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McConnell v Chief Constable of the Greater Manchester Police
COURT OF APPEAL, CIVIL DIVISION
[1990] 1 All ER 423, [1990] 1 WLR 364, 91 Cr App Rep 88, 154 JP 325
HEARING-DATES: 6 NOVEMBER 1989
6 November 1989

Criminal law -- Breach of the peace -- Common law offence -- Breach of the peace on private premises -- Whether breach of the peace can occur on private premises where no member of public outside premises is involved.

HEADNOTE:
At common law a breach of the peace can occur on private premises even if the only persons likely to be affected by the breach are inside the premises and no member of the public outside the premises is involved. Accordingly, where a police officer genuinely suspects on reasonable grounds that a breach of the peace is likely to occur inside private premises he is entitled to exercise his common law power to arrest for breach of the peace without a warrant.
Wilson v Skeock (1949) 113 JP 294, Robson v Hallett [1967] 2 All ER 407 and R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1981] 3 All ER 826 considered.

CASES-REF-TO:
R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1981] 3 All ER 826, [1982] QB 458, [1981] 3 WLR 967, CA.
R v Howell [1981] 3 All ER 383, [1982] QB 416, [1981] 3 WLR 501, CA.
R v Podger [1979] Crim LR 524, Crown Ct.
Robson v Hallett [1967] 2 All ER 407, [1967] 2 QB 939, DC.
Wilson v Skeock (1949) 113 JP 294, DC.

CASES-CITED:
Thomas v Sawkins [1935] 2 KB 249, [1935] All ER Rep 655, DC.

INTRODUCTION:
Appeal
The plaintiff, Thomas Rodney McConnell, appealed against a preliminary ruling of law made by his Honour Judge Blackburn in the Oldham County Court on 11 July 1988 in the trial of the plaintiff 's action against the defendant, the Chief Constable of the Greater Manchester Police, for damages for false imprisonment, whereby the judge ruled that at common law a breach of the peace could take place on private premises. The facts are set out in the judgment of Glidewell LJ.

COUNSEL:
R J Scholes QC and Lesley Newman for the plaintiff
J J Rowe QC and John Beaumont for the defendant.
PANEL: PURCHAS, GLIDEWELL LJJ AND SIR ROGER ORMROD

JUDGMENTBY-1: GLIDEWELL LJ
JUDGMENT-1:
GLIDEWELL LJ (delivering the first judgment at the invitation of Purchas LJ). This is an appeal by the plaintiff, Mr McConnell, against a decision of his Honour Judge Blackburn in the Oldham County Court on 11 July 1988 determining a preliminary point of law in favour of the defendant, the Chief Constable of the Greater Manchester Police.

Before I set out the circumstances which lead to the preliminary point of law, I should say that since the matter has not yet been tried it may be that the facts eventually proved may be somewhat different. However, the facts on which the matter came to be determined before the county court judge were as follows.

On the afternoon of 21 March 1983 the police were called to Watson's Carpet Store in Glodwick Road, Oldham. Pc Smith, who attended, found the plaintiff sitting in an office of the store with the store manager. The manager asked the plaintiff to leave, and he refused. Pc Smith then took the plaintiff out of the shop. When they were outside the plaintiff attempted to re-enter. Pc Smith, purporting to exercise his common law power of arrest, arrested him on suspicion that he was guilty of conduct whereby a breach of the peace might be occasioned or that, if he allowed him to re-enter, such a breach of the peace might take place. The plaintiff was taken to Oldham police station, where he was detained until he appeared before the magistrates the following morning.

I should say that from the start it was decided by the police officer, and no doubt by the officer in charge at the police station when the plaintiff was taken in, that the plaintiff should not be charged with any specific criminal offence. It was made clear that the intention was that the magistrates should be asked to bind him over to keep the peace.

Eventually the matter came before the magistrates in July 1983. According to the papers before us, he was acquitted, that is was not bound over. I take it that what that means is that the magistrates were not satisfied, either that the plaintiff had committed a breach of the peace or that he was likely to do so if he re-entered the premises.

In this action, begun by a writ issued on 20 March 1984, the plaintiff claims damages for false imprisonment. The defence is that his arrest and his subsequent detention were lawful since Pc Smith had reasonable cause to believe that if the plaintiff persisted in trying to re-enter the store a breach of the peace would or might be occasioned. Thus, it is argued, under the common law power the arrest was lawful.

