Public order law - Breach of the peace

Learning Outcomes

This article examines the common law concept of breach of the peace within UK public order law, including:

• Definition of breach of the peace and its status as a non-offence triggering police powers rather than criminal liability
• Nature and scope of police and citizen powers, including legal tests of imminence and necessity for arrest and entry
• Preventative focus of breach of the peace powers and distinctions from statutory public order offences
• ECHR implications—proportionality, necessity, and compatibility with Articles 5, 10, and 11
• Enforcement mechanisms, including binding over and related criminal offences
• Interaction with judicial superintendence and public accountability in protest and assembly contexts
• Application to practical scenarios—assessment of justified and potentially unlawful police actions

SQE1 Syllabus

For SQE1, you are required to understand the common law concept of breach of the peace and its application within UK public order law, with a focus on the following syllabus points:

• Understanding the definition of breach of the peace at common law, including the precise elements resulting from judicial authority.
• Knowing the circumstances in which police officers, or members of the public, may intervene to prevent a breach or a threatened breach of the peace, including powers of arrest, detention, entry, and dispersal.
• Recognising the principle of imminence: evaluating how and when the threat must be proximate in time and place for intervention to be justified.
• Analysing the interaction between common law breach of the peace and statutory offences under public order legislation, including distinctions from conduct criminalised under the Public Order Act 1986.
• Understanding the operation and limitations of binding over orders and their civil nature.
• Appreciating the requirement for police and courts to act compatibly with the Human Rights Act 1998 and the European Convention on Human Rights (ECHR), and evaluating the effect of jurisprudence on the scope of police action.
• Applying the law of breach of the peace to scenarios involving rights of protest, policing of public and private space, and the enforcement of the peace at the interface of civil liberty and public order.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which case provides the leading definition of breach of the peace at common law?
2. True or false? A police officer needs specific statutory authority to arrest someone to prevent an imminent breach of the peace.
3. Can a police officer lawfully enter private premises without a warrant if they reasonably apprehend an imminent breach of the peace is occurring inside?
4. Under what circumstances might police action to prevent a breach of the peace, such as kettling, potentially conflict with ECHR rights?

Introduction

Breach of the peace is a central concept in English common law and public order. Although not itself a criminal offence, it establishes a legal basis for intervention by police and private citizens to quell or prevent imminent violence or disorder. The powers it confers have a preventative, not punitive, purpose, sitting alongside statutory public order offences and governed by principles of restraint and proportionality. Understanding this area requires not only an understanding of its legal elements but also an ability to balance the preservation of public order with the protection of individual rights under the Human Rights Act 1998 and the ECHR.

Defining Breach of the Peace

The modern common law definition of breach of the peace derives from R v Howell [1982] QB 416, in which the Court of Appeal set out a comprehensive statement of when public order intervention is justified:

Key Term: Breach of the peace
Conduct which causes actual harm to a person, or in their presence to their property, or is likely to cause such harm, or puts a person in fear of such harm being done.

This definition contains several key ingredients:

• Acts of violence or threatened violence directed at a person, or at property in their presence.
• Conduct that is likely to result in such harm or that places a person in fear of imminent harm.

Importantly, the type of harm contemplated includes not only physical violence but also conduct which provokes a realistic fear that violence will occur. The fundamental test is objective: would the ordinary observer, in the circumstances, apprehend that harm is likely to happen, or is about to occur?

The courts have clarified that breach of the peace encompasses not just actual violent outbreaks but also conduct that provokes a hostile response, such as inciting a crowd to violence or behaviour that has the natural consequence of provoking others to violence. Mere words, unless accompanied by an actual or likely threat of violence or very serious intimidation, are generally insufficient.

Key Term: Imminence
For police or others to act preventatively in relation to a breach of the peace, the threat of harm must be proximate in time and place—immediate or about to occur—not remote or speculative.

Worked Example 1.1

Two groups of rival football fans are shouting insults at each other outside a pub. No physical violence has occurred, but the atmosphere is tense, and several bystanders look visibly frightened. A police officer observes the situation. Does this scenario potentially involve a breach of the peace?

Answer:
Yes. Although no actual harm has occurred, the threatening behaviour and shouting are likely to put bystanders in fear of harm (violence erupting between the groups). The situation presents a risk of escalating into violence, meeting the threshold for a likely breach of the peace under the Howell definition, as the conduct is likely to cause harm or instill fear of imminent harm.

Police Powers

The common law grants significant powers to police officers and, where necessary, private individuals to respond to breaches or threatened breaches of the peace. Unlike statutory arrest powers, these exist independently and focus on prevention, not punishment.

Power of Arrest (and Detention)

A constable may arrest a person without a warrant where:

• A breach of the peace is committed in their presence.
• They reasonably believe such a breach will occur in the immediate future.
• A breach has just occurred and is likely to be renewed.

