Many police practitioners will pause on learning that they are instructed in a case involving an arrest for breach of the peace. The reason being - that the law on when an arrest can be made is not always well understood by arresting officers. That is not to be discourteous to the police. Rather, it is a recognition of how complicated this issue can be. The Supreme Court in the case of R (Hicks) v Comr Metropolitan Police [2017] UKSC 9 gives some assistance to the police where they seek to arrest persons in light of an imminent breach of the peace and provides a simpler statement of the law than did the Court of Appeal.

For a discussion on the decision of the Court of Appeal, see George Thomas’ case comments here on the police blog.

It has been just over ten years since the major decision of R (Laporte) v CC Gloucestershire [2006] UKHL 55; [2007] 2 AC 105, which considered what could amount to a breach of the peace. It was something that involved harm to a person or their property in their presence or some other form of violent disorder or disturbance - necessarily involving a criminal offence: para 111.

The case stated that a police officer may arrest a person when a a breach of the peace is imminent. But, as was stated in Foulkes v Chief Constable of Merseyside Police [1998] EWCA Civ 938; [1998] 3 All ER 705 “[t]here must… be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully.” Arrest will be lawful only if it is a necessary and proportionate response to the risk.

A police officer’s power to arrest for a breach of the peace, whether imminent or actual, is at common law, not PACE. The case of Hicks considers the circumstances in which the police may arrest a person when a breach is imminent - and sets out the compatibility of this with ECHR article 5.

To remind - article 5 states as follows:

1. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

3. Everyone arrested and detained in accordance with the provision of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Here, the police arrested a number of individuals on 29th April 2011, which was the day of the royal wedding, took them into police custody and released them without charge once the pageant was over. The justification was that the arrests were said to be necessary to prevent an imminent breach of the peace - the violent disruption of the wedding. No-one was brought before a court as foreseen by article 5(1)(c).

As George Thomas noted in the earlier blog post, the Court of Appeal (in its decision reported at [2014] EWCA Civ 3; [2014] 1 WLR 2152) said that the arrest of a person for a breach of the peace could be lawful under Article 5(1)(c), provided that at the time of the arrest there was an intention to take the arrested person before the courts. If the person could be released before it was practicable to give effect to the intention then this did not undermine the lawfulness of the arrest.

The Court of Appeal declined to follow the majority decision of the fifth section of the ECHR in Ostendorf v Germany [2013] ECHR 197; (2013) 34 BHRC 738. In that case, a person was arrested, detained and then released after one hour, pursuant to public security legislation that permitted a person’s being taken into custody to prevent an imminent commission of a criminal offence. The majority of the court held that article 5(1)(c) permitted only pre-trial detention, not custody for preventative purposes and that the purpose of bringing a person before a court was for the purpose of trial rather than to determine the legality of the preventative detention. The minority disagreed and said that a person could be brought before a court to determine the lawfulness of the detention itself.

In a single, fairly brief judgment, the Supreme Court in Hicks also followed the minority. It said that the fundamental principle underlying article 5 was to protect the individual from arbitrary detention. Article 5 was not to be interpreted in such a way as would make it impractical for the police to perform their duty to maintain public order and protect the lives and property of others: para 29. Here, there was nothing arbitrary about the decisions to arrest. They were taken in good faith and were proportionate. The detention was for a relatively short period of time - too short for it to be practical to bring the persons before a court, where this was reasonably considered to be necessary for the purpose of preventing violence. Not to permit this, the Supreme Court said, would severely hamper practical policing: para 31.

Accordingly, preventative arrest and detention to prevent an imminent breach of the peace was lawful and in accordance with article 5(1)(c).

The decision of the Court of Appeal - that relied on an an arresting officer’s having at the time of arrest an intention take the person to a court - had been criticised by the appellants as “contrived”. The Supreme Court did not follow it. Instead, it said that arrest for the purpose of bringing a person before the court was implicitly dependent on the cause for detention continuing long enough for this to be done. It was enough if the lawfulness of detention could then subsequently be challenged in a court. As it was here. 

As a matter of practical reality, this must be preferable for police officers - and for courts. Otherwise judges or juries, would be faced with police officers giving evidence in each future civil action involving arrest for imminent breach of the peace that they had the intention to take the person to the magistrates’ court. This would have involved another mental exercise for police officers to perform before arrest - and on which to attack its lawfulness. It will, from now on, no longer be necessary to resolve such a question of fact and credibility. Still important, however, will be for how long the person was detained and the practicability of presenting them to the magistrates’ court.

Officers should not forget:

- there must be sufficiently real and present threat to the peace to justify the extreme step of depriving of a person of their liberty when they are not at the time acting unlawfully;

- the apprehension of the breach must relate to the near future;

- arrest or restraint without arrest may be unlawful if disproportionate and if there are less drastic means of preventing a breach;

- continued detention will be lawful only for such period as is necessary to prevent a breach recurring;

- the obligation to bring an arrested person before a court remains - and this must be done as soon as reasonably practicable. Failure to do so may result in unlawful detention.

At the present time, therefore, the law is that the police may, depending on the circumstances, arrest and detain a person to prevent an imminent breach of the peace without having, at the moment of arrest, the intention to bring them to court. Such an arrest and detention should be lawful under article 5(1)(c).