The plaintiff 's case is that if there had been a breach of the peace it would have taken place in Watson's Carpet Store, that is to say on private premises. The judge was then asked to decide a preliminary issue. We have not had the preliminary issue put before us in the form of any order of the court or anything of that kind, but we are told by counsel for the plaintiff, and of course I accept, that the original issue which it was sought to ask the judge to decide was wider than that which in the event the judge did decide. I comment, perhaps peripherally, that seeking to have preliminary issues decided as matters of law sometimes does not produce the desired result, and it may be that this is such a case. But what Judge Blackburn decided was the question whether a breach of the peace could at common law take place at private premises. He answered that question: 'Yes. A breach of the peace can take place on private premises', or 'private property', as it is put in the note he made of his judgment.

In the last few moments of his submissions in reply, counsel for the plaintiff observed that this seems to be the first time that this point has been raised. Since the concept of breach of the peace is about as old as English law itself, it is perhaps surprising that the point, if a valid one, has not been raised before. Nevertheless, we have certainly not had put before us any clear authority dealing with it.

I start by reminding myself that what we are concerned with is the question of whether the police constable, when he arrested the plaintiff, had reasonable grounds to suspect that if the plaintiff re-entered the premises a breach of the peace might be occasioned. We, of course, are not concerned with the facts. The question arises because if there had been a breach of the peace it must be taken that it would have occurred, as I have said, on private premises. We are not concerned, although some argument has been based on it, directly with questions relating to binding over under the Justices of the Peace Act 1361, which gives magistrates the power to bind over in appropriate circumstances, breach of the peace or anticipated breach of the peace being included amongst those circumstances.

The recent authority to which we were referred which deals with the questions of power of arrest and breach of the peace is a decision of the Court of Appeal, Criminal Division in R v Howell [1981] 3 All ER 383, [1982] QB 416. That was a case in which a very noisy party at which there were a large number of young people was taking place in a private house. It went on into the early hours of the morning. It seems that neighbours, being disturbed by the noise, protested and some of them gathered in the street outside. The police were called. They asked a small group of people, including the defendant, Howell, to go home, accusing them of causing a breach of the peace. When they were reluctant to do so, the police then arrested, amongst others, Howell, who, as he was being arrested, struck the arresting officer and a fight developed. Howell was charged with assaulting the police officer while he was acting in the execution of his duty, and the question which arose, as it so frequently does, was whether the officer was acting in the execution of his duty.

Giving the judgment of the court Watkins LJ said ([1981] 3 All ER 383 at 388, [1982] QB 416 at 426):
'We entertain no doubt that a constable has a power of arrest where there is reasonable apprehension of imminent danger of a breach of the peace so for that matter has the ordinary citizen.'

Then he referred to R v Podger [1979] Crim LR 524, which he said was in the opinion of the court wrongly decided, but that has no relevance to the present matter. He continued:
'We hold that there is power of arrest for breach of the peace where (1) a breach of the peace is committed in the presence of the person making the arrest, or (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach, or (3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened. The public expects a policeman not only to apprehend the criminal but to do his best to prevent the commission of crime, to keep the peace in other words. To deny him, therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to disable him from preventing that which might cause serious injury to someone or even to many people or to property. The common law, we believe, whilst recognising that a wrongful arrest is a serious invasion of a person's liberty, provides the police with this power in the public interest.'

Watkins LJ returned to the same point when he said [1981] 3 All ER 383 at 389, [1982] QB 416 at 427):
'We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.'

In so far as there are authorities dealing with the question which the judge considered, that is to say 'can a breach of the peace take place on private property?', the case which is perhaps most helpful is the decision of a King's Bench Divisional Court in Wilson v Skeock (1949) 113 JP 294. In that case an information was preferred by the respondent, Mrs Skeock, alleging that the appellant, Wilson, used abusive words whereby a breach of the peace was likely to be occasioned, contrary to s 5 of the Public Order Act 1936. The facts were that both parties lived in a block of flats with a yard at the back to which both had access. A wall separated the yard from a lane to which the public had access. On two occasions the appellant, standing in the yard, used language to the respondent, who was in her flat, which was abusive and of a nature whereby a breach of the peace might have been occasioned between the appellant and the respondent. The justices did not find the alleged offence proved and did not impose any penalty, but they bound over the appellant to keep the peace for the term of two years.

