Learning Outcomes
This article explains the common law concept of breach of the peace within the context of public order law. You will learn the definition established in case law, understand the preventative nature of police powers related to it, and recognise how these powers interact with human rights considerations, particularly Articles 5, 10, and 11 of the ECHR. This knowledge is essential for applying legal principles to SQE1 assessment scenarios involving public order incidents.
SQE1 Syllabus
For SQE1, you are required to understand the common law powers relating to breach of the peace and their application in practice. This involves knowing the definition, the circumstances under which police powers arise, and the limitations imposed by human rights law. As you work through this article, ensure you can:
- Define breach of the peace according to established case law.
- Identify the powers police officers possess to prevent or stop a breach of the peace, including arrest and dispersal.
- Recognise the requirement for imminence when police exercise preventative powers.
- Understand the relationship between breach of the peace powers and human rights, particularly Articles 5, 10, and 11 ECHR.
- Appreciate that breach of the peace itself is not a criminal offence, but can lead to arrest or related charges like obstruction.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- Which case provides the leading definition of breach of the peace at common law?
- True or false? A police officer needs specific statutory authority to arrest someone to prevent an imminent breach of the peace.
- Can a police officer lawfully enter private premises without a warrant if they reasonably apprehend an imminent breach of the peace is occurring inside?
- Under what circumstances might police action to prevent a breach of the peace, such as kettling, potentially conflict with ECHR rights?
Introduction
Breach of the peace is a fundamental common law concept concerning public order. It provides a basis for police intervention to prevent disorder or violence before it escalates into specific criminal offences. While not a criminal offence in itself, conduct amounting to a breach of the peace can trigger significant police powers, including arrest. Understanding its definition, scope, and the limitations on associated police powers, particularly in light of human rights law, is essential for SQE1.
Defining Breach of the Peace
The fundamental definition of breach of the peace comes from the case of R v Howell [1982] QB 416.
Key Term: Breach of the peace
Conduct which causes actual harm to a person, or in their presence to their property, or is likely to cause such harm, or puts a person in fear of such harm being done.
This definition highlights key elements:
- Harm or Threat of Harm: It encompasses not only actual violence or damage but also actions likely to cause harm or instill fear of harm. The harm can be to a person or their property, provided it occurs in their presence.
- Scope: It covers a range of disruptive behaviours, including assault, affray, riot, or other disturbances causing fear.
- Preventative Nature: The definition includes actions likely to cause harm, underscoring the preventative aspect of the related police powers.
Worked Example 1.1
Two groups of rival football fans are shouting insults at each other outside a pub. No physical violence has occurred, but the atmosphere is tense, and several bystanders look visibly frightened. A police officer observes the situation. Does this scenario potentially involve a breach of the peace?
Answer: Yes. Although no actual harm has occurred, the threatening behaviour and shouting are likely to put bystanders in fear of harm (violence erupting between the groups). The situation presents a risk of escalating into violence, meeting the threshold for a likely breach of the peace under the Howell definition.
Police Powers
The common law grants police officers (and, indeed, any citizen) powers to deal with actual or apprehended breaches of the peace. These powers exist independently of specific statutory offences.
Power of Arrest
A constable may arrest a person without a warrant if:
- A breach of the peace is committed in their presence.
- The constable reasonably believes that such a breach will be committed in the immediate future.
- A breach has been committed, and the constable reasonably believes it is likely to be renewed.
Key Term: Imminence
For police to exercise preventative powers (like arrest) regarding a breach of the peace, the threat of the breach must be sufficiently close in time and place; it must be about to happen.
The requirement for imminence was emphasised in R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105. Police stopped coaches carrying protestors miles away from their intended demonstration site based on a fear of potential disorder at the destination. The House of Lords held this action unlawful because there was no imminent threat of a breach of the peace at the point where the coaches were stopped.
Worked Example 1.2
Police receive intelligence that a planned protest march tomorrow is likely to involve clashes between protestors and counter-protestors. Can officers arrest the organisers today to prevent a potential breach of the peace during tomorrow's march?
Answer: No. The power to arrest to prevent a breach of the peace requires the breach to be imminent. A potential breach tomorrow is not sufficiently immediate to justify preventative arrests today based solely on the common law power related to breach of the peace. Other statutory public order powers might be relevant, but not the common law power of arrest for an anticipated breach this far in advance.
Power of Entry
Police have a common law power to enter private premises without a warrant to deal with or prevent a breach of the peace. This power is exceptional and applies only if the officer reasonably believes that a breach is occurring or is imminent on the premises (Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705). The entry must be necessary and proportionate to the apprehended danger.
Dispersal and Control
Police may also take steps short of arrest to control a situation where a breach of the peace is occurring or apprehended. This can include:
- Directing individuals or groups to disperse.
- Separating rival factions.
- Confining a group to a specific area (kettling), provided it is necessary and proportionate (Austin v Commissioner of Police for the Metropolis [2009] UKHL 5).
Human Rights Implications
Police powers relating to breach of the peace must be exercised compatibly with the European Convention on Human Rights (ECHR), particularly:
- Article 5 (Right to liberty and security): Arrest for breach of the peace constitutes a deprivation of liberty and must be lawful, necessary, and proportionate.
- Article 10 (Freedom of expression): Actions preventing protests must be justified, necessary in a democratic society, and proportionate. Lawful protest, even if annoying or offensive to some, should generally be permitted unless it genuinely risks disorder (Redmond-Bate v DPP [2000] HRLR 249).
- Article 11 (Freedom of assembly and association): Restrictions on assemblies must meet the same criteria of lawfulness, necessity, and proportionality.
The case of Austin demonstrated that even significant interferences like kettling might not breach Article 5 if deemed necessary and proportionate in volatile public order situations, but Laporte shows that preventative action must be linked to an imminent threat.
Revision Tip
When analysing a scenario, always consider if the police action was proportionate to the threat posed. Was the breach of the peace genuinely imminent? Were less intrusive measures available? Could the police have targeted specific troublemakers rather than dispersing a whole crowd? These questions are key to assessing the lawfulness of police actions under both common law and the HRA 1998.
Enforcement and Related Issues
As breach of the peace is not a crime, a person arrested cannot be charged with it. However, they might be:
- Released without charge: If the situation de-escalates.
- Bound over: A magistrates' court can require a person to enter into a recognisance (a promise, sometimes backed by money) to keep the peace and be of good behaviour for a specified period. Refusal can lead to imprisonment. This requires evidence that a breach occurred and is likely to be repeated.
- Charged with Obstruction: Resisting a constable acting lawfully to prevent a breach of the peace can lead to a charge of obstructing a police officer in the execution of their duty (Police Act 1996, s 89).
Key Point Checklist
This article has covered the following key knowledge points:
- Breach of the peace is a common law concept involving actual or threatened harm to persons or property, or actions causing fear of such harm.
- It is not a criminal offence but provides police with powers to prevent disorder.
- Police can arrest without warrant to stop an ongoing breach, prevent an imminent breach, or prevent a recurrence.
- The threat of a breach must be imminent for preventative police action to be lawful.
- Police may enter private premises without a warrant if a breach is occurring or imminent there.
- Powers must be exercised compatibly with ECHR Articles 5, 10, and 11, requiring actions to be lawful, necessary, and proportionate.
- Individuals arrested for breach of the peace cannot be charged with that, but may be bound over or charged with obstruction.
Key Terms and Concepts
- Breach of the peace
- Imminence
