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R v Howell
[1982] QB 416, [1981] 3 All ER 383, [1981] 3 WLR 501, 73 Cr App Rep 31, 146 JP 13, [1981] Crim LR 697, 125 Sol Jo 462

POLICE - THE PRESERVATION OF THE QUEEN’S PEACE - POWERS, DUTIES AND PRIVILEGES GENERALLY - POWERS - ARREST - ARREST — VALIDITY OF ARREST — CONDUCT LIKELY TO CAUSE A BREACH OF THE PEACE

The appellant, together with others, had been making a disturbance on the street after a party. After complaints made by neighbours the police arrived and told the appellant and the others to leave or be arrested for breach of the peace. The appellant swore several times at two of the policemen who again warned him that he would be arrested for breach of the peace if he did not leave. The appellant continued to swear whereupon one of the police constables took hold of the appellant, but before he could explain why he was arresting the appellant, the appellant struck him in the face and together with the others set on the two policemen. The appellant was convicted of an assault occasioning actual bodily harm on the police constable. He appealed against conviction on the grounds, inter alia, that his arrest was unlawful because no breach of the peace had been proved against him, and accordingly, on the supposition that he had, contrary to his own evidence, struck the police constable, he had been acting lawfully in escaping from a wrongful arrest in that he had used no more force than had been necessary.

Held—(1) A constable or ordinary citizen had power of arrest without warrant where there was a reasonable apprehension of an imminent breach of the peace even though the person arrested had not at that stage committed any breach. Accordingly, there was a power of arrest for breach of the peace where (a) a breach of the peace was committed in the presence of the person making the arrest, or (b) the arrestor reasonably believed that such a breach would be committed in the immediate future by the person arrested even though at the time of the arrest he had not committed any breach, or (c) where a breach had been committed and it was reasonably believed that a renewal of it was threatened. When such a power was exercised on the basis of a belief that a breach of the peace was imminent it had to be established not only that it was an honest, albeit possibly mistaken, belief but that it was a belief which was founded on reasonable grounds.

(2) There could not be a breach of the peace unless an act was done or threatened to be done which either actually harmed a person or, in his presence, his property or was likely to cause such harm or which put someone in fear of such harm being done.

(3) It followed that, in all the circumstances, the appellant had been rightly convicted, and the appeal would accordingly be dismissed.

Per curiam. (1) A constable makes a valid arrest when he reasonably believes a breach of the peace is about to be committed if he says merely ‘I am arresting you for a breach of the peace’. In such a case he is not to be taken as referring only to the actual commission of a breach, and is not therefore forbidden from giving evidence the effect of which would be that he had in fact carried out the arrest for an apprehended breach. (2) In circumstances where a person is entitled to use reasonable force to resist arrest, there is no distinction to be drawn between the word ‘escape’ and the words ‘resist the arrest’.