Breach of the peace

Breach of the peace is a 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.’

It is now widely accepted that the correct definition for breach of the peace is that which was given in the case R v. Howell (1981), ie, that the behaviour of the person involved caused the police officer (or private citizen) to believe that:

1. a breach of the peace had or would occur; and that
2. it related to harm which was actually done or likely to be done to a person or, in his/her presence, their property.

Generally, the police have three options: to try to resolve the situation 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 can 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 to stop or prevent the breach.

All citizens, not just the police, can make an arrest to stop or prevent a breach of the peace occurring in their presence. 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. The arrester’s apprehension of the breach must be reasonable in the circumstances. This means 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.

Since breach of the peace is not a criminal offence, it is not punishable either by a fine or imprisonment and proceedings for breach of the peace do not give rise to a conviction. Magistrates, however, can bind someone over to keep the peace. This means the offender has to agree to keep the peace for a set amount of time. Any breach of the bind-over can result in a financial penalty or even jail. A failure to agree to keep the peace may of itself lead to a person being committed to custody under the Magistrates Court Act 1980.

Breach of the peace has the potential to conflict with 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 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 there has been no undue interference with human rights.