England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
(His Honour Judge Bowers)

		Royal Courts of Justice Strand London WC2 Thursday, 12th July 2001

Thursday, 12th July 2000

1. LORD JUSTICE PETER GIBSON: I will ask Laws LJ to give the first judgment.
2. LORD JUSTICE LAWS: This is a defendant's appeal, with permission granted by the judge below, against an order made in the Kingston-upon-Hull County Court on 22nd March 2000 by His Honour Judge Bowers, when he gave judgment for the claimant in the action for damages to be assessed for wrongful arrest and personal injury.
3. The incident which gave rise to the claim took place at about 11.15 p.m. on 14th June 1996 at the claimant/respondent's home in Hull, when he was arrested by PC Tracy Connolly. She was exercising, or purporting to exercise, the common law power of arrest for breach of the peace. The judge held that the arrest was unlawful because (I summarise) there was no public element or public dimension involved in the circumstances of the arrest. In essence the issue on the appeal is whether such an element or dimension is required where a police officer makes an arrest for breach of the peace at common law. Mr Havers QC for the respondent has applied today for permission to put in a respondent's notice to assert that, even if the judge was wrong on this issue, the evidence in the case makes it plain that PC Connolly did not have reasonable or probable cause to make the arrest. At the close of the argument, we indicated that we would refuse permission and I shall give my reasons for doing so in due course. It is convenient first to recount the facts a little more fully.
4. The respondent's daughter, Katrina, was not herself at home on the evening in question but had spoken to her mother on the telephone. An argument was going on between her mother and father. The phone was cut off. She tried to get through again but could not. She thought the phone was disconnected. She panicked. She made a 999 call to the police. At length police officers, including PC Tracy Connolly, arrived at the house. The wife, Mrs McQuade, let them in. Mrs McQuade went upstairs, at the request of the police, leaving the respondent, her husband, downstairs. PC Connolly described the respondent, who was bare chested and had cuts to his face, as being in an irate and angry mood. On the officer's evidence, he wanted to get past the police to go to where his wife was upstairs. The police were seeking to keep him from her. He was acting, she said, very aggressively: shouting, swearing and hurling abuse. She said he was very heavily in drink. At length, he was handcuffed and PC Connolly arrested him, as she put it in terms, to prevent a further breach of the peace.
5. In his evidence the respondent said he had never used violence upon his wife and never would, and the argument between them was finished by the time the police arrived. Mrs McQuade said in her testimony that he had never been violent towards her. She told the police that he had not hit her. The police did not question Mrs McQuade while she was upstairs in order to ascertain what the position truly was and what the events of that evening had in reality been.
6. In due course the respondent brought these proceedings against the Chief Constable of Humberside, alleging that he had been wrongly arrested and, accordingly, falsely detained or imprisoned. His case so far as relevant to the appeal is that the arrest executed by PC Connolly at his home had been unlawful. The judge heard submissions of law on 22nd March 2000 after the conclusion of the evidence which had been given before a jury.
7. In civil actions involving a claim of wrongful arrest, albeit such claims are heard by a jury, it is well settled that the question whether there was reasonable and probable cause for the arrest is to be determined by the judge alone: although wherever there is conflicting evidence as to the relevant events the conflict is to be resolved by seeking the assistance of the jury: see the well-known passage in the judgment of Diplock LJ as he then was in Dallison v Caffrey (1965) 1 QB 348, 371-372.
8. On 22nd March 2000 it was submitted to His Honour Judge Bowers by reference to authority to which I shall come that there cannot at law be any breach of the peace, or threatened breach of the peace, without some element of disturbance, or threatened disturbance, to a member or members of the public, strangers to the immediate dispute. The judge's ruling is to be collected from two or three passages in the transcript of the argument on 22nd March. First, referring specifically to certain observations which have been made by Purchas and Glidewell LJJ in McConnell [1990] 1 WLR 365, to which I must return, the judge said this (transcript 17E):

