Breach of the Peace Defined & Explained

Breach of the Peace is one of the most misunderstood powers available to police. It is not a criminal offence and can only be used where there is actual violence, an imminent threat of violence, or a genuine fear that violence is about to occur. This article explains the legal definition of Breach of the Peace, the strict limits on police powers of arrest and detention, and why officers cannot lawfully use it simply because someone is being argumentative, rude or uncooperative. It also examines a recent successful claim against Lancashire Constabulary, in which a judge found that a man had been unlawfully detained and awarded damages for false imprisonment, battery and trespass to property.

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100% of this week’s blog post was generated by me, the human.

Do the Police Understand What a Breach of the Peace Really Is?

 Do the Police not know what a Breach of the Peace is, or do they just not want the public to know, so that it can be used as a shorthand, a place holder, a convenient fiction to allow them to exert authority over a person when in fact they have no right or power to do so? 

This question was at the heart of a trial which I and my team have recently won at Preston County Court against the Chief Constable of Lancashire Constabulary.

What Is a Breach of the Peace? 

Breach of the Peace is not a criminal offence, and therefore you cannot be “charged” with or “convicted” of it. It is a power available to any police constable, or indeed, any citizen, and must be exercised reasonably and proportionally. 

As it is not a criminal offence it is not subject to the rules and regulations set down in the Police & Criminal Evidence Act 1984.

Breach of the Peace is an ancient Common Law power, literally intended to be used to restrain or stop a “breach of the King’s peace.” So, when you are thinking about this offence it helps conceptually to think Medievally rather than Modernly: Peace is the absence of “bloodshed”, not the absence of “noise or argument.” 

Peace in the terms of his law therefore means what it means in the phrase “war & peace” (I.e “the absence of violence”) not what it means in “peace & quiet” (I.e serenity, the absence of noise or disturbance).

The Legal Definition of a Breach of the Peace 

This key principle was clearly enunciated by the Court in R v Howell (Errol) [1982] QB 416 (at 427), approved in Bibby v Chief Constable of Essex [2000] EWCA Civ 113.

A Breach of the Peace can only occur in situations where –

“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.”

When Can Police Lawfully Arrest Someone for Breach of the Peace?

 The Court of Appeal, in Bibby, went on to provide the following ‘checklist’ by which to assess the legality of an arrest for a “likely” breach of the peace – 

“In order to exercise the now exceptional Common Law power of arrest [for Breach of the Peace] certain conditions must be met in relation to the person who is to be arrested and his conduct:-


1. 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 is not at the time acting unlawfully;

2. The threat must be coming from the person who is to be arrested;

3. The conduct must clearly interfere with the rights of others;

4. The natural consequence of the conduct must be violence from a third party;

5. The violence in 4 must not be wholly unreasonable;

6. The conduct of the person to be arrested must be unreasonable.”

 

Common Police Misunderstandings About Breach of the Peace

This very precise definition is one which as I have said is often confused – or, perhaps, deliberately misunderstood – by Police officers looking to exert power/ authority over people whom they don’t actually have any basis to arrest.

Why Breach of the Peace Cannot Be Used as a Catch-All Police Power

 As the Court emphasised in R (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9 at [4] – 

“The essence of a breach of the peace is violence…” and hence it must not become “a recipe for officious and unjustified intervention in other people’s affairs.” 

All too often, however, in the hands of lazy, bullying or uneducated Officers, it becomes just that. 

A person can only commit a breach of the peace through violence, or by doing something which, considered objectively, is a real threat of immediate violence. 

What Does Not Amount as a Breach of the Peace

 Being rude, noisy, argumentative or ‘disobedient’ to a Police Officer does not amount to breach of the peace, and nor does a speculative or possible risk of violence; the risk of violence must be specific, likely and imminent i.e literally about to take place (if it is not already occurring).  

Here are some pertinent examples from English case law –

Can You Be Arrested for Being Rude to the Police? 

  • Mere irritation, rudeness or disobedience is insufficient to give rise to a breach of the peace – Redmond-Bate v Director Of Public Prosecutions [1999] EWHC Admin 733 (23rd July, 1999)  – this was in the context of a group of fundamentalist Christian preachers who were attracting the hostility of a crowd, and who were arrested when they refused the instruction of a Police Officer to stop preaching. As Lord Justice Sedley memorably commented in his judgment in this case:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having…From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.”

Is Arguing with a Police Officer a Breach of the Peace?

Can Refusing to Follow a Police Instruction Amount to a Breach of the Peace?

Can a Heated Argument Be a Breach of the Peace?

