Helga Law Journal - 01.01.2021, Page 151

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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as a justification for the arrest of a plaintiff done “under Regulation 55140 which
empowered the authorities to arrest any person whose behaviour is of such a
nature as to give reasonable grounds for suspecting that he has acted, is acting or
is about to act contrary to the public safety.”141
The interwar period also witnessed a number of interesting cases such as
Thomas v Sawkins142 where 30 police officers attended a meeting on private
property, where the objective was the discussion of a campaign against the police.
Lord Chief Justice Hewart not only based his justification of the defendant upon
the necessity of preventing a breach of peace, but also on how it “[went] without
saying that the powers and duties of the police are directed, not to the interests
of the police, but to the protection and welfare of the public.”143 Only a year
later, in Duncan v Jones144 Lord Hewart CJ further acknowledged that “[the]
English law does not recognize any special right of public meeting for political
or other purposes.”145
Some change took place in Piddington v Bates146; although Piddington was
convicted of obstructing a police officer, Lord Parker CJ described that “it is not
enough that [the constable’s] contemplation is that there is a remote
possibility,”147 and that there must be an actual possibility of a breach of peace.
Yet, the case still placed quite a low threshold as to what that breach entailed. In
Moss v McLachlan148 “the four appellants, attempted to force their way through a
police cordon which had been established to stop the miners proceeding and
were charged under section 51(3) [of Police Act 1964]”149 since the court
accepted a test of ‘close proximity both in place and time’ and a breach of the
peace was held to be ‘imminent and immediate.’150
Before delving further into more recent cases, the definition of a breach of
peace in English law should be clarified. The piece of legislation that empowered
the creation of the offence came in the form of a statute; it was the Justices of
the Peace Act of 1361.151 This has been the cause of considerable confusion in

140 Defence of the Realm Acts and Regulations 1915, Regulation 55, 66. Retrieved 02 July 2015 from
https://babel.hathitrust.org/cgi/pt?id=njp.32101067264596;view=1up;seq=3.
141 Keith Ewing and Conor Anthony Gearty, The Struggle for Civil Liberties: Political Freedom and
the Rule of Law in Britain, 1914-1945 (1st edn Oxford University Press 2001) 84. The writers
consider this decision as reflecting the “indulgent view of the powers of the public authorities” of
British courts in the 20th century.
142 [1935] 2 KB 249, 30 Cox CC 265 KB.
143 ibid.
144 [1936] 1 KB 218.
145 ibid.
146 [1960] 3 All ER 660, [1961] 1 WLR 162.
147 ibid.
148 [1985] IRLR 76.
149 Gillian S Morris, ‘Picketing and Police Forces’ [1985] 14(1) Industrial Law Journal 109, 110.
150 ibid.
151 Justices of the Peace Act 1361, 1361 Chapter 1 34 Edw 3, can be accessed at
http://www.legislation.gov.uk/aep/Edw3/34/1?view=extent. It was amended in 2018, due to the
fact that the powers of the Justices of the Peace had now been transferred to Magistrate’s Courts,
and was considered to be dated by many legal scholars -as cited by Graham McBain, “Modernising
courts; for example, in the 1947 case The King v County of London Quarter Sessions
Appeals Committee,152 it was recognised by Lord Humphreys that the “statute
creates no such offence, but merely authorises justices of the peace to take
sureties of some and to punish others.”153 In Howell,154 Lord Watkins recognised
that present definitions did not suffice, attempting to provide a solution by
stating that “there is a 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.”155
Further contributions to this issue were made in Steel,156 where it was agreed
that “the expression ‘to be of good behaviour’157 was particularly imprecise and
offered little guidance to the person bound.”158 The Court recognised that the
third, fourth and fifth applicants, who were arrested simply for distributing
leaflets, faced an interference with their Article 11 right; yet, the first and second
applicants, who in addition refused to be bound over, were rightly considered to
lack ‘good behaviour’ and the interference with their rights was justified. In many
subsequent cases (for example Hashman and Harrup v The United Kingdom,159 and
others) the Court did not consider the complaints of the applicants with regards
to their Article 11 rights or deemed their request with regards to Article 11
inadmissible and only examined interferences with Article 10.
In other cases, the ECtHR has agreed with the legal approach of UK courts.
In Appleby v UK,160 “the applicants alleged that they had been prevented from
meeting in the town centre, a privately owned shopping mall, to impart
information and ideas about proposed local development plans.”161 The
applicants further relied upon the argument that due to its character, the
shopping centre was a ‘quasi-public’ land. Yet, both the Government and the
ECHR were convinced that their rights had not been infringed since they could
employ alternative means to “communicate their views.”162 The UK

the Law: Breaches of the Peace & Justices of the Peace” [2015] 8(3) Journal of Politics and Law 158.
However, it still applies to both England and Wakes.
152 The King v County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner
[1948] 1 K.B. 670. It is interesting to note that the defendant was brought to court because his
eavesdropping was thought to potentially ‘blemish peace’. In the end, he “was ordered to give surety
for good behaviour, not because there was evidence of mere intention to offend in future, but because
he had been found to have in fact been guilty of conduct which endangered the peace” [681].
153 ibid [679]. The Act is quite specific on that matter, as it specifies that the Justices of Peace “have
Power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take, and
chastise them according their Trespass or Offence”, while “the People be not by such Rioters or
Rebels troubled nor endamaged, nor the Peace blemished”.
154 Regina v Howell (Errol) [1981] 3 W.L.R. 501 [1982] Q.B. 416.
155 ibid [426].
156 Steel and Others v United Kingdom, no 24838/94, ECHR 1999.
157 Per the explanation of the court: “A ‘binding over’ order requires the person bound over to enter
into a ‘recognizance’... to keep the peace or be of good behaviour for a specified period of time” ibid.
§611.
158 (n62) §641.
159 no 25594/94, ECHR 2000.
160 no 44306/9, ECHR 2003.
161 ibid §3.
162 ibid §48.