This power is not limited to police; any citizen may lawfully intervene to the extent reasonably necessary to prevent a breach, including by restraining individuals until the threat has abated or until police arrive.

Key Term: Reasonable apprehension
There must be both subjective and objective justification for believing that a breach is imminent—facts supporting the belief that a disturbance is about to or likely to erupt.

Legal authority makes clear that the threshold for arrest is high: the threat must be "imminent" in both time and place. The case of R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105 establishes that police action must not be taken based on conjecture, historical behaviour alone, or distant threats. Police intervention is lawful only if they honestly and reasonably believe a breach is about to occur at the particular place and time.

The requirement for proximity (or "imminence") is stressed both in Howell and Laporte, ensuring that breach of the peace powers are not used to pre-emptively repress protest, suppress freedom of expression, or otherwise act outside the preventative and immediate context they are designed for.

A person may be arrested only for so long as is reasonably necessary to avert the threat. The detained individual must be released unless and until the threat abates or, if appropriate, brought before a court to be 'bound over'.

Worked Example 1.2

Police receive intelligence that a planned protest march tomorrow is likely to involve clashes between protestors and counter-protestors. Can officers arrest the organisers today to prevent a potential breach of the peace during tomorrow's march?

Answer:
No. The power to arrest to prevent a breach of the peace requires the breach to be imminent. A potential breach tomorrow is not sufficiently immediate to justify preventative arrests today based solely on the common law power related to breach of the peace. Other statutory public order powers might be relevant, but not the common law power of arrest for an anticipated breach this far in advance.

Police Power of Entry

At common law, police officers (and private individuals in limited circumstances) have a power to enter premises, including private dwellings, without a warrant if they reasonably believe it is necessary to prevent an imminent breach of the peace within. The leading authority is Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705, where the Court of Appeal confirmed that entry must be necessary, proportionate, and linked to an actual or imminent threat. The common law power of entry is a significant exception, given the high regard for the sanctity of the home in English law.

In accordance with s 17(6) Police and Criminal Evidence Act 1984, this common law power is preserved: the police may enter and remain on premises to deal with or prevent a breach of the peace, without requiring statutory authority, if the circumstances make it necessary.

Dispersal, Kettling, and Control Measures

In situations short of arrest, officers have a general duty (not just a power) to take reasonable steps to prevent a breach of the peace, including:

• Requiring persons to leave the scene or disperse if their presence threatens violence.
• Separating groups likely to come into conflict.
• Confining demonstrators within a cordon ("kettling"), if necessary and proportionate.
• Giving reasonable directions to those present in order to de-escalate tension or remove the risk.

For dispersal to be lawful, the threat must be immediate, and the measures chosen must be reasonable and proportionate in the circumstances. The courts have closely scrutinised police discretion in such matters, particularly in the context of protest policing.

Kettling (Containment)

The House of Lords confirmed in Austin v Commissioner of Police for the Metropolis [2009] UKHL 5 that "kettling" (the police practice of containing large crowds for significant periods to prevent violence from spreading) may be lawful provided its use is necessary, for a legitimate aim, and proportionate. Notably, such detention does not automatically breach the right to liberty under ECHR Article 5 if genuinely justified to control imminent disorder. Nonetheless, the authorities must constantly reassess the situation, ensuring individuals are not detained longer than absolutely necessary and that less-restrictive means are not available.

Worked Example 1.3

During a march, a group of demonstrators are kettled and prevented from leaving a public square for several hours by officers who believe that this is necessary to control violent elements within the crowd. Many in the kettle are peaceful bystanders. Can this be justified?

Answer:
Yes, in principle. Containment may be lawful where necessary to prevent an imminent breach of the peace, as in Austin. However, continued detention must be justified at all times and must be proportionate to the aim of preventing disorder: the mere presence of peaceful bystanders does not make containment unlawful, but police must continue to consider less restrictive alternatives for them.

Human Rights Implications

Breach of the peace powers are subject to the Human Rights Act 1998, which requires compatibility with the European Convention on Human Rights:

• Article 5 (Right to liberty and security): Preventative detention (such as arrest to prevent breach of the peace or kettling) is a deprivation of liberty. To comply with Article 5, such deprivation must be in accordance with law, necessary in the specific circumstances, and proportionate.
• Article 10 (Freedom of expression): Peaceful protest, even if provocative, is protected by Article 10. Police must distinguish between legitimate, peaceful protest and conduct genuinely likely to result in violent disorder.
• Article 11 (Freedom of assembly and association): Police restrictions on demonstrations or assemblies—including dispersal or arrest—must be justified by reference to a real threat of imminent disorder and must be proportionate; controls must not be used to suppress peaceful assembly.

