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Percy v DPP
[1995] 3 All ER 124, [1995] 1 WLR 1382, 159 JP 337, [1995] Crim LR 714, [1995] 09 LS Gaz R 38

MAGISTRATES - MAGISTRATES’ COURTS - PENAL AND CIVIL POWERS - RECOGNISANCES - GROUNDS FOR REQUIRING RECOGNISANCES - WHETHER BREACH OF PEACE HAVING TO INVOLVE VIOLENCE OR THREAT OF VIOLENCE

On 24 April 1989 the appellant entered a military air base on five separate occasions by climbing over the perimeter fence. The appellant’s aim was to stage a peaceful protest about the use of the base and the abuse of byelaws relating to the base. At no time did she commit or threaten any violence or cause any damage and on each protest attempt she was escorted off the base without incident. The Crown Prosecution Service laid a complaint against the appellant and applied to the justices for an order requiring her to enter into a recognisance to be of good behaviour and to keep the peace. Although there was no evidence that the appellant had used or threatened violence, the justices held, on the civil standard of proof, that a breach of the peace had been reasonably apprehended since the appellant’s repeated presence on the base could have provoked service personnel to violence. The justices ordered that the appellant be bound over to keep the peace and be of good behaviour for a period of 12 months and when she refused to consent to being bound over they committed her to custody for 14 days under s 115(3) of the Magistrates’ Courts Act 1980.

The appellant appealed by way of case stated, contending that a breach of the peace had to involve violence or the threat of violence. The questions arose: (i) what had to be established to constitute a breach of the peace, (ii) whether a civil trespass alone could amount to a breach of the peace and therefore whether the appellant’s actions could have led to a breach of the peace, and (iii) what was the applicable standard of proof.

Held, a breach of the peace in the context of the justices’ powers to bind a person over to keep the peace under s 115 of the 1980 Act had to involve violence or the threat of violence. The violence did not have to be perpetrated by the defendant himself; it was sufficient if his conduct was such that violence from some third party was a natural consequence of his action, thus giving rise to a real risk, rather than a mere possibility, of some actual danger to the peace. It followed that a civil trespass could not of itself amount to a breach of the peace unless the circumstances were such that violence would be the natural consequence as, for example, where trespassers made continued incursions in the face of threats to use violence to remove them. Since on the facts there was no evidence before the justices which entitled them to find that the appellant’s non-violent acts of trespass would provoke service personnel to violent reaction, it followed that her conduct was not capable of amounting to a breach of the peace. The appeal would therefore be allowed and the order made by the justices quashed.

Per curiam. Although it was not necessary to categorise proceedings to bind over for breach of the peace as either criminal or civil, in view of the consequence that failure to comply with the order to enter into a recognisance could result in imprisonment, the criminal standard of proof, namely proof beyond reasonable doubt, was the appropriate standard.