As a legal construct, ‘breach of the peace’ has always held a special interest in this writer’s heart, because as a common law concept, breach of the peace is an important element in regards to Australia’s public order laws. One of the interesting aspects of breach of the peace is that it is not an offence per se, however, a person who engages in conduct that causes, or is likely to cause a breach of the peace, may involve the committing of other offences, such as assault or affray to name two examples.
So if breach of the peace isn’t an offence: what exactly does ‘breach of the peace’ mean?
The definition of breach of the peace
As noted earlier, breach of the peace is not an offence, but instead it is the basis for the execution of the common law power which prevents public disorder. Furthermore, breach of the peace is one element of other public order offences such as unlawful assembly or riot.
In attempting to establish what breach of the peace entails, we can turn to the leading authority of the concept which can be found in R v Howell, where Watkins LJ in the English Court of Appeal, defined breach of the peace in the following way:
“There is breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawfully assembly or other disturbance.”
Broadly speaking, breach of the peace as defined in Howell has been generally accepted in Australian common law.
How can a breach of the peace be prevented?
Any citizen by virtue of the common law, has the power to prevent a breach of the peace, and is able to do so by taking any necessary steps to prevent, or suppress a breach of the peace. However, conditions have been imposed in terms of what is considered reasonable under the circumstances in which a person can prevent a breach of the peace, and in Albert v Lavin, Lord Diplock held:
“…every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although except in the case of a citizen who is a constable, it is a duty of imperfect obligation.”
One of the interesting aspects of breach of the peace, is that a person has protections in both criminal and civil law to prevent a breach, if they take the necessary and reasonable steps to prevent or suppress a breach of the peace.
Some of the actions that are considered as necessary and reasonable in the prevention or suppression of a breach of the peace can include:
- confiscation of property.
Furthermore, the common law grants a person the right to arrest another person without a warrant whose conduct is causing, or is likely to cause, a breach of the peace. However, it should be noted, that an action of arrest for a breach of the peace is a “measure of last resort” as was noted in Commissioner of Police (Tas); Ex parte North Broken Hill Ltd.
What is a ‘reasonable’ belief?
As has been pointed out earlier in this piece, there must exist a reasonable belief that a breach of the peace is imminent, and in Forbutt v Blake, Connor ACJ said:
“A mere statement by a police constable that he anticipated a breach of the peace is not enough to justify his taking action to prevent it; the facts must be such that he could reasonably anticipate not a remote, but a real, possibility of a breach of the peace.”