Breach of the Peace. Comprehensive and useful case that ties down what is a ‘breach of the peace’: must involve violence or a threat of violence. The threat of violence may come from a third party, but this must be a real risk not just a possibility. Also a criminal ‘burden of proof’ (“beyond reasonable doubt”) applies.
The reference to this case in the law journals (which you are supposed to quote in court) is [1995] 3 All E.R. 124, which you read out as, “year 1995, volume 3, All England Reports, page 124.”
Lindis Percy repeatedly trespassed on a military base (RAF Alconbury, Cambridgeshire) in 1992, and was eventually arrested and charged with ‘breach of the peace’. She was found guilty by Huntingdon magistrates, partly on the strength of an earlier case in which Lord Denning seemed to equate any disruption or obstruction of a worker with breach of the peace.[note] Lindis Percy appealed to the Divisional Court by ‘case stated’ (i.e. on a matter of law). The Divisional Court upheld her appeal: this is the judgment of that court.
A lot of the judgment is taken up with an overview of breach of the peace, and the magistrates’ powers to bind over in general (see further notes on this below). The crucial conclusions are as follows:
•there must be violence or a threat of violence for a breach of the peace;
•the violence (or threat) can be from a third party (i.e. provoked by the defendant’s actions), but this must be a “real risk,” not a vague possibility;
•the case must be proved “beyond reasonable doubt.”
Taking each of these points in more detail. . . .
Violence or a threat of violence
Lord Denning had stated in an earlier breach of the peace case that any disruption or obstruction of a worker could amount to a breach of the peace.[note] In contrast, this case firmly establishes the principle that there must be “violence or a threat of violence” to convict:
In our judgment, breach of the peace is limited to violence or threats of violence as set out in R v Howell and any observations which may indicate something wider ought not to be followed. (Collins J, at page 132h)
The judgment also quotes from several earlier judgments to reinforce this point, including Parkin v Norman, Valentine v Lilley:[note]
As counsel for the respondents concedes, the justices were in error in thinking that a mere disturbance not involving violence or a threat of violence could amount to a breach of the peace. (McCullough J, from Parkin v Norman &c, quoted at page 132a)
The judgment also quotes extensively from R v Howell, reference [1981] 3 All E.R. 383 and [1982] Q.B. 416, for instance:
we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. (Watkins LJ, from R v Howell, quoted at page 131h)
This quotation is followed by the conclusion:
harm to property will constitute a breach of the peace only if done or threatened in the owner’s presence because the natural consequence of such harm is likely to be a violent retaliation. (Collins J, at page 131j)
Third party violence
It is a general rule of law that you cannot be held responsible for someone else’s action, but this does not apply for breach of the peace, where it is often stated that any action which provokes violence in another person can amount to a ‘breach of the peace’.
This judgment upholds this (dangerous) exception, but limits it. The following quotation sets out when tempting or provoking third party violence can add up to a breach of the peace, and when it cannot:
In our judgment, there had to be a real risk, not a mere possibility of a breach of the peace . . . . The finding in the case that the appellant’s conduct ‘could have’ provoked others to violence, apart from being unsupported by the evidence, is in our view too vague to justify making any [binding over] order. We regard it as highly improbably that the non-violent acts of trespass committed by the appellant would provoke trained personnel to violent reaction. (Collins J, at page 133d–e)
The last sentence should be very relevant for TP cases generally.
Proof “beyond reasonable doubt”
This may sound like a technical legal point, but it could be crucial in a trial. It is all to do with the standard of proof required. For most criminal cases, the prosecution have to prove their case “beyond reasonable doubt” to convict. For civil cases (i.e. where individuals take each other to court), the proof only has to be “on the balance of probabilities” — which is obviously far easier to prove.
The flowchart is also available for download in [PDF format] and in [FIG format].
Now, breach of the peace is not a criminal charge. It is not classified as either “civil” or “criminal” in the courts. To (perhaps) understand why, look at the flowchart, which illustrates the arrest–trial–conviction procedures for minor crimes:[note]
As you can see, the language and process for breach of the peace is different. It is not a statutory offence or crime, but is based on an ancient (medieval) power of Justices of the Peace (a.k.a. magistrates).
Because of the anomalous nature of breach of the peace cases, the CPS have sometimes said that the civil standard of proof only is required (“on the balance of probabilities”). This case should stop that: it states that, because a prison sentence is a possible outcome, the criminal standard applies.
In our judgment, the consequences and circumstances of the proceedings require proof to a high standard.
Accordingly, whatever the nature of the proceedings, we consider that the proper standard to be applied is the criminal standard, namely proof beyond reasonable doubt. (Collins J, at page 134c)
Just in case the Percy case is not sufficient,[note] there is a useful case from the European Court of Human Rights. It is Steel et al v United Kingdom, 1999 and its reference is 28 EHRR 603.
This is a complex case involving 5 different applicants, who had been arrested for breach of the peace on 3 different actions. 3 of the applicants won their case (proving that their original arrest and detention had been unlawful—the charges had been dropped before they were taken to court), and the other 2 lost their case. However, in reaching its decisions, the European court relied on the Howell and Percy cases to establish a definition of ‘breach of the peace’.
In this connection, the Court observes that the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. (Judgement of European Court of Human Rights, at paragraph 55)
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 11/12/2001
(See the changelog and authorship page for revision details.)