been, committed, or on the need for instantaneous action (ie under
s 17(1)(e)). There is no power to enter premises in order to ensure that
an offence does not take place.
The fact that the offences under sections 4, 4A and 5 of the Public Order
Act cannot be committed on private premises used as a dwelling means that
no power of arrest exists in relation to behaviour on such premises which
would otherwise be covered by these sections. If, however, the behaviour
is serious enough to amount to an assault under section 47 of the OAPA 1961
there will be a power of arrest, even in a dwelling. There is also one reported
example of an arrest for the offence of affray, under section 2 of the Public
Order Act 1986, taking place as a consequence of a domestic dispute. In
R v
Davison [1992] Crim. L.R. 31 the events took place in the
accused's flat. There had been a domestic incident, as a result of which
the police had been called. One of the police officers was threatened by
the accused, who was holding a kitchen knife. He waved the knife from side
to side, saying “I’ll have you”. He was then arrested and charged with affray,
and it was held that he did have a case to answer. Although this situation
is perhaps an unusual one for a charge of affray, which is more commonly
used in relation to fighting in public, it indicates that there are possibilities
of using other sections of the Public Order Act 1986 to cover ground that
might otherwise be dealt with as a breach of the peace.
A further gap may be said to exist in relation to the “catch-all” aspect
of the breach of the peace powers. The power to take “any reasonable
action” to prevent a breach of the peace has no equivalent in the statutes.
The closest to it is perhaps the powers arising under section 5 of the Public
Order Act which are available in relation to any “disorderly” conduct (other
than in a dwelling). Since disorderly conduct is not confined, this confers
a considerable discretion on the individual police officer, provided that
it the behaviour is likely to cause someone present harassment alarm or distress.
It cannot be said, however, that the discretion is as broad as that which
exists under the common law, as exemplified by
Humphries v
Connor.
The police would, therefore, have less extensive powers if the breach of
the peace power was simply abolished. Do these limitations matter? This brings
us to the final critical principle which is whether there is a “pressing
social need” for the police to have these powers. The focus here will be
on whether there is a such a need for the powers which would disappear as
a result of abolition.
Pressing Social Need
There is, unfortunately, no statistical evidence available of the extent
to which the police use their powers to control breaches of the peace. It
would be surprising, however, if in the light of the range and flexibility
of the powers they were not used extensively. As we have seen, in the event
of abolition, there are in many situations equivalent statutory powers which
could be used. But in the areas where there is no such power, would abolition
of the common law power leave unacceptable gaps in the police’s armoury?
Looking first at the disappearance of the power to enter premises in anticipation
of problems which have not yet arisen, is there a need for this power? It
must be recognised that it is of relatively recent development. Until 1935
(and the decision in
Thomas v
Sawkins) it was generally
thought that the power was simply to enter premises once a breach of the
peace had occurred; even then it was not clear that the power applied to
private premises other than when they were being used for a public meeting.
It was only six years ago that this was finally held to be the case
(
McLeod v
Commissioner of Police for the Metropolis [1994] 4 All ER 553). Even then, in relation to the one reported instance of reliance
on this power, the European Court of Human Rights held that its use was
inappropriate (
McLeod v.
UK (1999) 27 EHRR 493). It is
difficult to argue, therefore, that this power meets a “pressing need”, or
that its disappearance would be likely to cause serious difficulties for
the police. If a dispute on private premises has turned violent the police
have the power to enter to arrest for affray or assault occasioning actual
bodily harm (PACE s 17(1)(b)); similarly, if property is being damaged there
will generally be a power to enter to
arrest.
(17) If insults are being
hurled which may lead to violence then the power to enter to arrest for an
offence under section 4 of the Public Order Act 1986 will be available, other
than in relation to a dwelling. It would, therefore, be safe to dispense
with the recently developed common law power in this area. Taking account
of the right to privacy contained in Article 8, the power to enter private
premises for preventive purposes or to deal with behaviour which falls short
of violence does not respond to any pressing social need.
Turning to the lack of a “catch-all” provision if the breach of the peace
power were abolished, the existence of such a power carries with it some
dangers. The first is that if a very broad discretion is given to police
officers the possibilities for inappropriate and oppressive use of the power
are increased. Related to this is the fact that, with the enactment of the
Human Rights Act 1998, there is a need for all powers which have the potential
to infringe on individual liberty to be evaluated and measured against the
standards of the ECHR. The powers must be “Convention compatible”. Broadly
based powers are much harder to assess on this basis. The result is that
each and every use of the power may become the subject of scrutiny. It is
much easier with a statutorily defined power containing its own limitations
to say that it is or is not Convention compatible. This gives much greater
certainty both to those who are subject to the powers, and perhaps just as
importantly, to the police officers who use them. If all know where they
stand, less court time will be used in arguing about Human Rights Act issues,
and police officers will not face the risk that there work will be nullified
because in a particular case they have been found to overstep the limits
in exercising a broad discretion. This problem is illustrated by
Steel
v UK where police actions in relation to different types of demonstration
were treated differently by the European Court of Human Rights. It would
have been very difficult for a police officer to have predicted in advance
which particular exercise of these powers would be held to be in breach of
the Convention. The catch-all aspect of the breach of the peace power is
therefore undesirable in principle, and it would be an improvement in the
law if it were to be abolished. Any consequent amendment of the police’s
statutory powers should concentrate on the defined situations where it is
necessary that the police should have further powers to control individual
behaviour. It is likely, however, that the range of powers already available,
particularly under PACE 1984 and the Public Order Act 1986, will be found
to be adequate without the need for additions.
