Understanding Breach Of Peace: Case Law Explained

Breach of the peace is a generic term for a criminal offense that disrupts the public peace or order. While it is not an offense that can be charged, individuals can be arrested for it in many countries, including the US, UK, and Australia. The specific definition of breach of the peace varies between these countries and even between states in the US. For example, in Wyoming, playing unreasonably loud music is considered a breach of the peace, whereas in New South Wales, shouting loudly in public does not constitute a breach of the peace. Case law is used to determine what constitutes a breach of the peace, with leading cases including Smith v Donnelly and Edwards v. South Carolina.

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Breach of the peace in the UK and US

Breach of the peace is a legal term used in constitutional law in English-speaking countries and in a public order sense in the United Kingdom. It is a form of disorderly conduct that disturbs the peace of a community. Breach of the peace covers a wide range of actions, including riotous behaviour, disorderly behaviour, public fighting, aggressive begging, public drunkenness, and threatening letters. It is important to note that the definition of breach of the peace does not include noise, but it does include behaviour that would cause concern to other people.

In England and Wales, criminal penalties apply to behaviour leading to or liable to cause a breach of the peace. While it is not an offence punishable by a fine or imprisonment, individuals can be arrested to "prevent a further breach of the peace". This means that the police can detain or arrest an individual if they have reasonable grounds to believe that the individual will continue their course of conduct and cause a breach of the peace.

In Scotland, breach of peace is a specific criminal offence prosecuted daily in sheriff courts. The maximum punishment if a case is remitted to the High Court is imprisonment for life, although such severe punishment is now rare. One of the leading cases in Scots law is Smith v Donnelly, a case concerning a Faslane protester.

In the United States, breach of the peace is a generic phrase to describe a criminal offence that violates the public peace or order. Most states have laws criminalizing certain speech and conduct that fall under this category. For example, in Nebraska, intentionally disturbing the community's peace and quiet is a Class III misdemeanour. The interpretation of breach of the peace laws can be broad, and prosecutions are subject to constitutional constraints. During the 1960s, civil rights activists were frequently arrested under breach of the peace statutes, and many of these convictions were later overturned by the Supreme Court.

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Case law in New South Wales, Australia

Breach of the peace is a legal term used in constitutional law in English-speaking countries and in a public order sense in the United Kingdom. In New South Wales, Australia, the case of State of New South Wales v Bouffler [2017] NSWCA 185 expressed the meaning of a "breach of the peace" as including "a wide range of actions and threatened actions that interfere with the ordinary operation of civil society".

A mere disturbance that does not involve violence or a threat of violence does not constitute a "breach of the peace". However, the definition of breach of the peace is not exhaustive and may be constituted in many ways. Each case will depend on its own facts.

The case of Neave v Ryan [1958] Tas also provides an example, where the court stated that shouting loudly in public or addressing a crowd in loud tones does not constitute a disturbance of the public peace. The court reasoned that if it did, it would endanger free speech, and that "public peace" is concerned with public order, not "peace and quiet".

The case of Nicholson v Avon extended the ambit of breach of peace to include conduct that disturbed the sleep of citizens, with Mark J stating that "there is no conduct more likely to promote violence than prolonged disturbance of the sleep of neighbours by noise and behaviour of the kind disclosed [by the facts]".

The Australian courts have adopted a broader approach to breach of the peace, suggesting that the scope of breach of peace is not confined to actual or imminent violence. This is demonstrated in the case of Kuru v New South Wales, which illustrates the application of statutory and common law protections favouring the rights of citizens within their homes.

In determining what constitutes a reasonable apprehension of an imminent breach of the peace, courts refer to previous cases or case law, also known as "common law". For example, in Albert v Lavin [1981] and Paddington v Bates [1961], it was established that a police officer must reasonably anticipate an imminent breach of the peace, and that there must be a real possibility of it occurring.

Civil rights activists and breach of the peace

During the 1960s, civil rights activists were frequently arrested under breach of the peace statutes. However, many of these convictions were overturned by the Supreme Court. Breach-of-the-peace laws typically cover conduct that is disorderly and disturbs the peace of a community. Most states have such laws criminalizing certain speech and conduct. For example, in Garner v. Louisiana (1961), African American protestors were arrested and charged with disturbing the peace for sitting quietly at a "whites-only" lunch counter. The Court overturned their convictions, holding that the city lacked sufficient evidence to support a breach of the peace charge.

