Breach of the peace

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Breach of the peace or disturbing the peace is a legal term used in constitutional law in English-speaking countries and in a public order sense in the United Kingdom. It is a form of disorderly conduct.

Contents

Public order

England, Wales and Northern Ireland

In England and Wales, theoretically all criminal offences cognizable by English law involve "a breach of the King's peace", and all indictments formerly concluded "against the peace of our Lord the King, his crown and dignity" before the passage of the Indictments Act 1915 and the Rules that formed that Act's first schedule. [1] The conclusion has also found its way into constitutional law in many United States state constitutions, which mandate that indictments within the state end in a similar manner to the above, usually omitting the "crown" part or substituting "government". For example, New Jersey's is "against the peace of this State, the government and dignity of the same". [2]

Historically that concluding phrase, now legally superfluous, represents the last trace of the process by which the royal courts assume jurisdiction over all offences, and gradually eroded the jurisdiction of the sheriff and of lords of manor and franchises, making crime a matter of national concern as distinguished from civil wrongs or infractions of the rights of local magnates. The Peace of the King was sworn on his accession or full recognition, and the jurisdiction of his courts to punish all violations of that peace was gradually asserted. The completion of this process is marked by the institution of the office of Justice of the Peace. [3]

In England, Wales and Northern Ireland, breach of the peace is descended from the Justices of the Peace Act 1361, [4] which refers to riotous and barratous behaviour that disturbs the peace of the King. More modern authority defines a breach of the peace as "when a person reasonably believes harm will be caused, or is likely to be caused, to a person or in his presence to his property, or a person is in fear of being harmed through an assault, affray, riot, unlawful assembly, or some other form of disturbance". [5]

The breach of the peace power of arrest is provided by the common law and therefore an 'any person' power of arrest and entry both within the same definition. [6] [7] [8] [9] [10]

Section 17(5) of the Police and Criminal Evidence Act 1984 (PACE) abolished all powers of a Constable to enter under the common law with the specific exception (subsection 6) when dealing with or preventing a common law breach of the peace. This "offence" definition and power of arrest are contained under the common law definition of "breach of the peace". Breach of the peace powers are unusual in the fact they originate from the laws Alfred the Great consolidated into the common law approximately 1,000 years before the modern constable was thought up. The first legislative reference to the common law breach of the peace was under the Justice of the Peace Act 1361. [11]

In England and Wales, breach of the peace is a civil proceeding (rather than a criminal offence), although the case must be proved to the criminal standard of proof, 'beyond reasonable doubt', rather than the civil standard of proof, 'on the balance of probabilities'. Sometimes the Crown Prosecution Service conduct the case on behalf of the police, but the police service is liable for any costs awarded in favour or against the prosecutor. [12] Breach of the peace is not an offence, in the sense that it is not punishable either by a fine or imprisonment either at statute or common law and nor do proceedings for breach of the peace give rise to any conviction. [13] In England and Wales, constables (or other persons) are permitted to arrest a person to "prevent a further breach of the peace" which allows for the police or the public to arrest a person before a breach of the peace has occurred. This is permitted when it is reasonable to believe should the person remain, that they would continue with their course of conduct and that a breach of the peace would occur. [14]

The only immediate sanction that can be imposed by a court for breach of the peace is to bind over the offender to keep the peace: that is, justices of the peace can require a person to enter into a recognizance to keep the peace. Any punishment (in the sense of a loss of freedom or permanent financial penalty) takes the form of loss of the surety if the defendant fails to keep the peace or be of good behaviour during the period for which he is bound over. The binding over itself does not amount to a conviction (but any following behaviour causing loss of the surety might well result in conviction for an associated offence). A failure to enter into a recognizance may of itself lead to a person being committed to custody under s.115(3) Magistrates' Courts Act 1980.

Nowadays a person causing a public disturbance may be arrested for, and/or charged with, causing harassment, alarm or distress contrary to the Public Order Act 1986.

Scotland

There are major differences between English law and Scots law with respect to dealing with breach of the peace; unlike England and Wales where criminal penalties apply to the behaviour leading to or liable to cause a breach of the peace, it is a specific criminal offence in Scotland which is prosecuted daily in the sheriff courts and due to its common law definition it can be applied to a number of scenarios. The maximum punishment if a case is remitted to the High Court remains imprisonment for life although such severe punishment is now rarely applied, usually being associated with breaches of licence during an existing life sentence.

Breach of the peace consists of "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". [15]

A constable may arrest any person, without warrant, who commits a breach of the peace. A member of the public may not arrest a person for behaviour which amounts to no more than a breach of the peace (i.e. an arrest is not always for the offence for which someone is eventually prosecuted but can be for a more serious crime that appears to be occurring).

Breach of the peace can include, but is not limited to, any riotous behaviours (which includes "rowdiness" or "brawling") and any disorderly behaviour. This behaviour need not be noisy but still of a nature that would cause concern to other people. Examples include persistently following someone, delivering threatening letters and "streaking" or "mooning".

