Apprehended breach must be imminent

Foulkes v Chief Constable of Merseyside Police

(1998) The Times, June 26 COURT OF APPEAL (Civil Division)

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.

THE FACTS

The facts were these. Foulkes called the police to his house to deal with a disturbance. His teenage children were playing music very loudly and they would not obey his instruction to leave the house. The police escorted the children out, but as the daughter was leaving she stubbed out a cigarette on her father's jumper. Later that morning Foulkes awoke to find that the children had returned for breakfast.

There was another family row, with Foulkes's wife siding with the children. Foulkes called the police from a telephone box. When they responded they found Foulkes, who appeared to be nervous and agitated, locked out of his house, which he owned jointly with his wife. She had changed the lock. Two officers attended the scene. One gained entry and spoke to the wife while the other spoke to Foulkes outside and was told about the earlier incident. The first officer told Foulkes that his family did not want him to go back into the house and that if he did so there would be arguments. He suggested that Foulkes should go away until tempers cooled, but Foulkes would not do so. Following a warning, he was arrested by the second officer because the latter was "fearful that it was his (Foulkes's) actions outside the property that was going to cause a breach of the peace

The officer thought that if he left the area Foulkes would persist in trying to get into the house. As the officer put it, "If he (Foulkes) got into the house, then an argument would ensue and violence would occur, whether the violence would be upon him or upon the other members of the family at that time to me did not matter but a breach of the peace would occur due to his actions".

CIVIL ACTION

Foulkes sued, claiming false arrest and unlawful imprisonment. It was conceded that the arresting officer honestly believed that a breach of the peace was likely to be occasioned unless he arrested Foulkes but did he have reasonable grounds in law for the arrest and subsequent detention of Foulkes? There was no evidence that Foulkes had caused any damage or had been aggressive. The possibility of arguments if Foulkes got back into the house did not mean that there would necessarily be violence or damage to property. There was no evidence that any member of the public might have been affected by this domestic squabble.

Foulkes relied in the appeal on the dictum of Watkins LJ, in R v Howell [1982] QB 416; (1981) The Times, April 13 It was claimed that this amounted to an exhaustive commentary of the power to arrest for breach of the peace. Beldam LJ, in this case pointed out, however, that many decisions showed that conduct not obviously illegal could justify an arrest if it was persistent or provocative.

Among the examples cited by Beldam LJ were the well known cases of Duncan V. Jones (1936) 99 JP 399 and Thomas v Sawkins (1935) 99 JP 295,(Police entitled to enter on premises to prevent a breach of the peace.) Beldam LJ did agree, however, with the submission that the common law power to arrest for an apprehended breach of the peace arising from lawful though provocative conduct was exceptional. "It is a power which ought to be exercised, (by a constable) only in the clearest of circumstances and when he is satisfied on reasonable grounds that a breach of the peace is imminent." The officer here had acted with the best of intentions, but he did not have a sufficient basis to conclude that a breach of the peace was about to occur or was imminent. "There must, I consider, be a sufficient 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." The present case fell short of that.

Schiemann and Thorpe LJJ, agreed. Thorpe LJ, added some comments on the family law perspective. The wife's exclusion of Foulkes from their jointly owned home had been wrongful. The police had not appreciated that. The detention of an injured party is a possible result of the law to prevent a breach of the peace. "But I would hope that only in the rarest cases would domestic dispute and the rights of occupation of the matrimonial home be subject to the breach of the peace regime". Subsequently, his lordship stated, "I find it hard to envisage a situation in which the power of arrest for an apprehended breach of the peace would be an appropriate management of a dispute between husband and wife within the matrimonial home"

Following his arrest his wife made a statement including that she wished him to be brought before a magistrate to be bound over but later withdrew that suggestion.

In Albert v Lavin [1982] AC 546, 565; (1981) The Times, December 4 Lord Diplock said: "Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so: and those reasonable steps in appropriate cases will include detaining him against his will."

PC McNamara acted with the best intentions. He had tried persuasion but Foulkes refused to be persuaded or accept the sensible guidance he had been given but that was not a sufficient basis on which to conclude that a breach of the peace was about to occur or be imminent.