"It is fairly obvious from what Glidewell LJ said that they" [that is the Lord Justices] "would not, and they did not, consider there was any need for an outside member of the public to be involved in order to entitle a person's arrest and, as I understand it, the decision seems to be that in law it is possible to have a breach of the peace on private premises without any legal requirement that there must be some involvement of the public as a matter of law; but as a matter of evidence and pragmatism, which both Purchas LJ and Glidewell LJ say, the question of whether there were reasonable grounds to apprehend a breach of the peace must involve the overspill, in my judgment, of the domestic dispute beyond the bounds of the property of which it is being held, otherwise I cannot see any reason whatsoever why, for example, Purchas LJ says:

`Clearly a purely domestic dispute will rarely amount to a breach of the peace. But, in exceptional circumstances, it might very well do so. Whether those particular circumstances which come to pass on private premises are sufficient to support a reasonable apprehension that a breach of the peace was about to occur will depend upon the circumstances in which the preventive steps ... are taken.'

So as a bold matter, and bald matter of law, he was saying it can take place on private premises, but, in my judgment, it is clear from the obiter remarks of him and Glidewell LJ that the assessment of whether there were reasonable grounds to apprehend a breach of the peace means that the definition of the breach of the peace has to spill over beyond just Mrs. McQuade in this case, and there has to be some apprehension that it would in some way disturb the public, either in the sense that the violence to Mrs McQuade was overheard, or they were likely to become involved in it."

9. Then at 20H in the same transcript, there appear these few words:

"... an assault on private land I do not think amounts to breach of the peace, and I think that is the difference. That is what I have said and that is the way I rule."

21A:

"... it seems to me that the breach of the peace aspect is not just personal violence within a home, I think there has got to be an element to justify the reasonable grounds for a breach of the peace, and I think the definition of the breach of the peace does..."

the transcript includes the word "not" with a question mark, but I think the negative is rightly omitted,

"... does involve some external or some involvement of other members of the public."

10. Thereafter, however, the argument continued. After 10 more pages of transcript the judge said this, in the presence of the jury (31 A):

"... I have decided that there is essentially a public aspect to a breach of the peace, and that it does involve violence, or the threat of violence, but there has got to be a public dimension to that, even if it is simply a question of either being overheard, observed or the violence overspilling out of the house. Now, it is strictly possible, therefore, to have a breach of the peace within a house, but, in my judgment, and this is why I have been going through the authorities, there has to be some effect outside the two people within their private home. A breach of the peace is really a breach of the Queen's peace, which runs for the benefit of all of us in the public.

Now, a police officer can arrest somebody if they honestly believe there is going to be a breach of the peace, and if that belief is based on reasonable grounds, but I have decided, and this is why it really takes this case out of your hands altogether, that a simple risk of an assault within the house, which is what PC Connolly said, is not enough to justify arresting for breach of the peace, that is the point."

11. These conclusions meant that the arrest executed by PC Connolly had, in any event, to be regarded as unlawful. In those circumstances, the judge, having decided to grant permission to appeal to the defendant Chief Constable in relation to the central issue of the meaning of breach of the peace, simply made an order for judgment for the claimant for damages to be assessed. (That may be collected at 34F of the transcript.)
12. On the same day, 22nd March 2000, His Honour Judge Bowers delivered a short judgment in somewhat more formal a guise. That is separately transcribed and is before us. In it he dealt with three points. First, he held that PC Connolly had acted bona fide in the interests of Mrs McQuade, fearing that there would be a further eruption of violence. He said,

"What she made was, on my ruling, a mistake as to the legal position as to the understanding what a breach of the peace is ..." [transcript 1D].