One of the leading cases in Scots law is that of Smith v Donnelly, a case concerning a Faslane protester. [16]

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 created an offence of behaving in a threatening or abusive manner in a way likely to cause a reasonable person to suffer fear or alarm, similar to the Section 5 Public Order act in England and Wales. This subsists alongside breach of the peace.

United States

In the United States, prosecutions for breach of the peace are subject to constitutional constraints. In Terminiello v. City of Chicago (1949), the United States Supreme Court held that an ordinance of the City of Chicago that banned speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First Amendment to the United States Constitution. [17] Justice Douglas stated: "Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea." [18]

In Cox v. Louisiana (1965), the Supreme Court held that a Louisiana statute criminalizing breaches of the peace was unconstitutionally vague and overbroad because it would allow persons to be prosecuted for expressing unpopular views. [19] The statute read in part:

Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby ... crowds or congregates with others ... in or upon ... a public street or public highway, or upon a public sidewalk, or any other public place or building ... and who fails or refuses to disperse and move on ... when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person ... shall be guilty of disturbing the peace. [20]

On the state level, at least one court has reasoned that the essence of a breach of the peace was the potential to cause a disruption in tranquility or to promote the threat of violence, stating that a breach of the peace was that which "disturbs or threatens to disturb the tranquility enjoyed by the citizens". [21] [22]

See also

Related Research Articles

In the terminology of law, an assault is the act of causing physical harm or unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Additionally, assault is a criminal act in which a person intentionally causes fear of physical harm or offensive contact to another person. Assault can be committed with or without a weapon and can range from physical violence to threats of violence. Assault is frequently referred to as an attempt to commit battery, which is the deliberate use of physical force against another person. The deliberate inflicting of fear, apprehension, or terror is another definition of assault that can be found in several legal systems. Depending on the severity of the offense, assault may result in a fine, imprisonment, or even death.

<span class="mw-page-title-main">Affray</span> Public fight that disturbs the peace

In many legal jurisdictions related to English common law, affray is a public order offence consisting of the fighting of one or more persons in a public place to the terror of ordinary people. Depending on their actions, and the laws of the prevailing jurisdiction, those engaged in an affray may also render themselves liable to prosecution for assault, unlawful assembly, or riot; if so, it is for one of these offences that they are usually charged.

<span class="mw-page-title-main">Arrest</span> Law enforcement action

An arrest is the act of apprehending and taking a person into custody, usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in a criminal justice system, sometimes it is also done after a court warrant for the arrest.

A citizen's arrest is an arrest made by a private citizen – a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.

The legal term peace, sometimes king's peace or queen's peace, is the common-law concept of the maintenance of public order.

An anti-social behaviour order is a civil order made in the United Kingdom against a person who had been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders were introduced by Prime Minister Tony Blair in 1998, and continued in use until abolished in England and Wales by the Anti-Social Behaviour, Crime and Policing Act 2014 on 20 October 2014—although they continue to be used in Scotland and Northern Ireland. ASBOs were replaced in England and Wales by the civil injunctions and criminal behaviour orders. They were designed to address behaviours like intimidation, drunkenness, and violence by individuals and families, using civil orders rather than criminal sanctions. The orders restricted behaviour in some way, such as: prohibiting a return to a certain area or shop; or restricting public behaviours, such as swearing or drinking alcohol. Many saw the ASBOs as connected with young delinquents.

Unlawful assembly is a legal term to describe a group of people with the mutual intent of deliberate disturbance of the peace. If the group is about to start an act of disturbance, it is termed a rout; if the disturbance is commenced, it is then termed a riot. In England, the offence was abolished in 1986, but it exists in other countries.

<span class="mw-page-title-main">Police and Criminal Evidence Act 1984</span> United Kingdom legislation

The Police and Criminal Evidence Act 1984 (PACE) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary to issue Codes of Practice governing police powers. The aim of PACE is to establish a balance between the powers of the police in England and Wales and the rights and freedoms of the public. Equivalent provision is made for Northern Ireland by the Police and Criminal Evidence Order 1989 (SI 1989/1341). The equivalent in Scots Law is the Criminal Procedure (Scotland) Act 1995.

Harassment, alarm or distress is an element of a statutory offence in England and Wales, arising from an expression used in sections 4A and 5 of the Public Order Act 1986, which created the offence. The Act was amended in 1994.

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In the law of England and Wales and some other common law jurisdictions, binding over is an exercise of certain powers by the criminal courts used to deal with low-level public order issues. Both magistrates' courts and the Crown Court may issue binding-over orders in certain circumstances.