In the United States, breach of the peace is not an offence punishable by fine or imprisonment. However, persons who cause public disturbances that breach the peace may be fined, imprisoned, or both. Due to loss of liberty, property, or both, those convicted of breach-of-the-peace violations may assert due-process claims. As breach-of-the-peace laws are broad in scope and regulate a wide range of conduct and speech, many have been challenged as violating constitutional rights.

During the civil rights movement, peaceful protests and demonstrations were a common tactic used by activists to bring about an end to segregation, Black voter suppression, and discriminatory employment and housing practices. Despite their peaceful nature, these protests often resulted in violence and arrests. For example, on May 4, 1961, 13 "Freedom Riders" embarked on a bus tour of the American South to protest segregated bus terminals. They were met with violence in Montgomery, where a large white mob attacked them, causing a two-hour riot. Despite this, the civil rights movement remained largely committed to nonviolence.

The efforts of civil rights activists and protesters led to significant legislation, including the Civil Rights Act of 1964, which guaranteed equal employment for all, limited the use of voter literacy tests, and integrated public facilities. The Voting Rights Act of 1965 went even further, banning all voter literacy tests and providing federal examiners in certain voting jurisdictions. The Fair Housing Act of 1968 prevented housing discrimination based on race, sex, national origin, and religion. These laws represented a major step forward in the fight for equality and freedom for all.

Scots law and breach of the peace

Breach of the peace is a legal term used in constitutional law in English-speaking countries and in a public order sense in the United Kingdom. It is a form of disorderly conduct. In England and Wales, all criminal offences recognised by English law involve a breach of the King's peace.

In Scotland, breach of the peace is a specific criminal offence prosecuted daily in sheriff courts. It is defined as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". This common law definition means that its definition is contained within previously decided cases as opposed to legislation.

One of the leading cases in Scots law is that of Smith v Donnelly, a case concerning a Faslane protester. Pamela Smith was charged with breach of the peace for lying down on the roadway, disrupting the free flow of traffic, and refusing to desist when asked to do so. Smith argued that she had engaged in similar conduct before and that it was arbitrary whether she would be arrested for it or not. The case essentially asked the question: is "breach of the peace" such a vague crime that it breaches Article 7 of the European Convention on Human Rights (no punishment without law)?

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 created an offence of behaving in a threatening or abusive manner in a way likely to cause a reasonable person to suffer fear or alarm. This offence is similar to the Section 5 Public Order Act in England and Wales. Charges of breach of the peace are now much rarer than they used to be, given the overlap between the two offences.

Arrest and charge in breach of the peace cases

Breach of the peace is a legal term used in constitutional law in English-speaking countries and in a public order sense in the United Kingdom. It is a form of disorderly conduct. In England and Wales, all criminal offences recognised by English law involve "a breach of the King's peace".

Breach of the peace is not a criminal offence, and one cannot be charged with it. However, a person can be arrested for it. In England and Wales, constables (or other persons) are permitted to arrest a person to "prevent a further breach of the peace". This allows the police or the public to arrest a person before a breach of the peace has occurred. This is permitted when it is reasonable to believe that the person would continue with their course of conduct and that a breach of the peace would occur.

A constable may arrest any person, without a warrant, who commits a breach of the peace. A member of the public may not arrest a person for behaviour amounting to no more than a breach of the peace. The police may use this power to arrest groups of people and then release them far from the site of the action, without taking them to a police station. If the police deem that a person has committed a breach of the peace, or that their release is likely to cause a further breach, they can be held overnight and put in front of a judge to be "bound over" for a period of time and some cash, usually around £100. This means that the person agrees to 'keep the peace' for a certain period and pay the specified sum if they do not keep to the agreement. This is not a conviction and will not be on a permanent record.

In the United States, prosecutions for breach of the peace are subject to constitutional constraints. In Terminiello v. City of Chicago (1949), the United States Supreme Court held that a Chicago ordinance banning speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First Amendment to the United States Constitution.

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