It was in the Justice of the Peace Act 1361 that the foundations were laid for the common law complaint of a Breach of the Peace. It is quite remarkable to comprehend that police officers today, dressed in kevlar and carrying CS incapacitant and in many cases a electronic stun device are still enacting powers that were in place before the battle of Agincourt, during the reign of Edward III. It continued the tradition of parish constables who arrested ‘riotous and barratory behaviours’ that were a threat to the King’s Peace. Most officers have, over the years, found that this common law authority allows for prompt action in all manner of important situations – it may be used to arrest someone who is committing a breach of the peace and someone who the officers reasonably anticipate will breach the peace in the imminent future. They may force entry to premises in order to do so and all without a warrant.
Where officers have arrested a person for a Breach of the Peace, the must place that person before the local Magistrates where the person will be ‘bound over’ for a certain sum of money for a certain period of time – let’s say £200 for six months. If in that period of time they are brought again before the Magistrates and convicted, that sum could then be forfeit.
Notwithstanding any apparent nostalgia on my part, this post is about the unavoidable point that Breach of the Peace provisions have, in fact, been modernised. Successive judgments in the courts have narrowed the scope of this power of arrest: defining how proximate any anticipation of a breach must be before a peremptory arrest; outlining the nature of a modern breach of the peace; bringing it into line with the European Convention on Human Rights. These cases all have limited what police officers can hope to rely upon.
R v HOWELL
A breach of the peace is defined for our times in the Court of Appeal ruling in the case of HOWELL from 1982. This judgment brought together in one binding Appeal verdict various other legal rulings, putting them in modern form –
“Behaviour that caused a constable to believe that a Breach of the Peace had or would occur had to be related to violence and such a breach occurred whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance.”
The court also confirmed that the police have a power to arrest without warrant wherever a Breach of the Peace is committed in front of the officer making the arrest, where there is a likelihood that the Breach would continue or be renewed and, where no Breach of the Peace had yet occurred, where the officer reasonably believed that it was imminent. Outside of this, officers could be acting illegally, as they were found to be in the case of FOULKES v Chief Constable of Merseyside.
HICKS et al v THE COMMISSIONER
One of the biggest developments in a long whilse came in the case of HICKS versus the Metropolitan Police Commissioner, which reached the Court of Appeal in early 2014 but is already pending a further appeal to the Supreme Court. This is one of the most complicated judgments I have ever read – I think I did it three times, in full, before it started to sink in and although it is nothing to do with mental health law, it seems to have bearing upon how the police use this power as a proxy for them lacking powers under the Mental Health Act 1983 in private premises.
In the case of HICKS, protestors at the wedding of the (now) Duke and Duchess of Cambridge were arrested by Metropolitan Police officers whilst heading towards an assembly where the officers anticipated there would be a Breach of the Peace. They were detained in custody for a several hours and once the wedding concluded and the assembly dispersed, they were released without being brought before the Magistrate. It has been the case for many years that the police must release someone from custody if the likelihood of the breach recurring is eliminated. Civil action was brought against the Commissioner to argue that detention was incompatible with human rights law, specifically Article 5 of the European Convention.
The particular argument was that police officers cannot arrest under these Common Law provisions unless they have an intention to bring the person before the Magistrate. I’ll let you digest the specific details of the challenge and judgment for yourself if you are more interested: suffice to say here that the Court of Appeal accepted that the police had such an intention at the point of arrest but the need for this dissipated once the Breach of the Peace was over. The HICKS case is due to be heard by the Supreme Court in a further Appeal, later in 2015.
So what’s all this have to do with policing, mental health and criminal justice?! The police have often found themselves using Breach of the Peace powers in various situations, but especially in private premises where they have no options under the Mental Health Act itself. This includes incidents where vulnerable people are harming themselves in their own homes or threatening to do so – Breach of the Peace has been seen as just one of several options with which to improvise your way through a difficult incident. One of the often-asked questions is whether a person in their own home, intent on injuring only themselves is committing a Breach of the Peace? The definition indicates a person being put in fear of violence: it has always been my view that Breach of the Peace doesn’t cover incidents of self harm where no-one else is put at risk.
Do you remember reading on this BLOG about the Ten Minute Rule motion put forward in the last Parliament by Sir Paul BERESFORD MP? – he had spent an evening working with the Metropolitan Police and found himself on the 14th floor of a Wandsworth tower block in the midst of a mental health crisis incident. His experience of seeing the legal difficulties faced in safeguarding a vulnerable person who was at obviously a risk to herself led him to walk into the House of Commons and propose changing the Mental Health Act 1983. His motion was, in effect, sidelined because of the Government were engaged in a formal review of all police parts of the MHA and his proposal was already under active consideration but in the end, the Government advised against changing either s135 or s136 to allow for intervention by the police in private premises. So how did the Metropolitan Police resolve the otherwise unresolvable incident? Yes – by arguing that they anticipated a Breach of the Peace, which may or may not have been occurring. Subsequent to this appeal, the Code of Practice (2015) to the Mental Health Act stipulated (in paragraph 16.29) that officers should not use Breach of the Peace powers in preference to s135 of the Act. Good luck getting an AMHP at no notice to make that work!
So Breach of the Peace is actually a far narrower, much more limited power in the early twenty-first century than we might imagine; and you only have to search about on the internet to find solicitors who specialise in challenging police misuse of this provision. It has long since been noticeable that custody sergeants have challenged arresting officers about the breaches they bring to custody and what is really important is that unmet mental health demand is not masked by police officers improvising their way through an incident, fudging legal powers that have long since been clarified by the Courts. To do so, is to fail to do our utmost for vulnerable people who really need mental health crisis care and it is to ensure that mental health services never truly understand the nature and variety of their demand.
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