Practice and Procedure


PUBLISHED February 21, 2003

Breach of the peace was not an offence for the purposes of the Police and Criminal Evidence Act 1984.Claimant's ('W') appeal from the decision of Wall J that his arrest and detention was lawful. The issue on appeal was whether Police and Criminal Evidence Act 1984 applied to arrest and detention for breach of the peace. At 11.45am on Sunday 23 February 1997, W was arrested at home for breach of the peace arising out of an argument with a neighbour in which W had brandished a knife, and was taken to the police station. At 2.25pm the same day, the custody officer believed that W's actions warranted being placed before the magistrates for a bind over. The police were of the view that the 1984 Act did not apply, and detained W in custody overnight. W's case was heard at 12.30pm the next day, and the magistrates made no order. W commenced proceedings seeking damages for wrongful arrest and unlawful detention on the basis that there were no grounds for the arrest, and that W should have been released. The judge held as follows: (i) the preventative arrest was lawful; (ii) the police had been correct in their view that they had no power to release W until he had appeared before magistrates; and (iii) Art.5 of the European Convention on Human Rights required the term "offence" in the 1984 Act and in s.34(1) to include a breach of the peace. W argued that: (a) relying on R v Bolton Justices, ex parte Graeme (1986) 150 JP 190, Percy v Director of Public Prosecutions (1995) 1 WLR 1383 and Nicol & Anor v Director of Public Prosecutions (1996) 160 JP 155, the law had developed since R v County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Commissioner (1948) 1 KB 670 such that a breach of the peace was now regarded as an offence; (b) the phrase "all persons in police detention" in s.39(1) of the 1984 Act included persons detained for breach of the peace; and (c) although the present case was a pre-Human Rights Act 1998 case, the court should still have regard to Steel & Ors v United Kingdom (1998) 28 EHRR 603.HELD: (1) The starting point was that it had been clearly established that breach of the peace was not a criminal offence (see ex parte Metropolitan Commissioner, (supra)). None of the authorities relied on created doubt as to the correctness of Lord Goddard LCJ in ex parte Metropolitan Commissioner (supra). A person arrested for breach of the peace would not be charged, and a bind over was not a conviction. The situation was analogous with antisocial behaviour orders under the Crime and Disorder Act 1998. It was difficult to see how the term "offence" in the 1984 Act could be given an extended meaning to include breach of the peace, and there were contrary indications in the 1984 Act itself, for example in ss.17(6) and 25(6). (2) Section 39(1) had to be read in context. There was no power in the Bail Act 1976 to grant bail except in criminal proceedings as defined, and no power existed in other circumstances, which included breach of the peace. The common law provided persons arrested and detained for breach of the peace with a considerable measure of protection against arbitrary action. It was a matter of good police practice to treat persons detained for breach of the peace as though the 1984 Act applied. (3) Steel (supra) did not require a different interpretation of the 1984 Act. (4) This court did not agree with the reasoning of the judge, but he was entitled to reach the same conclusions on the simple application of the common law. (5) The appellant was entitled to a declaration to reflect the judgment on the question of law.Appeal dismissed. Permission to appeal to the house of Lords refused.

[2003] EWCA Civ 337