‘Quis custodiet ipsos custodes?’- The Satires of Juvenal
Over the years, the New South Wales police have received expanded powers through a raft of legislative amendments. It is evident that in dealing with any given circumstance that arises during the execution of their duties, officers may rely on both the common law and statutory powers to give effect to powers such as a warrantless arrest. In context of this power, the common law concept of the breach of peace deserves particular attention due to the dangers of misuse or abuse in its interpretation by the police. This paper will discuss how the common law and the Law Enforcement (Powers and Responsibilities) Act (2002) ...view middle of the document...
Eventually, this developed into an analogy between crime and a thing done ‘against the peace and dignity of the state.’ This historical limitation constrains the current assessment of the concept, particularly with respect to its content and creates uncertainty as to its future developments. Similarly, there continues to be no concrete definition or description discernible in statute. Both issues present the serious risk of misuse of power by deferring to the police’s unchecked discretion as to what a breach of peace is.
The current and widespread acceptance of the power stems from the English Court of Appeal judgment of Watkins LJ in R v Howell, which dealt with an arrest without warrant for an apprehended breach of the peace. His Honour (on behalf of the court) stated in obiter,
Unless there has been an act done or threatened to be done which either actually harms a person, or is likely to cause such harm, or which puts someone in fear of such harm being done … there is breach of the peace whenever actual harm is done or is likely to be done to a person or in his presence of his property or a person in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance.
The nature of the breach of peace is not an offence in itself, and though it may give rise to an offence recognised under law, it is preventative and not punitive. Such offences include, amongst other things, actual assault, resisting arrest, causing public disorder and alarm through wrongful conduct, or obstruction of a police officer in the execution of their duties. Mere annoyance, disturbance or abusive conduct is insufficient to warrant an arrest except if there is some element of actual or threatened personal violence. Another fundamental aspect of the concept is it remains central to the common law powers of preventing public disorder such as unlawful assembly. In prevention of public disorder, the powers occasioned to police (and some to ordinary citizens) include trespass (enter premises), restraint and detention, use of reasonable force, move-on directives, property confiscation and arrest (as is necessary and reasonable in the circumstances) of the person committing, or reasonably appears to be about to be committing, such a breach. Thus, any private citizen may undertake, though promptly, reasonable steps – except with respect to arrest under apprehension of breach of peace – to prevent the occurrence, continuance or threatened renewal of a breach of peace in their presence.
Of significance is that the concept is characterised as an imperfect obligation (rather than merely a right) of an ordinary citizen and should be contrasted to the perfect duties that arise under a police officer’s public role which is met with reproach, civil liability or disciplinary action if not executed. Though it is yet to be tested in the courts, it is unlikely that police will be liable for a breach, such as the tort of negligence, of its...