Threat to peace must be real and imminent

Tuesday Law Report; 16 June- 1998 Foulkes v Chief Constable of the Merseyside Police Court of Appeal (Lord Justice Beldam, Lord Justice Schiemann and Lord Justice Thorpe) 9 June 1998

Kate O'Hanlon,Barrister
Monday 15 June 1998 23:02

A CONSTABLE may not arrest a person who is acting lawfully for an apprehended breach of the peace unless there is a real and imminent threat to the peace.

The Court of Appeal allowed the appeal of Trevor Foulkes against the decision to dismiss his claim against the Chief Constable of the Merseyside Police for wrongful arrest and false imprisonment.

The plaintiff had called the police after he had been locked out of his home following a family argument. The police officers had established that the plaintiff's family did not want him to go back into the house, and had tried to persuade him to go away and cool down. The plaintiff had refused, insisting that he wished to return to the house.

One of the officers had cautioned the plaintiff, telling him that he would be arrested to prevent any breach of the peace if he did not go away until tempers had cooled. He had still refused to go, and had been arrested. The arresting officer had thought that if the plaintiff had returned to the house an argument, and then violence, would have ensued, and a breach of the peace would have been caused by his actions.

The plaintiff commenced proceedings against the Chief Constable of the Merseyside Police, claiming damages for wrongful arrest and false imprisonment. His claim was dismissed and he appealed.

Nigel Ley (Reay & Co, Liverpool) for the plaintiff; Anne Whyte (Weightmans, Liverpool) for the Chief Constable.

Lord Justice Beldam said that it had been conceded before the judge that the police officer had honestly believed that arrest was necessary to prevent a breach of the peace and, in the light of that concession, the only remaining question was whether there had been reasonable grounds in law for the arrest and subsequent detention of the plaintiff.

The judge had found that the police officer had had to decide on the spur of the moment whether the peace of the street was a concern, or whether he could safely leave the plaintiff where he was; that the plaintiff's family disputes that morning were plainly out of hand; and that in the light of matters known to the officer he had had reasonable grounds for believing that the plaintiff might cause harm or damage to property, or might provoke it, and that there was an imminent chance of a breach of the peace.

The main argument advanced for the plaintiff on the appeal was that the matters identified by the judge had not justified arrest. It had been submitted that, where a person was behaving lawfully and no breach of the peace had taken place in the presence of a constable, the mere fact that the constable feared that a person acting lawfully in trying to re-enter his home might provoke violence on the part of others was an insufficient basis for arrest on the ground of apprehended breach of the peace.

The common law power of a police constable to arrest where no actual breach of the peace had taken place, but where he apprehended that such a breach might be caused by apparently lawful conduct, was exceptional and should only be exercised in the clearest of circumstances, and when the constable was satisfied on reasonable grounds that a breach of the peace was about to occur or was imminent. In the present case the officer had tried persuasion but the plaintiff had refused to be persuaded or to accept the sensible guidance he had been given, but that was not a sufficient basis to conclude that a breach of the peace was about to occur or seriously threatened. There had to be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who was not at the time acting unlawfully.

The factors identified by the judge did not measure up to a sufficiently serious or imminent threat to the peace to justify arrest. Accordingly, although the police officer had been acting honestly and from the best of motives, he had not had reasonable grounds for the arrest.

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