THE DECISION

There must be a sufficient 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.

The Court of Appeal so held allowing an appeal by Foulkes against the dismissal of his claim, County Court, that his arrest by PC McNamara of Merseyside Police, outside his home, on the ground that the police officer feared a breach of the peace if he did not do so, was unlawful.

Comment

Before coming to some of the more frequently discussed cases it is apposite to review a 1986 case, which could have assisted as a guide to Judges on the question of "Whether a PC's decision is reasonable"

that of, G V Chief Superintendent of Police, Stroud (1986) The Times, November 29 QBD

The first observation is that whilst is respected what Thorpe LJ; says about Matrimonial law, police training does not cover such matters as Joint Tenancies and English Land Law.

THE STATUTE

The Public Order Act 1936 provides that "any person who in any public places uses Threatening, abusive or insulting words or behaviour, with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence".

THE FACTS OF STROUD

There was a public playground at Stroud where there were swings for children aged under 14. On August 31, 1985 "G", then aged 15, was using the swings and used abusive language in the presence of Mrs Merrick and her granddaughter aged three.

Mrs Merrick's son-in-law, Mr Chapman, asked "G" to leave as he was above the age limit for the junior swings. "G" refused, whereupon Mr Chapman called the police.

When the police arrived "G" at first refused to give his name and address but subsequently did so "G"'s mother arrived in an agitated state and besides Mrs Merrick, Mr Chapman and the child, there were several persons including children and young people in the vicinity.

When the police approached they saw what was described as a "very ugly confrontation". "G"'s mother told him to go home, whereupon "G" jumped off the swings and began to walk off.

As he did so he made a two-finger gesture at the police and shouted "fuck off'. A police constable shouted at him to stop but "G" made the same gesture and shouted the same words again.

The police constable caught up with "G", took hold of his upper arm and told him he was under arrest. "G" punched the constable twice in the face and struggled shouting "I'll fucking stab you" and both fell to the ground.

Another police constable helped to restrain "G" who was told that he was under arrest.

"G" was charged with using abusive words and behaviour in a public place contrary to section 5 of the 1936 Act and also with assaulting a police officer in the execution of his duty contrary to section 51(1) of the Police Act 1964.

By section 7(3) of the 1936 Act a constable might without warrant arrest any person reasonably suspected by him of committing an offence under section 1, 4 or 5 of the Act.

The question which arose was whether "G"'s arrest was lawful. If it was, the assault was admitted. If it was not it was submitted that the constable was not acting in the execution of his duty.

section 5 of the 1936 Act was concerned with incitement and provocation to breach of the peace and also with behaviour on the part of the possible defendant.

It was dealing with a situation where a breach of the peace had not yet been committed by anyone, although it might be committed by anyone who was incited or provoked or by the defendant himself.

The mere behaviour, if the conditions laid down by section 5 were fulfilled, was an offence, but it did not have to result in an arrest under S 7(3).

On the first charge the prosecution had first to prove that "G" used abusive words and behaviour. They then had to prove that a breach of the peace (by someone was likely to be occasioned.

On the the second charge the prosecution had to prove that the arrest was lawful and if it was there was no doubt that the constable had been assaulted.

if the arrest was under section 7(3) it had to be proved that the situation that presented itself gave the constable reasonable grounds for suspecting that there would be a breach of the peace by somebody.

If the arrest was at common law it had to be proved that the constable reasonably believed that "G" was about to breach the peace.

Under whatever power the constable acted, his belief or suspicion (and there could be no difference between them) had to be based on reasonable grounds. A previous breach by "G" could be ground for belief, provided it had not exhausted its effect.

Before the justices "G" contended !hat a mere disturbance not involving violence or a threat of violence could not amount to a breach of the peace and that in the present case there was no likelihood of a breach.

The justices found that a breach of the peace had occurred before the arrival of the police because "G"'s words and behaviour had alarmed Mrs Merrick.

Although there was some evidence that she had, naturally enough, been alarmed at what was going on, it did not justify that finding. However. that finding was immaterial.

