Breach of the Peace v Freedom of Expression
"If you continue being loud, you will be arrested for a breach of the peace!"?
These words, often uttered with authority, may not always carry the weight of the law. The law governing breaches of the peace is both complex and nuanced, rooted deeply in the principles of common law and the protection of individual freedoms. While the police possess the power to arrest to prevent an imminent breach of the peace, this power is not unfettered. It is bound by stringent criteria that ensure the balance between maintaining public order and respecting personal liberty is not unjustly tipped.?
Arrests for breaches of the peace must be justified by necessity and proportionality, supported by reasonable grounds to believe that a breach is truly imminent. The mere fact of someone being loud does not automatically fulfil these requirements. The law demands more than just a disruption; it demands a tangible threat of harm or violence.?
Judicial Clarity
In understanding when an arrest for breach of the peace is lawful, we must explore the legal landscape shaped by key judicial decisions. These cases illuminate the boundaries within which police powers must operate.?
Consider the ruling in R (on the application of Hicks and others) v Commissioner of Police for the Metropolis [2017] UKSC 9. The Supreme Court here made it clear that arrests aimed at preventing an imminent breach of the peace must be justified not just by necessity, but by strict adherence to proportionality. The duration of any resulting detention must be minimal—only long enough to defuse the immediate threat. This case underscored the importance of aligning police actions with Article 5 of the European Convention on Human Rights (ECHR), which enshrines the right to liberty and security. Preventive detention can only be lawful if it is essential and brief, not a punitive measure in disguise.?
The case of Laporte v Chief Constable of Gloucestershire [2006] UKHL 55 further clarifies this principle. The House of Lords held that police actions, in this case, were disproportionate and unlawful because there was no imminent conduct justifying an arrest. This decision established a critical precedent: the police must possess a reasonable belief in an imminent breach of the peace, and any preventive measures must be proportionate to the actual threat posed. Being loud, without more, does not meet this threshold.?
Equally significant is the ruling in Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 732, where the court highlighted that a breach of the peace involves violence or the threat thereof. Crucially, Redmond-Bate established that an individual cannot be lawfully arrested simply because others—the so-called third parties—react with hostility to what that individual is saying or doing. The court emphasised that the police must manage the crowd's response rather than suppress the lawful conduct of the individual. Arrests must be based on a clear and present danger, not a speculative or exaggerated response to noise or disruption. This case reinforced the importance of protecting freedom of expression, even in the face of potential public disorder, unless an imminent threat of violence is apparent.?
Applying the Law
Picture this: a person in a public space, raising their voice in protest or exuberance. Their loudness alone, even if it draws attention or discomfort, does not automatically translate into a breach of the peace. For the police to lawfully intervene, there must be a reasonable belief that this loudness is a precursor to violence or harm. This belief must be supported by context—perhaps the person is inciting a crowd towards aggression or responding to hostility in a way that risks escalating into violence. Without such context, the police risk overstepping their bounds.?
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Moreover, if a crowd reacts with hostility to this person’s actions or words, the responsibility lies with the crowd, not the individual. The ruling in Redmond-Bate makes it abundantly clear that the police must address the behaviour of the crowd rather than unjustly arresting the individual. To do otherwise would be to grant a "heckler’s veto," allowing the most easily offended or the most volatile members of the public to dictate what others are allowed to say or do.?
Conclusion?
Given these precedents, we are compelled to ask: does mere loudness, devoid of any violent context, provide reasonable grounds for an imminent breach of the peace? The answer, supported by case law, is a resounding no. To justify an arrest, the threat must be immediate, the response proportionate, and the belief in a breach based on more than just noise.?
In conclusion, while the police play a vital role in maintaining public order, their powers to arrest for breach of the peace are circumscribed by law. An arrest based solely on loudness, without the presence of imminent harm or violence, does not satisfy the criteria laid in law. Such an arrest would likely be deemed unlawful, an overreach of authority rather than a necessary act of public protection. Furthermore, if the only source of a threat is the reaction of third parties, the police must manage the crowd, not punish the individual.?
The defence, therefore, would argue that their client’s arrest was unlawful—unnecessary, disproportionate, and lacking reasonable grounds. Such actions undermine public trust in enforcement of the law and infringe upon the fundamental freedoms that the law seeks to protect. This principle, firmly established in our courts, ensures that the scales of justice remain balanced, protecting both public order and individual rights.?
Legal Disclaimer: This article provides general information and does not constitute formal legal advice. The author is not liable for how this information is used. Always seek professional legal advice for specific situations.?
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