13. Second, the judge held that an injury suffered by the respondent to his leg was a direct and foreseeable consequence of the acts constituting the arrest, though he made it clear that it had not been deliberately or recklessly inflicted. Third, the judge held that the respondent did not request medical treatment of the police while he was incarcerated in police cells.
14. The only issue in the appeal, as I have indicated, is whether the judge was right to hold that a breach of the peace committed or apprehended on private property must involve some kind of disturbance to members of the public on the premises. Before addressing that issue I am bound to say, with some regret, that for my own part I think the way the judge dealt with the case procedurally was less than satisfactory. The reasons for his relying on the main question emerged in dribs and drabs; sometimes, as I have said, followed by further argument. The formal judgment ultimately delivered itself contained no reasoning on the point about breach of the peace, at any rate no direct reason, and I do not consider that the three points with which in fact it dealt, namely the good faith of the officer, the causation of the leg injury and the issue about the respondent seeking medical attention, were actually within the judge's purview rather than that of the jury. They do not seem to have been relevant to the question whether PC Connolly had reasonable and probable cause to arrest the respondent. Indeed, whether she had or lacked such reasonable and probable cause might be thought to have been left unanswered by the judge; and that was a question that attracted some attention in the course of the submissions made to us.
15. That conveniently brings me to Mr Havers' application to put in a Respondent's Notice. He submitted, by reference to passages in the transcript of the evidence, that:

(1) PC Connolly made no inquiry whatever as to whether there had in fact been any violence before the police arrived;

(2) there was nothing, save perhaps for the blood on the respondent's face, to suggest there had already been a breach of the peace; and

(3)both the respondent and his wife gave evidence to the effect that the argument between them was over and there had been no violence while it had been going on.

16. Accordingly, says Mr Havers, we in this court may be confident and should hold that PC Connolly had, on the facts, no reasonable and probable cause to perceive an emergency here and to arrest the respondent. For my part, I do not accept this, attractively presented though it was.
17. Looking at the evidence cold, in transcript form, it seems to me at least to be the case that two views might be taken as to reasonable and probable cause; and it could be thought that in the light of the respondent's demeanour and behaviour, as the woman police officer perceived it, there was indeed good cause to make the arrest. Second, there are passages in the transcript of argument, not least at 28E, which at least suggest that that was the judge's own view. Indeed, Mr Wilby QC for the appellant submitted that the judge distinctly so held. I do not, for my part, think it is as clear as that; and it does seem to me to be plain that the judge had not received distinct submissions as to the question on the facts whether there had been reasonable and probable cause for this arrest. In my view, we are in no position, sitting as an appellate court, to reach a determination for ourselves whether or not there was reasonable and probable cause. Accordingly, I would refuse permission for a Respondent's Notice.
18. I turn then to the question in the appeal. Is it a necessary ingredient of breach of the peace at common law when it occurs on private premises that it should involve additional factors, namely disturbance to, or at least involvement of, members of the public who are off the premises at the time? The question is not free from authority. That is no surprise, given that the notion of breach of the peace has been known to the common law for 600 years or more. Indeed, as has more than once been remarked, the surprise is that issues of the kind raised in this case were not laid to rest a long time ago.
19. If I look at the question at first unaided by authority and as a matter of principle only, the proposal of this additional factor, a disturbance of the public, appears to me to be muddled and confusing. What kind of legal policy can lie behind it? It is possible, I think, that there has been a tendency to confuse what are two different ideas, namely the keeping of the Queen's peace and the preservation of public order. The former no doubt includes the later, but they are not co-extensive. Public order is concerned with the tranquillity and safety of public places. Keeping the peace is concerned with the prevention of violence and damage wherever they may occur, public or private. The suggestion that there has to be found an element of public disturbance in every instance of breach of the peace conflates these two ideas and does so unsupported by any rational policy of the law; and the conflation is also, to say the least, logically fragile. Suppose a fight breaks out between two out of 20 guests at a private party in a private house. Presumably, on the judge's approach in this case, the other 18 persons present are not members of the public for the purposes of the breach of the peace. But, if the fight is between two lonely soles with no other person present, yet a passer by hears its ugly sounds through an open window and hurries on his way, that may be enough.
20. Plainly, the law cannot be allowed to depend upon such ludicrous distinctions. To my mind, the policy of the law relating to arrest for breach of the peace is plain enough. Its purpose is to deal with emergencies. The power of arrest may be exercised without any warrant and belongs to the ordinary citizen as much as to the constable. The circumstances giving rise to a lawful exercise of the power are, with respect, succinctly described in R v Howell [1982] 1 QB 416. The issue there was whether there was power to arrest for a threatened, and not only for an actual, breach of the peace; and the Criminal Division of this court held that there was. It was not a case in which the relevant events took place on private premises, and so does not directly touch the issue distinctly arising in the present case. However, it is clear from the report that much of the old learning was reviewed by the court; and the terms of the judgment delivered by Watkins LJ are, with great deference, wholly consistent with the approach to the notion of a breach of the peace which has seemed to me to be right. Watkins LJ said this (426B):