Does Peaceful Protest Amount to a Breach of the Peace?

How Long Can The Police Detain You for Breach of the Peace?

 Once again, this is governed by the crucial distinction between “breach of the peace” and the commission of an actual criminal offence: crimes require investigation and punishment, breaches of the peace require only prevention.

When Must Police Release Someone Arrested for Breach of the Peace?

 As soon as the situation has calmed and any threat of violence is gone, then the deprivation of liberty must cease and the person must be released.

 If you have committed an actual crime – such as by assaulting someone or damaging property, you can of course be further arrested and detained whilst that crime is investigated.

 But if the breach of the peace has passed and no crime has been committed, there is no basis for further detention: unlike statutory offences there is no retrospective investigation of or punishment for a breach of the peace. Once it is over, it is over.

 Hence none of the “necessity” criteria which are required to justify a person’s detention in Police custody could or would apply.

 You must be released at once. Although there is an archaic power to allow a person to be brought before Magistrates to be “bound over to keep the peace” this cannot be applied retrospectively or in punishment for an earlier breach. This power only exists if the breach is continuing; and that continuance (of the threat of violence to persons or property) must be real and obvious, not merely hypothetical: I.e it must be based on the detained person’s current demeanour and behaviour not what they “might” do next.

Can Police Hold You Overnight for Breach of the Peace?

 In Williamson v Chief Constable of West Midlands Police [2003] EWCA Civ 337 it was found that a man who had been, initially legitimately, arrested for “breach of the peace” at midday on a Sunday, should have been released by 6pm that evening, rather than being kept in custody overnight (in order to be brought before Magistrates for a ‘bind over’ in the morning), because there was by that time no longer any danger of his committing a further breach of the peace and therefore a bind over was unnecessary.

What Happens After a Breach of the Peace Arrest?

 You must be released (or, alternatively) arrested for an actual criminal offence as soon as you no longer present a danger to the peace. 

Thus, most “breach of the peace” arrests are over within minutes. 

If they are not, and the person involved has not been arrested for a statutory offence (of violence or public order, for example), then the likelihood is that person is being unlawfully detained.

Can Police Search You After a Breach of the Peace Arrest?

 The answer to this question is “no”.

 Section 32 PACE search powers do not apply to a common law detention for “breach of the peace.” This was clearly explained and enunciated in the judgment in Williamson, cited above, at 16 – “the word “offence” where it appears in PACE does not include breach of the peace.”

Can Police Confiscate Your Property During a Breach of the Peace Detention?

 In other words, Police powers to search you or confiscate your belongings are tied to one of the two main powers they have under PACE: stop/search and arrest for a criminal offence. As a “breach of the peace” detention is neither of those things, the Police have no power to search you or take your possessions: if they do so, when you are detained only for a breach of the peace, they would not only be committing battery upon you, they would be committing trespass to your goods, and liable in a subsequent civil claim to pay you due compensation. 

Of course, the Police themselves, on arrest for breach of the peace, frequently (deliberately?) overlook or forget this crucial distinction.

How to Tell If a Breach of the Peace Arrest Was Unlawful

Were you committing violence, actually threatening violence or doing something sufficiently unusual and extreme so as to present a real and imminent threat of violence? If the answer is no, then you have been wrongfully arrested. 

Has your detention continued even after the situation has become calm, or you have been removed from the place where it occurred? If yes, then your continued detention from that point on is unlawful, and constitutes false imprisonment. 

Remember, that even if there is a risk of violence, once that risk no longer objectively exists, the power to detain for “breach of the peace” immediately ends.

Photo of letterhead from Lancashire Police.

Case Study: Lancashire Police Found Liable for False Imprisonment

 An excellent example of how the above principles are applied in practice, arises from a claim against the Chief Constable of Lancashire Constabulary, in which I and my team were victorious at trial in March of this year, before HHJ Deane at Preston County Court.

Breach of the Peace Arrest at a Police Station: What Happened?

 In the Summer of 2019, my client, Peter, had come to a Lancashire Police station entirely voluntarily, in fact, as a victim of crime to report an offence which had been committed against him. 

Unfortunately, Peter became involved in a heated argument with several Police officers, which centered around whether or not he was entitled to film them, if they insisted on filming him.

Arguing with Police Officers is not, of course a crime – although that appears to be a blind spot in the training of all too many of them. 

When the three officers, now refusing to take my client’s statement unless he submitted to being filmed, started to leave the public foyer of the station, my client put his foot against the door to stop it closing before he had finished having his say. 

