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		[2001] 2 Web JCLI

Breach of the Peace: the Case for Abolition

Professor Richard Stone

Visiting Professor, City University

<rths@tinyonline.co.uk>

© 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.

Introduction

Principles of Criticism

Current position

Definition of “Breach of the Peace

The Powers

Arrest
Entry to Premises
Restrictions on Freedom of Movement
Other Actions

Alternatives to the breach of the peace power

Powers of arrest
- Section 4 – Fear or provocation of violence
- Section 4A and 5
Powers of Entry
Control over Freedom of Movement
Other Powers

Conclusions

Certainty
Duplication
Pressing Social Need

Bibliography

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.

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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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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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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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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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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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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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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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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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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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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⁾

“may result –

(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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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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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.

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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).

White Paper 1985 Review of Public Order Law (London: HMSO) Cmnd 9510.

Williams, DGT (1967) Keeping the Peace: The Police and Public Order (London: Hutchinson).

Williams, G (1982) “Dealing with Breaches of the Peace” [1982] 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.

⁽¹⁵⁾ Section 14A(1)(b).

⁽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.