"We entertain no doubt that a constable has a power of arrest where there is reasonable apprehension of imminent danger of a breach of the peace, so for that matter has the ordinary citizen ... . We hold that there is power of arrest for breach of the peace where:

(1) a breach of the peace is committed in the presence of the person making the arrest or

(2) the arrestor reasonably 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."

21. Then at 427E:

"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 to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without a warrant."

22. I should say that it does not seem to me that in this latter passage the court was indicating that the breach of the peace has to affect someone in a public place. The references to riot, unlawful assembly and so forth merely indicate that in some cases that will be so, but in others it may not.
23. At all events, in my judgment, the proposition that there must be some disturbance to a member or members of the public who are not within the premises where the breach takes place is decisively contradicted by the judgments in this court in McConnell (1990) 1 WLR 364. To collect the facts I should read part of the head note (364C):

"The plaintiff entered a store manager's office and refused to leave when asked to do so by the store manager. The police were called and a police constable escorted the plaintiff outside. When the plaintiff attempted to re-enter the store the constable, purporting to exercise his common law power of arrest, arrested him on suspicion that he was guilty of conduct whereby a breach of the peace might be occasioned, or that such a breach of the peace might take place if the plaintiff was allowed to re-enter."

24. Then, for reasons which appear very shortly, I read the holding of the court as reported in the head note, the court dismissed the plaintiff's appeal against the dismissal at first instance of his claim for damages for false imprisonment. The editor of the report puts it thus (364F):

"Held, dismissing the appeal, that a breach of the peace could take place on private premises even though the disturbance was confined only to the persons immediately involved in the altercation if a member of the public was likely to be disturbed; that the question whether any member of the public was likely to be affected by the disturbance was a matter of fact which had to be decided according to the evidence, and not as a matter of law; and that, accordingly, the judge's conclusion on the preliminary ruling was correct."

25. This formulation suggests that an element of public disturbance is required for breach of the peace. Unhappily, this is one of those rare instances in which the head-note to the report is misleading. The issue in the case was whether a breach of the peace could take place on private property at all. Glidewell LJ referred to Howell, which I have cited, and to the decision of the Divisional Court in Wylson v Skeock [1949] 113 JP 294 and Robson v Hallett [1967] 2 QB 939. He referred also to a further decision of this court in Ex parte Central Electricity Generating Board [1982] QB 458. From these authorities, Glidewell LJ found plain indications that a breach of the peace could indeed be committed on private land. Indeed, as he stated in the last case (CEGB) Templeman LJ, as he then was, said as much.
26. However, the appellant had a further argument which Glidewell LJ described as more wide-ranging. The learned Lord Justice then stated (371G):

"Mr Scholes' main argument is more wide-ranging. He submits that, in order for there to be a breach of the peace on private premises, the authorities justify the proposition that it is necessary to find some disturbance which would affect members of the public, or at least one other person, outside the premises themselves. If the only people who are disturbed in any way are those inside the premises, those immediately concerned in the altercation, then there is no breach of the peace, he submits. During argument, I asked him to seek to distinguish a case of an abusive altercation arising between two people in an isolated house from a similar altercation arising between the same two people in a terrace house with thin walls and neighbours who could hear everything that was going on. Mr Scholes agreed that the logic of his argument meant that in the latter case there would be a breach of the peace, whereas in the former there would not. That, in my view, cannot be a very sound basis upon which to find the limits of this particular jurisdiction.