This is not, of course, a tactic with which the Police themselves are unfamiliar – and as Peter was in a public area, it was also not an act of trespass (of which the same can’t be said of many Police “boots over the threshold” manoeuvres in our private homes). 

Peter resting his foot against the door, was also not an act of violence against person or vandalism to property, and hence was not a “breach of the peace.” 

The acts of violence instead came from the opposite direction – one of the officers (an Inspector, no less) started to kick Peter’s foot with his own (to try and dislodge it), causing Peter to exclaim in alarm and state that he would use reasonable force (as we are all entitled under the law to do) if the violence against him continued. 

Sadly, the Inspector now escalated matters further – grabbing hold of Peter he pushed him backwards into the foyer, and was joined by the other two officers, who grabbed and restrained Peter, despite the fact that far from fighting back he was now, in alarm and distress, attempting to exit the Station. 

One of the officers at least seemed to recognise this, saying to Peter (as the officers held his arms) –  “Are you going to leave the Police Station?” 

Peter immediately said that he would leave – but this simple resolution to the situation was callously overridden by the Inspector who had started it all, and who now snapped “Lock him up.” 

Peter was then taken by van, in handcuffs, to another Police station, miles away – Preston Custody Centre – and detained there for hours, without any clear purpose, and without ever being taken before a Magistrates Court to be “bound over to keep the peace” (if that was the supposed reason). The Police had also confiscated Peter’s personal belongings, which, as explained above, they have a power to do under an arrest for a criminal offence, but not under the common law for a breach of the peace arrest. 

In reality, I strongly felt that Peter’s treatment and detention was motivated by the opposite of the preventative purpose of “breach of the peace” powers: it was driven by a Police desire to punish Peter for what the Police, and in particular the Inspector, considered to be disobedience and disrespect on his part. This was a gross misuse of breach of the peace powers, and Her Honour Judge Deane agreed with our analysis.

Why the Court Found the Arrest Unlawful

 Granting judgment for Peter, she found that the officers of Lancashire Constabulary had committed against him acts of battery, false imprisonment and trespass to his property.

False Imprisonment, Battery and Trespass to Property: The Judge’s Findings 

The judge found that although Peter’s attitude towards the officers was disrespectful, uncooperative and even unpleasant, nothing he did constituted a threat of violence and in reality the Inspector was ‘arresting’ Peter not because he feared violence but because he was ‘fed up’ with his ‘disobedience’ – in essence, because Peter wouldn’t remove his foot from the door. Peter’s statement that he would use “reasonable force” if the officer kicked him again, was correctly ruled by the judge to be a defensive comment, and not a threat of impending violence. 

Even if that had amounted to a breach of the peace on behalf of my client, which the Judge found it hadn’t, she noted that in any event he should have been immediately released upon his agreement to the other officer’s suggestion, made moments later, that he now leave the Police Station. 

On arrival at the Custody desk in Preston, even the Police records indicate that Peter was presenting as “calm and co- operative” but nevertheless he was locked up in the cells for hours, just as he would have been if he were being investigated for a criminal offence. Thus did Lancashire Police lose another opportunity to end Peter’s unlawful detention. 

The Judge also ruled that the seizure of Peter’s personal belongings would have been unlawful even had he been legitimately arrested for breach of the peace, as the common law does not bestow such search-and-confiscation powers upon Police.

Compensation Awarded Following Unlawful Police Detention

 Peter now stands entitled to receive thousands of pounds of compensation from Lancashire Constabulary, the final amount pending assessment by the judge, plus of course his legal costs; but he has already received the most important thing of all – the vindication of the Court and the upholding of his fundamental rights.

Can Police Arrest You Simply for Being Disrespectful?

 Police Officers can’t invoke “Breach of the Peace” as an adjunct to their ego. Merely frustrating or disobeying an officer of the law, are not in themselves unlawful acts, and if an officer says they are, then he is simply using his uniform to unlawfully pull rank on a civilian.

What To Do If You Have Been Wrongfully Detained for Breach of the Peace

Breach of the Peace is not a “Go to Jail” card that the Police can play once they get fed up arguing with you; it is contingent on violence, not bad attitude, language, disturbance or disrespect. The “rude” health of our society requires that Police do not abuse or over-use this power. If you have been detained for breach of the peace, reflect on the commentary I have given in this blog, and contact me to seek legal representation if you feel your liberty has been violated. 

My client’s name has been changed.

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Contact the Expert Police Misconduct Solicitor

Iain Gould is a solicitor specialising in complaints, claims and civil actions against the Police. With over 30 years of experience and a national reputation, he has successfully sued all 43 police forces in England and Wales challenging abuse of power and securing rightful compensation

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