Breach of the peace is an old common law concept which is used to prevent unlawful violence against people or property. ‘Peace’ in this context refers to the Queen’s peace, and should be taken to mean ‘the opposite of war.’ A breach of the peace is not a criminal offence in itself, however special powers exist for the purpose of stopping or preventing anyone from breaching or threatening to breach the peace by committing unlawful violence.
The concept of breach of the peace is difficult to define, and the limits of the power have been subject to disagreement. However, it is now widely thought that the correct definition is that which was given in the case R v. Howell (1981): actions which harm another person, or harm his property in his presence, or actions which are likely to provoke such harm. A breach of the peace may occur on either public or private property.
The police have a number of options when deciding on how to deal with a breach of the peace. Generally, the police have three options: to attempt to defuse the situation and resolve it without using one of their common law powers, to use their common law powers of arrest, or to use their common law powers of entry.
The police are able to arrest and detain anyone who is committing, or they have reasonable cause to believe is about to commit, a breach of the peace.
If the police reasonably believe that a breach of the peace is being committed, or is about to be committed, on private property, they may use their common law power to enter the property without a warrant in order to stop or prevent the breach.
All citizens, not just the police, are able to make an arrest to stop or prevent a breach of the peace. However, extreme caution should be taken before making such an arrest, because if the arrest is not lawful the individual making the arrest could be liable for false imprisonment.
An arrest for an anticipated breach of the peace will only be lawful if the threat of the breach is imminent. Furthermore the arrester’s apprehension of the breach must be reasonable in the circumstances. This means that there must be an objectively reasonable cause which led the arrester to believe that a breach was about to occur. There is no power of arrest once the breach has finished, so any arrest occurring after the breach will be unlawful.
Breach of the peace has the potential to conflict with a number of articles of the European Convention on Human Rights and Fundamental Freedoms 1950, including Articles 5, 10 and 11, which protect the rights to liberty and security, freedom of expression, and assembly and association respectively.
Due to the loosely defined nature of the concept of breach of the peace and the wide powers afforded to those who intend to stop or prevent a breach, any use of the powers are closely examined by the courts to ensure that there has been no undue interference with respect for human rights.
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