Breaches of the Peace

Watch any police documentary on television and you can pretty much guarantee that someone will be arrested to prevent a breach of the peace.

In today's article we explore breaches of the peace in further detail, including the conditions needed for a breach of the peace to occur and the options available to the police and courts in dealing with a breach of the peace.

Breach of the peace is a common law offence, which has been around for hundreds of years - indeed as long as the office of Justice of the Peace. A common law offence is an action or behaviour that has been deemed unacceptable through centuries of tradition and legal precedent, instead of being written onto the statute books.

The leading authority for breaches of the peace is the Court of Appeal judgment in the case of Regina vs. Howell, 1982.

Lord Justice of Appeal, Sir Tasker Watkins, dismissed the Appeal in that case, but not before making some insightful comments on what actually constituted a breach of the peace. If you have half an hour to spare, you can read a copy of that judgment here.

Cutting to the heart of the issue, Watkins LJ deemed that a breach of the peace occurred if 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.

If there is no harm, or likelihood of harm, to a person or their property, then a breach of the peace cannot occur. It is regrettable that some police officers do not understand that point.

The police have a common law power to arrest and detain anyone who is committing a breach of the peace or is (imminently) about to commit a breach of the peace. If a breach of the peace is occurring or about to occur on private property the police can enter that property, without warrant, for the purposes of stopping or preventing that breach of the peace. There is no power of arrest if a breach of the peace has happened in the past, however recent that may have been.

If the police arrest a person to prevent (or stop) a breach of the peace, they have a couple of options available to them:

• release the person if the source/catalyst of a potential breach of the peace has been removed. This is the pragmatic approach on a Saturday night when the cells are already heaving with drunks and brawlers.
• hold onto the person and put them before the next available Magistrates' Court. The court will give due consideration to the fact they have already been held in police custody, probably for several hours.

A breach of the peace is not a criminal offence and proceedings do not give rise to a criminal conviction. If a breach of the peace is admitted or proved the Magistrates' Court does, however, have the power to bind a person over to keep the peace. This means they will forfeit a surety if they fail to keep the peace for the duration of the bind over. At the end of the bind over period the slate is wiped clean.

In the exceptionally rare event that a person who has breached the peace refuses to be bound over, they can be imprisoned for a period of up to 6 months (or until they accept to be bound over) in accordance with section 115(3) of the Magistrates' Court Act 1980.