The constable thought any offence against section 5 of the 1936 Act had been committed, but no more.

The justices found that the constable believed genuinely and honestly that a further breach was likely to occur in the immediate future. That clearly implied that they found his belief was reasonable.

It was submitted for "G" that that there was no evidence that any third person was either put in fear or was likely to breach the peace, but that submission ignored the likelihood of a breach by "G" himself.

The justices were also entitled to rely on the evidence of the police officers as to the behaviour of "G" before the arrest. The reasonableness of the constable's belief was shown by the extraordinary violence of "G"'s resistance to arrest. It needed two officers to overpower him.

There was evidence available to the justices and it was for them to assess its weight.

The test of "reasonableness", although a question of fact, was always treated as a question of law, and therefore open to review. The fact that "G" was walking off was not a clear indication that he was going in the direction of his home.

His general behaviour justified the constable's belief that a breach was likely.

Police officers had to make their decisions on the spur of the moment. and although they were subject to review, full allowance had to be made for the circumstances in which they found themselves in emergencies.

Although no breach of the peace had occurred prior to the arrest, the constable was empowered to arrest "G" and was acting in the execution of his duty.

THE DECISION

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 dismissed "G"'s appeal by case stated from his conviction by juvenile Court on January 20.1986.

It is submitted that this reasonableness test combined with the "spur of the moment" view could be a good approach for Justices & Judges to adopt.

VIOLENCE REQUIRED FOR BINDING OVER.

Before 1981 a breach of the peace had been an undefined legal concept. There was a tendency to equate it with literally any sort of disturbance.

Since 1981 R v Howell [1981] 73 Cr.App.R.31; (1981) The Times, 13 April is the Authority for defining a breach of the Peace.

Howell tells 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."

The facts of Percy v DPP (1994), The Times 13 December QBD were that that a complaint had been laid against Percy, that she had unlawfully conducted herself by entering RAF Alconbury as a trespasser in circumstances whereby a breach of the peace was reasonably apprehended.

In Bugg v DPP [1993] Q.B.473 the Divisional Court held that the RAF Alconbury Bye-laws were Ultra Vires (beyond the powers), consequently it was not possible to proceed against Percy on those charges.

As originally laid, the matters complained of were said to be "contrary to common law", but that was amended at trial to read "pursuant to the Justices of the Peace Act 1361" in order to enable the justices to make use of their powers under that Act if they did not find the complaint proved.

The justices found that the complaint had been proved and that it was necessary to bind Percy over to prevent any recurrence of the behaviour which had led to the complaint.

Percy said that she had gone peacefully and nonviolently to protest about the abuse of bylaws relating to the base and the continuing expansion of the war machine.

Before the justices, the prosecution's contention had been, not that Percy would herself be guilty of any violent conduct, but that personnel on the base, in particular United States servicemen who might be armed, might react to her presence in such a way as would cause a breach of the peace.

The justices' order made it clear that they were exercising their powers under section 115 of the 1980 Act. Certain issues were discussed. First, what had to be established to constitute a breach of the peace. Second, were the justices entitled to find that what Percy had done could have led to a breach of the peace?

In Howell it was made clear that there had to be violence or threatened violence for there to be a breach of the peace to justify an arrest.

There was, in the court's judgment, no justification for giving a different meaning to breach of the peace when used in the context of justices powers to bind over to keep the peace.

There were some dicta in R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458, 471 and R v Sandbach, Ex parte Williams [1935] 2 KB 192, 196 which suggested a wider meaning to the expression.

Furthermore, in so far as Lord Justice Denning in Everett v Ribbands [1952] 1 KB 112 appeared to equate a breach of the peace to the commission of a criminal offence or breaking the law of the land, the court thought he went too far.

In the court's judgment, breach of the peace was limited to violence or threats of violence as set out in R v Howell and any observations which might indicate something wider ought not to be followed.

The submission that there should have been evidence presented to the justices that a breach of the peace was apprehended by someone present at RAF Alconbury was not accepted.

However, the court agreed that there was no evidence put before the justices which entitled them to find that violence was the natural consequence of any of Percy's actions.