The concept of a power to deal with a breach of the peace is of very
long-standing in English law, though various aspects of it have only been
developed in the recent past. At the start of the 21
st Century,
with a wealth of statutory provisions now available to the police, the common
law power has become an anachronism. Its scope is uncertain, and much of
the ground that it covers is dealt with by more specific statutory powers.
Moreover, it does not fit comfortable with the human rights context in which
every police action must now be considered. The common law power of the police
to take action to control or prevent breaches of the peace should therefore
be abolished. Only minor additions to the police’s statutory powers would
be needed to deal with any practical problems that might result, and the
resulting law would be much more certain, focused, and in tune with the modern
context of policing.
Top | Contents
Bibliography
Feldman, D (1993)
Civil Liberties and Human Rights in England and Wales
(Oxford: Clarendon Press).
Fenwick, H (1994)
Civil Liberties, 1
st Ed, (London: Cavendish
Publishing).
Goodhart, AL (1936) “
Thomas v
Sawkins: A Constitutional
Innovation” 6
Cambridge Law Journal 22.
Kerrigan, K (1997) “Breach of the Peace and Binding Over – Continuing
Confusion” [1997]
Journal of Civil Liberties 30.
Law Commission No 123 (1983),
Offences Relating to Public Order (London:
HMSO).
Nicolson D and Reid K (1996) “Arrest for Breach of the Peace and the European
Convention on Human Rights” [1996]
Criminal Law Review 764.
Report 1981, Royal Commission on Criminal Procedure,
Report, (London:
HMSO) Cmnd 8092.
Stone, R (1997)
Entry, Search and Seizure, 3
rd Ed, (London:
Sweet & Maxwell).
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Review of Public Order Law (London: HMSO) Cmnd 9510.
Williams, DGT (1967)
Keeping the Peace: The Police and Public Order
(London: Hutchinson).
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Justice
of the Peace 199.
Endnotes
(1) This exists under the Justice
of the Peace Act 1361, the Magistrates’ Courts Act 1980, s. 115, and the
common law. See also, Kerrigan 1997.
(2) This may be contrasted with
the approach taken by the Divisional Court in
Jordan v
Burgoyne
[1963] 2 All E.R. 225 on s 5 of the Public Order Act 1936, where it was held
that a speaker who uses threatening, abusive or insulting language “must
take the audience as he finds them”, and run the risk that an unreasonable
reaction may constitute a breach of the peace.
(3) See, for example, the comments
of Nicolson and Reid 1996 (writing after
Howell but before the ECHR
decision in
McLeod) to the effect that key elements of the definition
are undefined.
(4) The case seems to revert to
the principle applied in the famous case of
Beatty v
Gilbanks
(1882) 9 Q.B. 308 to the concept of “unlawful assembly”.
(5) For the background to the case,
see Williams 1967 pp 142-149; Stone 1997 pp 56-57.
(6) An earlier similar decision,
McGowan v
Chief Constable of Kingston upon Hull [1968] Crim.
L.R. 34 was less clear cut, because the court seemed (surprisingly) to hold
that the police officer was an “invitee” having a licence to be on the premises,
so that its comments on powers to enter to deal with a breach of the peace
were strictly obiter.
(7) See also
McConnell v
Chief Constable for Greater Manchester Police [1990] 1 All E.R. 423
where it was recognised that there was power to arrest in a public place
in order to prevent a breach of the peace on private premises.
(8) A subsequent action against
Mr McLeod, his siblings and the solicitors’ clerk in the county court, was
successful, in that it was held that there was no agreement for Mr Mcleod
to collect the property and that Mrs McLeod’s mother had not given permission
for him and his party to enter the house.
(9) A claim based on Article 1
of Protocol 1 in relation to an interference with the “peaceful enjoyment
of [her] possessions” was rejected by the Commission (
(1999) 27 EHRR 493, Commission’s opinion, paras 56-59), and was not pursued before the Court
(
ibid, Judgment, para 62).
(10) See,
eg, Feldman
1993, p 832: “The scope of this power is uncertain”; Fenwick 1994, p. 265:
“The power of the police to enter indoor meetings is uncertain”.
(11) Although this decision was
on section 5 of the Public Order Act 1936 the wording of this part of the
offence is identical and there is no reason to doubt that the same principles
of interpretation should apply.
(12) The offence under section
5 does not require such intention, and is committed where the behaviour takes
place in the presence of someone likely to be caused harassment, alarm or
distress by it. That person can be a police officer:
DPP v
Orum
[1988] 3 All E.R. 449.
(13) Note that no “person of
reasonable firmness” has to be present; it is the quality of the behaviour
that is being defined by this test, not the circumstances which must exist.
(14) Entry might well also be
justified under section 17(1)(b) – arrest for an arrestable offence.
(16) As noted in the earlier
discussion, the Court of Appeal in
Lewis v
Chief Constable for
Greater Manchester, The Independent, 23 October 1991, appeared to take
a slightly different view to that adopted in
Howell.
(17) Ie for an offence
under the Criminal Damage Act 1971; unless the person is only damaging his
or her own property.
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