Frequently Asked Questions
Q: What offence does breach of the peace constitute?
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.