Breach of Peace Flashcards
What legislation covers Breach of the Peace?
Civil law
In what 3 instances does a breach of the peace occur?
When an act is done or threatened to be done which:
1) harms a person or, when in their presence, their property;
2) which is likely to cause such harm
3) which puts someone in fear of such harm
Does common law provide for a power of arrest in respect of Breach of the Peace?
Yes, which can be conducted by constables or the public (citizen’s arrest)
Does common law provide for a power to intervene or detain by force in respect of Breach of the Peace?
Yes, which can be conducted by constables or the public (citizen’s arrest)
On what grounds may an arrest/intervention/detention by force take place in respect of Breach of the Peace?
When there is a need to prevent any action likely to result in a breach of the peace, either in public or private
Where can a Breach of the Peace take place?
Either in public or private
Is Breach of the Peace a criminal offence under domestic law?
No, it is a civil matter dealt with by way of complaint
Under what specific circumstances might Breach of the Peace constitute a criminal offence under domestic law?
When it is considered in respect of the European Convention on Human Rights
What must be remembered if a person is arrested in respect of Breach of the Peace?
They are not in detention for the purposes of Section 118 of PACE and : . usual bail provisions do not apply
What two situations most likely follow an arrest/detention under Breach of the Peace?
1) the person is detained and placed before the next available court OR
2) the person is detained until there is no further likelihood of a reoccurrence of the breach of the peace
How should people arrested/detained for Breach of the Peace be treated under best practice?
They should be treated in accordance with PACE and cautioned
What are the police entitled to do in respect of a Breach of the Peace in any premises, public or private?
To enter premises and remain there in order to prevent a breach of the peace
If a breach of the peace takes place on private property, it is necessary to a charge of BoP to show that disturbance affected members of the public outside the property?
No - it is not necessary to show the public were disturbed however the presence of the public is a relevant factor in dealing with the offence
What anticipatory power do the police have under common law in respect of Breach of the Peace?
They are allowed to prevent people travelling to certain location where their presence gives reasonable grounds to expect a BoP
When should police use the anticipatory power of preventing BoP by imposing restrictions on the movements of others but falling short of arrest?
ONLY if there is an imminent threat to public order
What MUST the police exercise in respect of their powers re BoP
DISCRETION!
When exercising discretionary powers in respect of BoP, who must police officers focus their attention on?
Those who are likely to present the actual threat of violence or disorder - this is not always the original agitator
Under what circumstances may it be appropriate for an officer to detain those presenting a risk of BoP alongside the general public?
In extreme and exceptional circumstances where it is not possible to separate those who individually present a threat from those who are part of a larger crowd AND where there is an imminent threat of BoP and no other means can be used to prevent it
Under what circumstances may the police curtail the lawful exercise of individual’s right of freedom of expression?
As a matter of necessity, where they reasonably believe there is no other means to prevent a BoP
What 3 qualities must any discretionary action by the police to prevent an imminent BoP demonstrate?
The action must be
1) Reasonably necessary
2) Proportionate
3) Taken in good faith
Can reasonably force be used by the police as part of discretionary action taken to prevent BoP?
Yes - so long as the BoP is imminent
Is it legitimate for officers to make arrests on the basis of BoP when given orders to do so by senior officers?
Yes - so long as the senior officers have good reason to believe there to be a strong likelihood of BoP unless such action is taken
Where is it particularly important for immediacy to be considered in respect of BoP?
In respect of BoP within the domestic setting
When might an arrest for BoP be lawful in respect of the domestic setting?
Where there is a risk of a BoP taking place with relative immediacy without arrest i.e. an assault taking place unless an arrest is made
If a person suspected of being likely to conduct violence in the domestic setting is willing to leave the premises, would their arrest for BoP be lawful?
Yes - so long as there is a reasonable belief that the person would immediately return to cause harm/damage unless an arrest is made
What is the first legitimate power of arrest for any constable or civilian arresting another for BoP under common law?
1) a breach of the peace is committed in their presence
What is the second legitimate power of arrest for any constable or civilian arresting another for BoP under common law?
2) the person doing the arrest reasonably believes a BoP will be committed in the immediate future by the defendant
What is the third legitimate power of arrest for any constable or civilian arresting another for BoP under common law?
3) A BoP has been committed/is reasonably believed to have occurred by the arresting individual AND a further breach is threatened
In what two circumstances may an arrest for BoP be deemed lawful under Article 5(1)(c) of the European Convention on Human Rights?
1) When the arrest is made for the purpose of bring the person before a competent legal authority
2) When the person is released before they could practically be brought before a court
May the power of arrest be effected on private property even if there is no other member of the public present?
Yes - actual disturbance of the public does not have to be proved for BoP
What is the first necessary criteria needed to exist before the power of arrest for BoP can be used?
1) To justify arrest there must be the clearest of circumstances and a real and present threat to the peace
What is the second necessary criteria needed to exist before the power of arrest for BoP can be used?
2) The threat of BoP must be coming from the person who is ultimately arrested
What is the third necessary criteria needed to exist before the power of arrest for BoP can be used?
3) The conduct of the person(s) posing the BoP risk must be clearly interfering with the rights of another
What is the fourth and final necessary criteria needed to exist before the power of arrest for BoP can be used?
4) the person’s conduct must be unreasonable
Where a BoP has not yet occurred what should a constable do before using the power of arrest?
Set out the condition that must be met with PAW
Persuade
Advise
Warn
When is the ONLY time you should charge with BoP?
ONLY when no other offence is available
