A breach of the peace is an act (or the threat of an act) that harms a person as a result of violence, or is likely to cause such harm, or makes a person fear such harm. The belief that actual harm is likely to occur must be reasonable.
The courts have defined “actual harm” to mean harm to a “person’s body or property” (R v Howell (Errol) 1982). There should be a “wrongful” or unlawful act, such as an assault or riot, leading someone to be harmed, or to fear harm, before the police can make an arrest for breach of the peace.
Police officers (and ordinary citizens) can arrest people committing a breach of the peace in their presence, or those they reasonably think will commit a breach of the peace in the immediate future, or who have committed a breach of the peace and are likely to do it again. To comply with human rights law, the purpose of arrest must be to bring the perpetrator before a “competent legal authority”. No warrant is required, and a breach of the peace can take place on private or public property. When the police believe a breach of the peace is likely to happen in the immediate future, they can use their powers only when the breach is imminent. Judicial Review proceedings may be brought against the police if their actions contravene these requirements.
Breach of the peace is governed by common law. Common law, also referred to as case law, is made by judges and developed in the cases that come before the courts over time. (This is in contrast to statutory law, which is written law passed by Parliament.) It means that there are no specific, relevant extracts of written legislation for common law.
Case law tells us that the police must exercise their breach of the peace power of arrest in a way that respects people’s rights to free expression and assembly (as well as their other human rights). Arresting preachers for refusing to stop preaching because they might cause a breach of the peace, for example, was found to breach the preachers’ rights in the case of Redmond-Bate v Director of Public Prosecutions 1999. The court said the police should have used their power of arrest against the large crowd that had gathered and were showing hostility towards the women preachers, and not against the women themselves. However, the court said that if the preachers were being so provocative that someone in the crowd might – not wholly unreasonably – be moved to violence, the police would be entitled to ask the preachers to stop, and arrest them if they refused to.
Although there is a power of arrest for breach of the peace, there is no criminal offence of breach of the peace. Therefore, while someone can be arrested for breach of the peace, they cannot be prosecuted. However, they might be prosecuted for assault, violent disorder, or any other crime that led to the breach of the peace.