In my judgment, there is no warrant for this restriction on the bounds of what may constitute a breach of the peace for the purposes of entitling a police officer, who genuinely suspects on good grounds that a breach of the peace may occur, to make an arrest. The authorities do not provide any warrant for that. Indeed, if Mr Scholes' submissions are correct, the answer which the judge should have given to the question posed was not `No. A breach of the peace may not take place on private premises,' which is the answer, I take it, the plaintiff really desires, but `Yes. A breach of the peace may take place on private premises but only in defined circumstances, namely if a member or members of the public are likely to be disturbed.' Further than that, I accept that the effect on the public may be relevant in this situation. For instance, if abusive words are spoken during the course of a public gathering or a public meeting, it may much more readily result in a breach of the peace than if precisely the same words are spoken in a private place between two persons. Thus, the question whether or not any large number of members of the public are or not likely to be involved or to overhear the words is one which, as a matter of fact, may be very relevant to the magistrates' decision. But, as a matter of law, for the reasons I have sought to give, in my view, the judge came to an entirely right conclusion. I would, therefore, dismiss the appeal."

27. It seems to me entirely plain that in this reasoning Glidewell LJ distinctly rejected the submission that there must be some disturbance to a member of the public outside the premises where the putative breach of the peace happens or is threatened. What is recognised is the fact that there will be some sets of circumstances where the presence of members of the public may be highly relevant as a matter of evidence to the question whether a breach of the peace will or may eventuate. That, with great respect, is plainly right, but it is a far cry from the proposition that public disturbance is a necessary legal ingredient in breach of the peace. To my mind the point is also put beyond doubt in the judgment of Purchas LJ, at 373A:

"The difficulty with Mr Scholes' submission, even with the qualification for which he contends, is that whether or not there is established a threat of disturbance to a third party brings obvious difficulties particularly when the case involves conduct which might involve a breach of the peace, rather than conduct which has constituted such a breach. Once it is accepted that a breach of the peace can take place on private premises, then to attempt to place some qualification on it as a matter of law rather than as a matter of evidential approach and examination, is, in my judgment, very undesirable and would only hamper this broad approach, which has been well recognised since the 14th century and has recently been defined in Reg. v. Howell (Errol) [1982] Q.B. 415.

For those reasons and for the reasons given by Glidewell L.J. I agree that this appeal fails."

28. It is, in my judgment, inescapable that His Honour Judge Bowers misunderstood their Lordships' reasoning in McConnell. In fairness to him, he may have been misled by the head-note, although it is right to say that he refers in terms to the text of the judgments. In my view, not only is McConnell binding authority in favour of the appellant before us, but also, with respect, it is plain that reason and policy combine to commend the approach there taken. Once it is appreciated that keeping the peace is one thing and the maintenance of public order is another, a requirement that there always must be a public element in the former undermines the utility of the power to arrest for breach of the peace. That utility, for the purposes of cases like the present, was described by Beldam LJ in Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705 at 712a thus:

"... the valuable protection which is so frequently given by the police who in the course of their duties become embroiled in the unreasonable domestic disputes of others in which their help proves invaluable in preventing violence."

29. This power would be rendered wholly nugatory if police officers could not act unless there were a public by-stander. All that said, this power of arrest, like any power, is capable of being abused. Because no warrant is required, because the arrest may be made on private property and in anticipation of trouble which has not yet occurred and because, as I would hold, there need be no public element, special care has to be taken where any such arrest is in contemplation, though the circumstances may be urgent and changing by the second.
30. I would wish to underline, with respect, what was said by Thorpe LJ in Foulkes at 713d:

"I accept it" [that is arrest for breach of the peace] "is a possible result under the law as it has evolved to prevent breach of the peace. But I would hope that only in the rarest cases would domestic dispute and the rights of occupation of the matrimonial home be subject to the breach of the peace regime."