It is apparent from the report that the justices must have been acting under the powers of the 1361 Act. Nevertheless it seems that, mistakenly, the record of the binding over referred to the Public Order Act 1936. Giving a judgment with which the other two members of the court, Cassels and Oliver JJ, agreed, Lord Goddard CJ said (at 296):
'In the present case the correct procedure would have been, instead of proceeding under the Public Order Act, 1936, which, for the reasons I have given, has no application here, for the respondent to have brought the appellant before the justices simply complaining that by his words and conduct a breach of the peace was likely to be committed and the justices would then have dealt with it. In my opinion, it is well established in law that where a person is brought before justices for any offence, once having got him before them, they can exercise the powers they have under their commission and under the statute of Edward III and bind him over to keep the peace. That is what the justices have done in this case. I do not think that there is any fault to be found with their order because they have found that the conduct complained of was in fact abusive and something whereby a breach of the peace might have been occasioned between the appellant and the respondent. It is because they were satisfied that there might be a breach of the peace between the appellant and the respondent that they bound the appellant to keep the peace. We do not think, therefore, there is any reason to interfere with the order of the justices, although we think that the words ''contrary to section 5 of the Public Order Act, 1936'' ought to be struck out of it.'

I should have said that the reason why the Divisional Court decided that s 5 of the 1936 Act did not apply was that the section itself related to the use of threatening, abusive or insulting words of behaviour in any public place or at any public meeting. The court decided that if words which, if used in a public place or at a public meeting, might constitute an offence against the section were used in a private place and they did not, so to speak, affect any member of the public outside that private place, then no offence was committed. But, nevertheless, the court upheld the binding over. To my mind, despite the argument of counsel for the plaintiff to the contrary, it is quite clear that the Divisional Court was there taking the view that a breach of the peace sufficient for the purposes of binding over can take place in a private place. It is quite true that the decision is not strictly binding on us but it is, of course, of very considerable weight and persuasive authority and, in my judgment, it is correct.

A more recent decision is Robson v Hallett [1967] 2 All ER 407, [1967] 2 QB 939. That is also a decision of the Queen's Bench Divisional Court. The facts were that a police sergeant and two constables went to a house in Gateshead in order to make inquiries about a criminal offence that had been committed. The house had a small front garden. The two constables went into the front garden and up the path leading to the house. They knocked at the front door, but they did not go into the house. Shortly afterwards the sergeant joined them, and the son of the occupier invited him to go in. However, when the sergeant got inside, the occupier, the father, made it clear that, far from being a welcome visitor, he was to leave. The sergeant turned round and was on his way out of the front door when, as he was actually on the threshold of the house, he was attacked by one of the two sons. The constables were still in the garden outside they came to help the sergeant and a mafelaaee ensued. In the event, both the appellants, father and son, were charged with assaulting the constables and the sergeant in the execution of their duty. The assaults which were alleged were those which took place during the mafelaaee in the garden outside but, of course, that was private property. The contention on behalf of the appellants was that all three police officers during the whole of this incident were trespassers, and accordingly they were not acting in the execution of their duty. Lord Parker CJ said ([1967] 2 All ER 407 at 413, [1967] 2 QB 939 at 953):
'In my judgment, therefore, the respondent's cross-appeal in regard to the assault on Sgt. McCaffrey succeeds. In regard to the two remaining assaults, those by the appellants Dennis and Thomas Robson on P.C. Paxton, counsel for the appellants' case is really based on the submission that the officers were throughout and remained trespassers. As I have already said, I think that they were lawfully on those premises when they entered them they, as opposed to Sgt. McCaffrey, had never been told to get out, their implied licence to be there had never been revoked, and, accordingly, they were in the little garden seeing Sgt. McCaffrey set on by the appellant Thomas Robson and a general mafelaaee developing. It seems to me quite impossible in those circumstances to say that they were not acting in the execution of their duty in coming to the assistance of Sgt. McCaffrey, and also avoiding any further breach of the peace. It is really unnecessary to go further, but, even if they had been outside the gate, it seems to me that they would have had abundant right to come on to private property in those circumstances. Accordingly, I would dismiss the appeal by the appellants . . .'

Diplock LJ said ([1967] 2 All ER 407 at 414, [1967] 2 QB 939 at 954--955):
'As regards P.C. Paxton and P.C. Jobson, it does not seem to me to matter whether, when they were denied entrance at the front door, they were trespassers in remaining in the garden if they did remain in the garden after that, because there are two ways in which a person who enters land of another person may fail to be a trespasser. One is leave and licence of the person entitled to possession, to which I have already referred the other is in the exercise of an independent right to proceed on the land. In the case of P.C. Paxton and P.C. Jobson, once a breach of the peace was taking place under their eyes, they had not only an independent right but a duty to go and stop it, and it matters not from that moment onwards whether they started off on their journey to stop it from outside the premises or from inside the premises. They were entitled, once the breach of the peace occurred, to be on the premises for the purpose of preventing it or stopping it.'

