Breach of the peace
Breach of the peace or disturbing the peace, is a legal term used in
Public order
England, Wales and Northern Ireland
In England and Wales, theoretically all criminal offences cognizable by English law involve "a breach of the
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
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
In England and Wales, breach of the peace is a
The only immediate sanction that can be imposed by a court for breach of the peace is to
Nowadays a person causing a public disturbance may be arrested for, and/or charged with, causing
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
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
- Common scold
- Public nuisance
- King's Peace
- Rule according to higher law
- Common law offence § England and Wales
- Picking quarrels and provoking trouble
References
- ^ "Indictments Act 1915" (PDF). Legislation.gov.uk. Retrieved 2 July 2015.
- ^ "New Jersey State Constitution". Njleg.state.nj.us. Archived from the original on 30 June 2009. Retrieved 14 June 2015.
- ^ public domain: Chisholm, Hugh, ed. (1911). "Peace, Breach of the". Encyclopædia Britannica. Vol. 4 (11th ed.). Cambridge University Press. p. 16. One or more of the preceding sentences incorporates text from a publication now in the
- ^ "Justices of the Peace Act 1361". Opsi.gov.uk. Archived from the original on 16 April 2009. Retrieved 2 July 2015.
- ^ R. v. Howell [1982] QB 416
- ^ "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.
- ^ R v Howell 1982 (E/W case law)
- ^ "Arrest and detention—overview - Lexis®PSL, practical guidance for lawy..." www.lexisnexis.com.
- .
- ^ 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.
- ^ "Justices of the Peace Act 1361". www.legislation.gov.uk.
- ^ "Binding Over Orders". Crown Prosecution Service. Retrieved 26 May 2018.
- ^ 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)
- ^ "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.
- ^ 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)
- ^ "Smith v Donnelly (Procurator Fiscal, Dumbarton) ScotHC 121 (28 September 2001)". Bailii.org. Retrieved 14 June 2015.
- ^ Terminiello v. City of Chicago, 337 U.S. 1 (1949).
- ^ Terminiello, 337 U.S. at 4.
- ^ Cox v. Louisiana, 379 U.S. 536, 551 (1965).
- ^ Cox, 379 U.S. at 544 (quoting La. Rev. Stat. § 14:103.1 (Cum. Supp. 1962)).
- ^ Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685, 687 (1948)
- ^ Head v. State, 131 Tex. Crim. 96, 96 S.W.2d 981, 982 (1936)).
External links
- R v Howell 1982 (E/W case law)
- CPS.gov.uk (self-defence / prevention of crime advice)
- The Crown Prosecution Service Guidance for Breach of the Peace and Bind Over Orders (Applies to England & Wales)