Breach of the Peace.
(Breach of the Peace is a “Common Law” offence – see separate article for information)
A breach of the peace is someone using or threatening to use violence either against a person or, in their presence, someone’s property. It is not, as some police would like to think, the making of noise, such as blowing a whistle or using a drum or megaphone (depending of course on what is said). However, you do not have to be violent or threatening violence yourself to be arrested under “the common law” for breach of the peace: if the natural consequence of your actions is to provoke other people to use violence, and the police reasonably apprehend an imminent breach of the peace, they can arrest you to prevent it. You should not be arrested to prevent a breach of the peace for merely making a noise or being slightly annoying, offensive or upsetting someone – your actions must be those to which a violent response is both likely and imminent.
It is possible for someone lawfully arrested to prevent a breach of the peace to be taken to a magistrate’s court and bound over to be of good behaviour. This involves accepting a “binding order”, with which any failure to comply can result in imprisonment or a fine. However, being bound-over is relatively rare and, in most cases, people arrested are held by the police only until the threat of breach of the peace is over. It is possible for the police to take action to prevent a breach of the peace without arresting someone, for example by making directions to leave a place, but the circumstances under which they can make these directions are the same in which they could arrest someone. If you fail to comply with such a direction, you may be arrested for obstructing a police officer.
In taking action, the police must arrest (or give a direction to) the person or people who are provoking/threatening violence and not, as they sometimes like to, arrest (or give a direction to) the smallest party involved. Because you will not be charged with an offence, you do not have to give your details (or fingerprints, photo or DNA) to the police. This is not the case in Scotland, where a breach of the peace is an offence which you can be charged with (see “Scottish law”).
If you take part in a hunt sab, or are occupying office premises, then according to current case law your arrest for breach of the peace could be lawful. This is because you will be deemed to be interfering with the legitimate property rights of others and thus by your actions provoking the use of violence by others. If, by contrast, you are engaged in peaceful leafleting outside a shop, an arrest for breach of the peace would probably be unlawful – even if people find your leaflets offensive – so long as the leaflets do not provoke violence.
The police have often threatened activists with arrest in the past for occupying private property – e.g. banks, offices – during the course of a protest. They are now more likely to use the power of arrest for “aggravated trespass” (see article on this for more information). The police will usually warn you first before they arrest for breach of the peace. For example, if you’re occupying private premises, the police will usually ask you to leave and tell you that you will be arrested if you go back in.
Bindovers.
If you do appear in court, you will be offered a “bindover” which you can either accept or refuse. If you refuse, a date will be set for a hearing where the prosecution would have to establish that by your actions you caused or provoked the likelihood of imminent violence. If you are “bound over” to keep the peace you have to agree not to cause a further breach within a specified period. If you cause a further breach within that period, you are liable to pay part or all of a fixed sum to the court.
Case Law.
A case in the High Court was heard by Lord Justice Sedley and related to preaching by Christian Fundamentalists who were arrested for breach of the peace. They had refused to stop preaching when directed to do so by the police who believed that what they were saying would cause a breach of the peace.
In the case LJ Sedley stated:
Freedom of speech “includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided that it does not intend to provoke violence. Freedom only to speak inoffensively is not worth having.”
He also stated that “a police officer has no right to call upon a citizen to desist from lawful activity” and that “the critical question… is where the threat [of breach of the peace] is coming from, because it is there that the preventative action must be directed”.