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Bibby v Chief Constable of Essex Police
The Times 13 April 2000
COURT OF APPEAL (CIVIL DIVISION)
MORRITT, PILL, SCHIEMANN LJJ
6 APRIL 2000

CRIMINAL; Police Arrest – Arrest without warrant – Breach of the peace – Apprehended breach of the peace – Bailiff attempting to seize debtor’s goods – Bailiff and debtor both calling police – Police officers apprehending a breach of the peace – Police officers arresting bailiff – Bailiff claiming for assault and wrongful arrest – Whether arrest of bailiff justified

COURT OF APPEAL. Published April 24, 2000. Bibby v Chief Constable of Essex Police Before Lord Justice Morritt, Lord Justice Pill and Lord Justice Schiemann. Judgment April 6, 2000

A citizen could exercise a common law power to arrest another person, A, who was not at the time acting unlawfully only if: (i) there was a real threat of a breach of the peace by A, (ii) A was clearly interfering with the rights of others, (iii) with the natural consequence of other than wholly unreasonable violence by a third party, and (iv) A's conduct was unreasonable.

The Court of Appeal so held, in allowing an appeal by Lesley Edward Bibby, a certified county court bailiff, from the dismissal by Mr Assistant Recorder David Goodin of his claim against the police for damages for assault and wrongful imprisonment.

Mr Jeremy Johnson for the claimant; Mr Christopher Johnston for the defendant.

LORD JUSTICE SCHIEMANN said that policemen, including PC O'Hare, had been called to a shop in Chelmsford occupied by Mr Brannan, the debtor, and his wife, by both Mr Brannan and Mr Bibby, who was armed with a court liability order in respect of unpaid rates and a walking possession agreement which scheduled personal property there.

Temperatures and tempers, in a small room, had been high. The debtor's response to Mr Bibby's unforced entry and request for cash, if he wished to avoid removal of his goods, had been to tell Mr Bibby, quite forcefully, to leave; as otherwise he would call friends to prevent such removal "as they had done before".

PC O'Hare, thinking that Mr Bibby, a large person and "intimidating by being there and very forthright", was "short-tempered and at the end of his tether", had warned him that if he did not leave the premises he would be arrested to prevent a breach of the peace.

On Mr Bibby declining to leave, PC O'Hare had arrested him, caused him to be handcuffed, and detained him in a police station for about an hour before his release.

As to the power to arrest where there was reasonable apprehension of imminent danger of a breach of the peace if the arrestor reasonably believed such breach would be committed in the immediate future by the person arrested, although no breach had yet occurred (see R v Howell (Erroll) ((1982) QB 416, 426C) there had been no material upon which it could have been found that Mr Bibby had any intention of assaulting the debtor.

In substance, the assistant recorder had found that PC O'Hare reasonably considered that Mr Bibby was acting lawfully but provocatively; that as a result of that provocation a breach of the peace was likely; that any attempt to remove goods scheduled to the walking possession agreement would be resisted by the debtor, with the probable result of violence; so that it was reasonable for him to ask Mr Bibby to go and unreasonable of Mr Bibby to insist on staying, until he had either the money or the goods.

His Lordship referred to Foulkes v Chief Constable of Merseyside Police ((1998) 3 All ER 705,710g, 711); Nicol and Selvanayagam v Director of Public Prosecutions ((1996) 160 JP 155,162) and Redmond-Bate v Director of Public Prosecutions (The Times July 28, 1998).

Mr Johnston, without suggesting that any passage in those cases was wrong, had urged that there was greater public interest in preventing violence than in a bailiff obtaining goods: in case of a conflict between those desiderata, the quest for peace must prevail.

But assume that a policeman, about to arrest a man, was threatened with violence if he touched the man: a passer-by told the policeman: "Go away, or there will be a breach of the peace": must the policeman obey, at the risk of himself being arrested by the passer-by?

While sympathetic to PC O'Hare's reaction to an explosive situation, he had failed to identify whence the threat of violence was coming: implicit in the debtor's attitude had been a threat to use violence if Mr Bibby persevered.

In summary: in order to exercise the now exceptional common law power of arrest:

1 Only a sufficiently real and present threat to the peace justified depriving a citizen, not at the time acting unlawfully, of his liberty: Foulkes
2 The threat must come from the person to be arrested: Redmond-Bate;
3 The conduct must clearly interfere with the rights of others and its natural consequence must be "not wholly unreasonable violence" from a third party: Redmond-Bate and
4 The conduct of the person to be arrested must be unreasonable: Nicol.
Lord Justice Pill delivered a concurring judgmentand Lord Justice Morritt agreed.

Solicitors: Jefferies, Westcliff-on-Sea; Barlow Lyde & Gilbert.