Similarly, when looking to the possibility of further trespass by Percy, the justices had to be satisfied that there might be violence. There had to be a real risk, not a mere possibility of a breach of the peace.

The justices' finding that Percy's conduct could have provoked others to violence, apart from being unsupported by the evidence, was too vague to justify making any order.

It was highly improbable that the non-violent acts of trespass committed by Percy would provoke trained personnel to violent reaction.

The Court held that violence or the threat of violence was required before justices could exercise their powers under Section 115 of the Magistrates Courts Act 1980 to bind someone over to keep the peace.

Accordingly, a civil trespass, on its own, could not justify a binding over order.

The criminal standard of proof should be applied to applications to bind someone over for a breach of the peace. Appeal allowed.

As it says in Percy, cases before and after Howell, viz, Everett v Ribbands (1952) and R v Chief Constable of Devon and Cornwall (1982) have suggested a wider meaning to a breach of the peace. So far Howell has stood the test of time, it is submitted it should remain so.

When the Public Order Act 1986 was enacted it left untouched the common law power to arrest without warrant for committing or being about to commit a breach of the peace, (Preserved Power of Arrest under PACE), Foulkes may cause us to reconsider the cases.

In R. v. Chief Constable of the Devon and Cornwall Constabulary ex parte Central Electricity Board [1981] 3 All ER 826; (1981) The Times, October 21 the Board, pursuant to its statutory power, wanted to survey a site on private land to assess its suitability for a nuclear power station. Protesters occupied the site and disrupted, by non-violent means, the Board's attempts to carry out the survey; The Board sought the assistance of the police to prevent further obstructions, but the Chief Constable refused to intervene. He took the view that he had no statutory or common law powers of arrest in the particular circumstances. The Board applied for Mandamus. The Divisional Court refused the application and the Board appealed.

The conduct of the protesters was an an offence under s.282(2) of the Town and Country Planning Act 1971. (No power of arrest). The Board could only issue summonses and/or obtain injunctions. Injunctions were, in fact, granted against a number of persons, who obeyed them, but highly organized protesters then moved in. Their activities, though peaceful, caused major difficulties for the Board. They could not easily be identified to enable the Board to obtain further injunctions. In any event, it was likely that others would take their place if such proceedings were brought. The Board, therefore, turned to the police for help, but they replied that they required a "more definitive legal mandate" before they could give the requested assistance.

The police view was that there had been no breach of the peace or unlawful assembly, nor did they have any apprehension of a breach of the peace. The Court of Appeal disagreed. The protesters were breaking the law by obstructing the Board's workmen. The Board was entitled to resort to self-help, by the use of reasonable force if that became necessary. Lord Denning MR went further, however, and held that the criminal obstruction by the protesters was itself a breach of the peace. "There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it ... even if this were not enough, I think that their unlawful conduct gives rise to a reasonable apprehension of a breach of the peace" His Lordship went on to refer to the reaction that such obstruction was likely to provoke, namely forceful removal of the obstructors. Whether or not that was lawful self-help, it broke the peace.

Many thought the Master of the Rolls went too far and considered his widening of the concept as dangerous. Lord Denning would have called them, "Timorous souls"

The key features in the Devon & Cornwall case were that the protesters were clearly committing criminal offences and they were liable to be ejected by force. There would then be a breach of the peace whether or not the force used was within the lawful limits of self-help and whether or not the protesters were violent in intent. In short, the common law was robust enough to deal with the sort of threat to the rule of law that this protest by passive, but unlawful, obstruction presented.

In R. v Howell supra, Watkins LJ; defined a Breach of the Peace. He also said, "It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant".

Minor disturbances and quarrels are commonplace, in the domestic context.

The approach required by the courts should be based upon the accepted definition of a breach of the peace in Howell, did the officer act reasonably and "on the spur of the moment", if so as far as possible his/her actions should be supported. Police officers are not Lawyers and do not carry law libraries with them.

To avoid difficult situations, E.G. the "Common law wife situation"

officers might consider their powers under the Public Order Act 1986 rather than rely on the common law.