TL;DR
Breach of the peace is a common law power that gives police wide authority to intervene and arrest without a warrant. This guide explains the legal definition, what conduct qualifies, and what can happen if you are arrested.
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Breach of the peace is a common law concept with no single statutory definition. It has been developed through case law over centuries and gives police officers and in some circumstances members of the public the power to arrest without a warrant and to take reasonable steps to prevent a breach occurring or continuing.
Legal Definition
The leading authority is R v Howell [1982] QB 416, which defined a breach of the peace as an act done or threatened to be done which either actually harms a person, or in the person's presence their property, or is likely to cause such harm, or which puts a person in fear of such harm. Violence or the threat of imminent violence is the key element. Mere annoyance, disorder, or unruly behaviour does not constitute a breach without a violence threshold being met or genuinely threatened.
The House of Lords considered the concept in Steel v United Kingdom [1998] 28 EHRR 603, where the European Court of Human Rights held that the UK's breach of the peace power was compatible with Article 5 of the ECHR (right to liberty) provided its application was sufficiently certain and foreseeable.
Police Powers of Arrest
A police officer who reasonably believes a breach of the peace is occurring or is about to occur may arrest the person responsible without a warrant. This power exists at common law and is separate from the statutory arrest powers in the Police and Criminal Evidence Act 1984 (PACE). The arrest is not for a criminal offence in the conventional sense; breach of the peace itself is not a criminal offence and cannot result in a conviction or criminal record.
A person arrested for breach of the peace may be detained until the risk has passed, then released. If the risk is considered ongoing, the person may be brought before a magistrates court and asked to enter a binding over order under the Justices of the Peace Act 1361 or the Magistrates Courts Act 1980.
Binding Over Orders
A binding over order requires a person to keep the peace for a specified period, usually up to 12 months, and to be of good behaviour. If the person refuses to accept the order, the court can impose a period of imprisonment. Breach of a binding over order is a civil rather than criminal matter, though it can result in forfeiture of a financial surety.
Protest and Public Order
The breach of the peace power has been used in the context of protests and demonstrations. Courts have held that police may use the power to prevent conduct likely to provoke violence, even where the conduct itself is lawful. However, use of the power must be proportionate and necessary, consistent with Article 10 (freedom of expression) and Article 11 (freedom of assembly) of the ECHR, as incorporated into domestic law by the Human Rights Act 1998.
Scotland
In Scotland, breach of the peace is a statutory offence under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which replaced the common law offence. The statutory definition covers behaviour that is likely to cause a reasonable person to suffer fear or alarm. The Scottish offence can result in a criminal conviction, unlike the position in England and Wales.
Frequently Asked Questions
Is breach of the peace a criminal offence in England?
No. In England and Wales, breach of the peace is not a criminal offence and does not result in a criminal conviction or record. It is a common law power that allows arrest and binding over.
Can police arrest me for breach of the peace at a protest?
Yes, if police reasonably believe your conduct is likely to provoke imminent violence. The power must be used proportionately and consistently with your ECHR rights to expression and assembly.
What is a binding over order?
A binding over order is a court order requiring a person to keep the peace for a specified period. Refusal to accept the order can result in imprisonment. It is a civil rather than criminal remedy.