Of course, it is quite clear that the point taken by counsel for the plaintiff in this case was not taken in that case, and it is also clear that what was there referred to by Lord Parker CJ and Diplock LJ as a breach of the peace was of the nature of a criminal offence, that is to say assault on a police officer in the execution of his duty. Nevertheless, both Lord Parker CJ and Diplock LJ used words indicating that a breach of the peace could take place and had taken place on private property.

Finally, there is the decision of this court in R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1981] 3 All ER 826, [1982] QB 458. Again the question raised here was not raised in that case, though if it had been relevant it could have been. That was a case in which the Central Electricity Generating Board wanted to conduct investigations into the practicability of constructing a nuclear power station on some privately-owned land in Cornwall. They had statutory power to enter and survey the land after giving notice. However, the landowner refused or purported to refuse consent to them exercising that power, and when the board's representatives attempted to exercise the power their way was blocked by some 60 people. The board obtained an injunction restraining the owner from preventing or interfering with the entry onto the land and, thereafter, the survey commenced. But, after some little time, a number of objectors entered the site and obstructed the work by lying down in front of the machinery or chaining themselves to pieces of equipment. When injunctions were sought against some of them, their places were promptly taken by others. The protestors made it absolutely clear, and it was accepted on all sides, that they intended that their protest should be peaceful, that is to say that they did not intend to use any violence of any sort. However, they were going to use the sort of method to which I have already referred. The board wrote at that stage to the chief constable asking for his assistance in preventing further obstruction. But the chief constable took the view that, since the objectors had made it clear that they intended their protest to be peaceful, no breach of the peace was likely to be occasioned. Thus he declined to give or offer the assistance of his men. The board made an application for an order of mandamus requiring the chief constable to instruct police officers to move the obstructors. The Divisional Court declined to order mandamus to go, and the appeal to this court was against that refusal. This court took the view that the chief constable's appreciation of the legal position was wrong. In the end, having expressed that view in the judgments, to two of which I shall shortly come, this court did not order mandamus to go. I remind myself that, at the time when this case was decided, RSC Ord 53 had not been amended so as to permit a declaration to be made setting out the true legal position. I have no doubt that, were the case to be decided today, there would have been a declaration. Be that as it may, in the course of his judgment Lord Denning MR said ([1981] 3 All ER 826 at 832, [1982] QB 458 at 471):
'I go further. I think that the conduct of these people, their criminal obstruction, is itself a breach of the peace. There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace. Even if this were not enough, I think that their unlawful conduct gives rise to a reasonable apprehension of a breach of the peace. It is at once likely that the lawful worker will resort to self-help by removing the obstructor by force from the vicinity of the work so that he obstructs no longer. He will lift the recumbent obstructor from the ground. This removal would itself be an assault and battery, unless it was justified as being done by way of self-help.'

After a judgment of Lawton LJ agreeing, Templeman LJ said ([1981] 3 All ER 826 at 838, [1982] QB 458 at 479):
'The police are also entitled to assist the board by the police themselves arresting or removing or restraining the obstructors if there is an imminent danger of a breach of the peace or if a breach of the peace is committed in consequence of the resistance, threatened or actual, passive or violent, of an obstructor to his own removal and restraint. It was suggested that the police have no powers in relation to passive resisters on private land. This is not the case. In addition to other powers possessed by the police, they are entitled to enter on private land at the invitation of the owner or at the invitation of any person who himself has a right to be on the land. The board are entitled to enter on the site and to complete the survey and they are entitled to invite the police to enter on the site to assist the board to establish conditions under which the board will be able to complete the survey without any outbreaks of violence taking place.'

In my view, it is clear from those authorities that the courts accepted that breaches of the peace can take place on private land. Indeed, in the passage I have just read from the judgment of Templeman LJ he said as much.

Counsel for the plaintiff submits that if this were indeed the law there would have been no need for the change in the law which is now embodied in ss 4 and 5 of the Public Order Act 1986. In order to illustrate his point, it is sufficient to refer to s 5 of that Act, which is a new provision in the law. Under s 5:
'(1) A person is guilty of an offence if he--(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour . . . within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2) An offence under this section may be committed in a public or private place, except that no offence is committed where the words or behaviour are used . . . by a person inside a dwelling and the other person is also inside that or another dwelling.'

Two points arise from that. The first is that the circumstances of the present case, had they occurred after the 1986 Act came into force, might well have resulted in a charge against the present plaintiff under the 1986 Act. Counsel for the plaintiff points out, that there is now the express statutory provision, but it is a provision which did not exist before and if, he submits in effect, this could be a breach of the peace for which, while not charged with an offence, the offender could be bound over, then the provisions of s 5 are really unnecessary. I do not accept that submission, for two reasons. First of all, that section created an offence, not merely gave a power to bind over for breach of the peace. But, second, in any case, as the provisions of s 5 make clear, the section expressly does not apply to incidents occurring inside a dwelling between persons who are in adjoining dwellings. Therefore, if the situation which arose in the present case arose not in a shop but in a dwelling house, it would still not fall within s 5 or, indeed, s 4 of the 1986 Act.