<span class="mw-page-title-main">Crime and Disorder Act 1998</span> United Kingdom legislation

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<span class="mw-page-title-main">Criminal Law Act 1967</span> United Kingdom legislation

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Scots criminal law relies far more heavily on common law than in England and Wales. Scottish criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences including mobbing and breach of the peace. Scottish criminal law can also be found in the statutes of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appearing identical on both sides of the Border. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 and Prostitution (Scotland) Act 2007 which only apply to Scotland. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England or in civil cases in Scotland. Scots law is one of the few legal systems that require corroboration.

The powers of the police in Scotland, as with much of Scots law, are based on mixed elements of statute law and common law.

The powers of the police in England and Wales are defined largely by statute law, with the main sources of power being the Police and Criminal Evidence Act 1984 and the Police Act 1996. This article covers the powers of police officers of territorial police forces only, but a police officer in one of the UK's special police forces can utilise extended jurisdiction powers outside of their normal jurisdiction in certain defined situations as set out in statute. In law, police powers are given to constables. All police officers in England and Wales are "constables" in law whatever their rank. Certain police powers are also available to a limited extent to police community support officers and other non warranted positions such as police civilian investigators or designated detention officers employed by some police forces even though they are not constables.

<span class="mw-page-title-main">Justices of the Peace Act 1361</span> United Kingdom legislation

The Justices of the Peace Act 1361 is an act of the Parliament of England. The Act, although amended, remains enforceable in England and Wales as of 2022.

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<i>Brooker v Police</i>

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<span class="mw-page-title-main">Anti-Social Behaviour, Crime and Policing Act 2014</span> United Kingdom legislation

The Anti-Social Behaviour, Crime and Policing Act 2014 is an Act of the Parliament of the United Kingdom which consolidated and expanded law enforcement powers in addressing anti-social behaviour. One significant aspect of the act is that it replaced anti-social behaviour orders, the primary civil order in the United Kingdom since 1998, with criminal behaviour orders.

References

  1. ↑ "Indictments Act 1915" (PDF). Legislation.gov.uk. Retrieved 2 July 2015.
  2. ↑ "New Jersey State Constitution". Njleg.state.nj.us. Archived from the original on 30 June 2009. Retrieved 14 June 2015.
  3. ↑ Wikisource-logo.svg One or more of the preceding sentences incorporates text from a publication now in the public domain :  Chisholm, Hugh, ed. (1911). "Peace, Breach of the". Encyclopædia Britannica . Vol. 4 (11th ed.). Cambridge University Press. p. 16.
  4. ↑ "Justices of the Peace Act 1361". Opsi.gov.uk. Archived from the original on 16 April 2009. Retrieved 2 July 2015.
  5. ↑ R. v. Howell [1982] QB 416
  6. ↑ "Context of the Police and Criminal Evidence Act 1984 in gaining access to an adult suspected of being at risk of neglect or abuse: a guide for social workers and their managers in England". SCIE.
  7. ↑ R v Howell 1982 (E/W case law)
  8. ↑ "Arrest and detention—overview - Lexis®PSL, practical guidance for lawy..." www.lexisnexis.com.
  9. ↑ Birtles, William (1973). "The Common Law Power of the Police to Control Public Meetings". The Modern Law Review. 36 (6): 587–599. doi: 10.1111/j.1468-2230.1973.tb01388.x .
  10. ↑ Department, Law Lords. "House of Lords – R (on the application of Laporte) (FC) (Original Appellant and Cross-respondent) v. Chief Constable of Gloucestershire (Original Respondent and Cross-appellant)". publications.parliament.uk.
  11. ↑ "Justices of the Peace Act 1361". www.legislation.gov.uk.
  12. ↑ "Binding Over Orders". Crown Prosecution Service. Retrieved 26 May 2018.
  13. ↑ R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 KB 670, per Lord Goddard, CJ; Williamson v. Chief Constable of West Midlands Police [2004] (1 WLR 14, per Dyson, LJ)
  14. ↑ "Your rights – Other Police Powers to Restrict Right to Protest". Yourrights.org.uk. Archived from the original on 9 April 2010. Retrieved 14 June 2015.
  15. ↑ Smith v Donnelly 2002 J.C. 65 or 2001 S.L.T. 1007 or 2001 S.C.C.R. 800 (Confirmed with full bench decision in Jones v Carnegie 2004 S.L.T. 609 or 2004 S.C.C.R. 361)
  16. ↑ "Smith v Donnelly (Procurator Fiscal, Dumbarton) ScotHC 121 (28 September 2001)". Bailii.org. Retrieved 14 June 2015.
  17. ↑ Terminiello v. City of Chicago , 337 U.S. 1 (1949).
  18. ↑ Terminiello, 337 U.S. at 4.
  19. ↑ Cox v. Louisiana , 379 U.S. 536, 551 (1965).
  20. ↑ Cox, 379 U.S. at 544 (quoting La. Rev. Stat. § 14:103.1 (Cum. Supp. 1962)).
  21. ↑ Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685, 687 (1948)
  22. ↑ Head v. State, 131 Tex. Crim. 96, 96 S.W.2d 981, 982 (1936)).

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