Notable authorities illustrate this balance:

• In Redmond-Bate v DPP [2000] HRLR 249, the court held that police acted unlawfully in arresting speakers who provoked a hostile crowd: the proper response was to control those threatening violence, not curtail the speakers’ freedom of expression, absent an imminent breach.
• R (Laporte) v Chief Constable of Gloucestershire established that preventative measures must be grounded in a real and immediate apprehension of violence, not a generalised or historic risk.

Key Term: Proportionality
The principle that any restriction or interference with individual rights (e.g., via detention or dispersal to prevent breach of the peace) must be no more than necessary to achieve the legitimate aim (such as preserving order).

In all cases, authorities must show that the threat of violence was immediate, that intervention was necessary, and that the measures taken were proportionate to the risk.

Worked Example 1.4

A controversial speaker is addressing a crowd in a city centre. Tensions are rising, with some members of the crowd threatening violence in response to the speaker's views. Police order the speaker to leave to prevent a breach of the peace. Was this order lawful?

Answer:
Unless the speaker's own conduct crosses the threshold of likely violence, the proper course is to address the conduct of those threatening violence. Restricting the speaker’s rights would not generally be lawful unless there is an immediate risk that cannot be addressed by other means.

Worked Example 1.5

Police receive reports that two local gangs plan to confront each other in a park later in the day. There is no history of violence between the groups, but intelligence suggests rising tensions. May police set up cordons and prevent both groups entering the park?

Answer:
Action such as cordons or preventing entry is only lawful if the police have a reasonable and honest belief that a breach of the peace is imminent in that location and at that time. Generalised intelligence about possible future violence is not sufficient; specific, immediate risk is required.

Enforcement and Related Issues

Breach of the peace itself is not a criminal offence in England and Wales. As such:

• A person arrested to prevent a breach of the peace cannot be charged with the "offence" of breach of the peace.
• Individuals may be released when the immediate threat subsides; further detention without basis is unlawful.
• In some circumstances, police may bring a person before a magistrates' court to be 'bound over' to keep the peace or be of good behaviour. This is a civil order, not a criminal sanction, but it is enforceable, with refusal to agree potentially resulting in committal to prison to secure compliance.

Key Term: Binding over
A civil order made by magistrates requiring a person to refrain from specified conduct (typically to "keep the peace") for a set period, supported by a recognisance (a sum of money liable forfeit if the terms are breached).

The magistrates must identify the specific conduct or activity to be avoided and must be satisfied, on the criminal standard of proof, that the history and surrounding facts support the likelihood of future violence or disorder.

Refusal to be 'bound over' may result in imprisonment for up to six months, but only for the purpose of securing the recognisance, not as punishment for past behaviour.

Worked Example 1.6

A woman is arrested at a demonstration after repeatedly climbing into a restricted military base, protesting nuclear weapons. She is not violent and trained staff are not provoked. There is no evidence of violence having occurred or being likely. Can magistrates bind her over?

Answer:
No. Binding over is only appropriate where there is a real risk of violence or disorder occurring. Mere protest, without violence or the likelihood of provoking violence, does not justify a binding over order (following Percy v DPP [1995] 1 WLR 1382).

A person can also commit related criminal offences in connection to breach of the peace:

• Obstructing a police officer in the execution of their duty (s.89 Police Act 1996), such as by refusing to comply with a lawful direction made to prevent a breach.
• Wilful obstruction of the highway (s.137 Highways Act 1980), for blocking public passage absent lawful excuse, commonly used alongside breach of the peace powers in the context of demonstrations.

If police exercise their powers unlawfully, or without reasonable justification, those affected may have grounds to challenge the action by judicial review, or to claim compensation for false imprisonment or trespass to the person or property, depending on circumstances.

Key Point Checklist

This article has covered the following key knowledge points:

• Breach of the peace is a common law concept involving actual or threatened harm to persons or property, or actions causing fear of such harm.
• It is not a criminal offence but provides police and citizens with powers to prevent imminent disorder or violence, including arrest and dispersal.
• The exercise of powers requires strict compliance with the test of imminence: threats must be immediate and specific in time and place.
• Entry into private premises without a warrant to prevent a breach is permitted if necessary and proportionate, but only for as long as the risk continues.
• Police may disperse, separate, or confine individuals or groups, provided the response is measured, proportionate, and kept under review; "kettling" is lawful if justified.
• All powers under breach of the peace must be exercised compatibly with the ECHR, especially Articles 5, 10, and 11; police actions must be lawful, necessary, and proportionate, with an evidential basis for predicting imminent disorder.
• Enforcement includes the civil power to bind over for recurring threats; other criminal offences may relate to obstruction or illegal assembly.
• Those adversely affected by misuse of breach of the peace powers may pursue remedies through the courts.

Key Terms and Concepts

• Breach of the peace
• Imminence
• Reasonable apprehension
• Binding over
• Proportionality