31. Purchas LJ in McConnell at 372G in the passage quoted by His Honour Judge Bowers, it will be recalled, said this:

"... a purely domestic dispute will rarely amount to a breach of the peace. But, in exceptional circumstances, it might very well do so."

32. That passage is not altogether easy to understand, but it may be thought that it is at any rate consistent with what Thorpe LJ was later to say. In the end, of course, the police officer called to the premises must make his own judgment.
33. In a skeleton argument prepared by Mr Havers' predecessor, it is submitted for the respondent that importance should be attached to the terms of the Public Order Act 1986. Reference is made to sections 4 and 5 of that statute, which specifically limit the scope of the public order offences there dealt with so that no offence is committed where both protagonist and antagonist are in a dwelling house. Then this submission is made at the end of paragraph 2:

"As the question of committing public order offences in a dwelling has been considered and legislated upon by Parliament, the remaining common law offence of breach of the peace should be set against the legislative restraints of other offences against the Queen's peace which are codified."

34. This is gallant but hopeless. The submission must be that the court should read some limitation into the common law power of arrest to reflect in some way the fact that Parliament has excluded acts wholly done in a dwelling house from the category of public order offences. I do not begin to understand why that should be so. I think that this argument tends to reinstate the confusion to which I have already more than once referred, namely that between keeping the peace and maintaining public order. However that may be, the fact is that the statutory public order offences address such particular sets of defined circumstances as the Act provides for. The common law notion of breach of the peace addresses a series of possible sets of circumstances, some of which may overlap the statutory offences. But the two sets are not identical; there is no discernible policy of Parliament that makes them so; there is no basis in law or in logic for a view that one set intrudes into the definition of the other.
35. Mr Havers, if I may say so more realistically, submitted that the judge in fact accepted that, as a matter of law, a breach of the peace may take place in private but as a matter of evidence and pragmatism it is almost inevitable that some public element be involved. He referred to that passage in the transcript of argument at 17E-F dealing with McConnell which I have already set out. In particular he referred to the judge's quotation of the comment of Purchas LJ in McConnell to the effect that a domestic dispute will rarely amount to a breach of the peace but might do so in exceptional circumstances. However, it is clear in my view that the judge was holding that at least in the class of case with which we are here concerned there must be an element of disturbance to the public. He treated that as a legal requirement; part of the definition of the concept of breach of the peace. There is no other way in which those pronouncements which actually contain his conclusions can sensibly be read. That was an erroneous view. Accordingly, the appeal is good and I would allow it.
36. If my Lords were to agree with my reasoning, including what I have said about Mr Havers' application to put in a Respondent's Notice, it may be that there is no alternative but to direct a fresh trial. However, counsel may wish to make further submissions as to that.
37. SIR MARTIN NOURSE: I agree with the judgment of Lord Justice Laws.
38. The facts of McConnell v Chief Constable of Greater Manchester Police [1990] 1 WLR 364 are indistinguishable from those of the present case in any material respect. I agree, therefore, that that is an authority binding on this court. Authority apart, it would be contrary to principle to hold that an act which would constitute a breach of the peace if committed in a public place, or on private premises where a person or persons other than the participants are affected by it, should cease to be such if committed on private premises where only the participants are involved. None of the authorities gives support for such a distinction, which could not be justified on grounds of public policy or otherwise.
39. I too would allow this appeal.
40. LORD JUSTICE PETER GIBSON: Despite the attractive submissions of Mr Phillip Havers QC, to whom we are indebted for appearing pro bono for the claimant, Mr McQuade, for the reasons given by my Lords, with which I am in entire agreement, I too would refuse the very late application by the claimant to put in a Respondent's Notice and would allow the appeal.
Order: Appeal allowed and retrial directed. No order as to costs.