Breach of the Peace - Rules for common-law power of arrest
Bibby v Chief Constable of Essex Police
The Times, April 24 2000 COURT OF APPEAL
The FactsPolice were called to the shop of a judgment debtor where a bailiff. attempting to enforce a liability order in respect of unpaid rates, was confronted by the debtor who did not wish to part with his assets and was uncooperative. Tempers were raised and the police officer, who thought there would be a breach of the peace, told the bailiff to go and when he refused, arrested him and put him in handcuffs. He was released an hour later without charge. The bailiff sued the police for assault and wrongful imprisonment and the case was heard by an assistant recorder and a jury. The assistant recorder found that the bailiff was entitled to be at the property and had not forced entry, that he had explained to the debtor the reason for his visit and that the debtor had forcibly told the bailiff to leave and had threatened to call friends to prevent the removal of the goods. The assistant recorder held that the police officer thought that the debtor and the bailiff would come to blows, that the bailiff had refused to leave when asked to do so by the officer and that in the circumstances there were reasonable grounds for the officer's belief that a breach of the peace was likely to result. He also held that there was no issue of fact to put F before the jury and that the arrest of the bailiff was justified.
The Law (Power of Arrest)
As to the power to arrest where there was reasonable apprehension of imminent danger of a breach of the peace if the arrestor reasonably believed such breach would be committed in the immediate future by the person arrested, although no breach had yet occurred, See R v Howell (Erroll) [1982] QB 416, 426C; (1981), The Times, April 14. There had been no material upon which it could have been found that Mr Bibby had any intention of assaulting the debtor.
In substance, the assistant recorder had found that PC O’Hare reasonably considered that Mr Bibby was acting lawfully but provocatively; that as a result of that provocation a breach of the peace was likely; that any attempt to remove goods scheduled to the walking possession agreement would be resisted by the debtor, with the probable result of violence; so that it was reasonable for him to ask Mr Bibby to go and unreasonable of Mr Bibby to insist on staying, until he had either the money or the goods.
Mr Justice Schiemann referred to Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705, (1998) The Times, June 26, which held that where no breach of the peace had taken place in his presence but a constable exercised his power of arrest because he feared a future breach of the peace, such apprehended breach must be about to occur or be imminent. Nicol and Selvanayagam v Director of Public Prosecutions (1996) 160 JP 155, and Redmond-Bate v Director of Public Prosecutions, The Times July 28, 1998. Free speech included not only the inoffensive but also the irritating, the contentious, the eccentric, the heretical, the unwelcome, and the provocative, as long as such speech did not tend to provoke violence.) Counsel for Bibby, without suggesting that any passage in those cases was wrong, had urged that there was greater public interest in preventing violence than in a bailiff obtaining goods: in case of a conflict between those desiderata, the quest for peace must prevail.
But assume that a policeman, about to arrest a man, was threatened with violence if he touched the man: a passer-by told the policeman: "Go away, or there will be a breach of the peace": must the policeman obey, at the risk of himself being arrested by the passer-by?
While sympathetic to PC O’Hare’s reaction to an explosive situation, he had failed to identify whence the threat of violence was coming: implicit in the debtor’s attitude had been a threat to use violence if Mr Bibby persevered.
In summary: in order to exercise the now exceptional common law power of arrest:
1 Only a sufficiently real and present threat to the peace justified depriving a citizen, not at the time acting unlawfully, of his liberty: Foulkes
2 The threat must come from the person to be arrested: Redmond-Bate;
3 The conduct must clearly interfere with the rights of others and its natural consequence must be "not wholly unreasonable violence" from a third party: Redmond-Bate and
4 The conduct of the person to be arrested must be unreasonable: Nicol
The Decision
Held (allowing the appeal): "The common law" power to arrest a person for apprehended breach of the peace caused by apparently, lawful conduct was exceptional. A person who was engaging in or threatening to engage in lawful actions which were likely to result in a breach of the peace could only be arrested if his lawful actions, actual or threatened, were wholly unreasonable and in some way interfered G with the other person's rights. In exercising the now exceptional common law power of arrest the following conditions must be met in relation to the person who was 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 depriving a citizen. not at the time acting unlawfully, of his liberty;
2. The threat must come from the person to be arrested.,
3. The conduct must clearly interfere with the rights of others and its natural consequences must be violence which was not wholly unreasonable from a third party;
4. The conduct of the person to be arrested must be unreasonable.
The Court of Appeal so held, in allowing an appeal by Bibby, a certified county court bailiff, from the dismissal by an Assistant Recorder of his claim against the police for damages for assault and wrongful imprisonment.
Comment
This is the latest case on what constitutes a Breach of the Peace and the rules for a common law power of arrest; as such, it follows a number of cases dating beyond but mainly following from R v Howell, supra,which has been the authority for defining a breach of the Peace.
Howell told us, "There is a breach of the Peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance."
An arrest for a breach of the peace is always a difficult decision to make, it requires an, "on-the spot" decision which is very often analysed later by lawyers when they have consulted the books and Law Reports. I want to reiterate the less frequently discussed case of G V Chief Superintendent of Police, Stroud (1986) The Times, November 29 QBD; HC QBD (1988) 86 Cr App R 92; [1987] Crim LR 269
It was necessary to decide, "Whether a PC's decision was reasonable". A crowd of 100 persons shouting hostilities may seem different to a PC on the ground, than to a Judge in the cool calm safety of the Courtroom. The Report said that, "the Law of arrest was a question for the court", Before that of course (even if it is dark) it is a question for a police officer.
In Stoud the Court said, "In reviewing the reasonableness of a constable's belief that a breach of the peace was likely to occur, allowance had to be made for the circumstances in which a constable had to make a spur of the moment decision in an emergency. Therefore a mere disturbance could amount to a likelihood of a breach of the peace."
The Court considered a number of other cases, many of which Police Journal has reported upon - the most recent being in the last issue, see Redmond-Bate v DPP, Police Journal 73 Number 1 2000, page 90.
From a reading of this latest case it is clear that the court considered that PC O'Hare failed to consider from where the threat was coming; this was the same in Redmond-Bate; because it is there that the preventative action must be directed.
The Report in The Times, does not mention another factor that all three Judges allude to in the full Report in Justice of the Peace reports at 164 JP 297; they all criticize the police officers for placing Mr Bibby in handcuffs, and "taking him through a public place and on a journey to the police station"; something they considered wholly unjustified.
Were the Judges remembering R v Cambridge Justices, ex parte Peacock, (1992) The Times, July 30, did this further indignity influence their thoughts on the quantum of damages? We will never know.
Police Officers will continue to arrest for a Breach of the Peace, but Bibby spells it out - make sure you identify where the threat is coming from, IF you get time that is.
Rob Jerrard