A man was locked out of the matrimonial home which he owned jointly with his wife, following a family dispute. The police told him, as was the fact, that his wife and children did not want him to re-enter the house and the police suggested that he leave the vicinity of the property until tempers had abated. He was arrested when he refused to leave and insisted that he wished to enter the house.
Held: Where a constable made an arrest after a breach of the peace had quietened before arriving, but anticipating a further breach, he had to anticipate an immediate or imminent recurrence of a breach to justify the arrest. ‘The common law power of a police constable to arrest, where no actual breach of the peace has occurred but where he apprehended that such a breach might be caused by apparently lawful conduct, was exceptional and should be exercised by him only in the clearest circumstances when he was satisfied on reasonable grounds that a breach of the peace was about to occur or was imminent. There had to be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty the citizen who was not at the time acting unlawfully.’
Beldam LJ said: ‘In my view, the words used by Lord Diplock and in the other authorities show that where no breach of the peace has taken place in his presence but a constable exercises his power of arrest because he fears a [future] breach, such apprehended breach must be about to occur or be imminent. In the present case PC McNamara acted with the best of intentions. He had tried persuasion but the plaintiff refused to be persuaded or to accept the sensible guidance he had been given but in my judgment that was not a sufficient basis to conclude that a breach of the peace was about to occur or was imminent. There must, I consider, be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully. The factors identified by the recorder in the present case do not in my judgment measure up to a sufficiently serious or imminent threat to the peace to justify arrest.’
Thorpe LJ said of the making of an arrest for a breach of the peace: ‘I accept it is a possible result under the law as it has evolved to prevent breach of the peace. But I would hope that only in the rarest cases would domestic dispute and the rights of occupation of the matrimonial home be subject to the breach of the peace regime.’
Judges:
Beldam LJ, Thorpe LJ
Citations:
Times 26-Jun-1998, [1998] EWCA Civ 938, [1998] 3 All ER 705
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Albert v Lavin HL 3-Dec-1981
An off duty and out of uniform police officer attempted to restrain the defendant jumping ahead of a bus queue. The defendant struggled, and continued to do so even after being told that of the officer’s status. He said he had not believed that he . .
Cited by:
Cited – Chief Constable of Cleveland Police v Mark Anthony McGrogan CA 12-Feb-2002
The Chief Constable appealed a finding of false imprisonment of the claimant. He had once been properly arrested, but before he was freed, it was decided that he should be held for court and an information laid alleging breach of the peace. They . .
Cited – Wragg, Regina (on the Application Of) v Director of Public Prosecutions Admn 15-Jun-2005
The court faced a case stated where the defendant had been accused of resisting arrest. The officers claimed to have anticipated a breach of the peace, having been called to a domestic dispute.
Held: Though the defendant had not behaved with . .
Cited – Bibby v Chief Constable of Essex Police CA 6-Apr-2000
A bailiff sought to execute against goods in a shop against the will of the occupier. The police attended and when tempers were raised the police officer anticipated a breach of the peace by the bailiff and arrested him. He sought damages for that . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Humberside Police v McQuade CA 12-Jul-2001
Defendant’s appeal against an order giving judgment for the claimant in the action for damages to be assessed for wrongful arrest and personal injury. The claimant had been arrested in his home, purportedly for a breach of the peace. There was no . .
Lists of cited by and citing cases may be incomplete.
Police, Torts – Other, Crime
Updated: 30 May 2022; Ref: scu.144417