"Internet Law Book Reviews" Rob Jerrard LLB LLM
Violence Required for Binding Over
Percy v. DPP
(1995) 158 JP 337 Queen's Bench Division
Before 1981 a breach of the peace had long been a vague and undefined legal concept. Police officers tended to equate it with literally any sort of disturbance. Since 1981, R. v. Howell (1982) 146 JP 13; [1981] 73 Cr. App. R. 31 is the authority for defining a breach of the peace, it is therefore surprising to read that the latest case, Percy v. DPP, tells us that violence is required before magistrates can exercise their powers of binding over under s.115 of the Magistrates' Courts Act 1980. One would have thought that knowledge of Howell would have saved on the cost of this appeal.
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 were 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) 157 JP 673; [1993] QB 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 non-violently to protest about the abuse of bye-laws 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 s.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 breachof 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 in 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) 146 JP 91; [1982] QB 458, 471 and R. v. Sandbach ex parte Williams (1935) 99 JP 251; [1935] 2 KB 192, 196 which suggested a wider meaning to the expression.
Furthermore, in so far as Denning, LJ in Everett v. Ribbands (1952) 116 JP 221; [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 s.115 of the Magistrates' Court 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 followed.
Comment
As it says in Percy, cases before and after Howell, viz., Everett v. Ribbands (op. cit.) and R. v. Chief Constable of Devon and Cornwall (op. cit.) have suggested a wider meaning to a breach of the peace. All police officers will be pleased to know that Howell has stood the test of time and that very clear definition remains good law.
Finally when exercising these powers it is also worth noting that G. v. Chief Superintendent of Police, Stroud (1986) The Times, November 29 held that 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.