The main argument of counsel for the plaintiff is more wide-ranging. He submits that, in order for there to be a breach of the peace on private premises, the authorities justify the proposition that it is necessary to find some disturbance which would affect members of the public, or at least one other person, outside the premises themselves. If the only people who are disturbed in any way are those inside the premises, those immediately concerned in the altercation, then there is no breach of the peace, he submits. During argument, I asked him to seek to distinguish a case of an abusive altercation arising between two people in an isolated house from a similar altercation arising between the same two people in a terrace house with thin walls and neighbours who could hear everything that was going on. Counsel agreed that the logic of his argument meant that in the latter case there would be a breach of the peace, whereas in the former there would not. That, in my view, cannot be a very sound basis on which to find the limits of this particular jurisdiction.

In my judgment, there is no warrant for this restriction on the bounds of what may constitute a breach of the peace for the purposes of entitling a police officer, who genuinely suspects on good grounds that a breach of the peace may occur, to make an arrest. The authorities do not provide any warrant for that. Indeed, if the submissions of counsel for the plaintiff are correct, the answer which the judge should have given to the question posed was not 'No. A breach of the peace may not take place on private premises', which is the answer, I take it, the plaintiff really desires, but 'Yes. A breach of the peace may take place on private premises but only in defined circumstances, namely if a member or members of the public are likely to be disturbed'. Further than that, I accept that the effect on the public may be relevant in this situation. For instance, if abusive words are spoken during the course of a public gathering or a public meeting, it may much more readily result in a breach of the peace than if precisely the same words are spoken in a private place between two persons. Thus, the question whether or not any large number of members of the public are or are not likely to be involved or to overhear the words is one which, as a matter of fact, may be very relevant to the magistrates' decision. But, as a matter of law, for the reasons I have sought to give, in my view, the judge came to an entirely right conclusion. I would, therefore, dismiss this appeal.

JUDGMENTBY-2: SIR ROGER ORMROD
JUDGMENT-2:
SIR ROGER ORMROD. I agree, and there is nothing that I can usefully add.
JUDGMENTBY-3: PURCHAS LJ

JUDGMENT-3:
PURCHAS LJ. I also agree that his appeal fails. The issue before the court was a question raised as a preliminary point for the judge at first instance in the terms: is it possible for there in law to be a breach of the peace on private premises? Although later in his judgment the judge adjusted the phraseology of that proposition, the sense of it remained the same.

Counsel for the plaintiff, in his admirable submissions, acknowledges that the proposition as phrased was too wide to be sustained and in his argument has contended that, unless there is some involvement of the public in the broadest sense, a breach of the peace cannot take place on private premises. That involved an important qualification to the general proposition in the question which was asked of the judge. Clearly a purely domestic dispute will rarely amount to a breach of the peace. But, in exceptional circumstances, it might very well do so. Whether those particular circumstances which come to pass on private premises are sufficient to support a reasonable apprehension that a breach of the peace was about to occur will depend on the circumstances in which the preventive steps called for under the Justices of the Peace Act 1361 are taken.

Glidewell LJ has referred to Wilson v Skeock (1949) 113 JP 294 and R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1981] 3 All ER 826, [1982] QB 458. Whether or not in this case Pc Smith reasonably anticipated a breach of the peace will be a matter for the investigation of evidence in the future. I am not prepared to say that a breach of the peace cannot take place on private property. The difficulty with the submission of counsel for the plaintiff, even with the qualification for which he contends, is that whether or not there is established a threat of disturbance to a third party brings obvious difficulties particularly when the case involves conduct which might involve a breach of the peace, rather than conduct which has constituted such a breach. Once it is accepted that a breach of the peace can take place on private premises, then to attempt to place some qualification on it as a matter of law rather than as a matter of evidential approach and examination is, in my judgment, very undesirable and would only hamper this broad approach, which has been well recognised since the fourteenth century and has recently been defined in R v Howell [1981] 3 All ER 383, [1982] QB 416.

For those reasons and for the reasons given by Glidewell LJ I agree that this appeal fails.

DISPOSITION:
Appeal dismissed.
SOLICITORS:
Megson Ponsonby, Oldham (for the plaintiff); R C Rees, Salford (for the defendant).