R v Howell  QB 416;  3 All ER 383
WATKINS LJ: At the Crown Court at Coventry on 10 August 1979 the appellant, then 28 years of age, and a young woman, Tina McNulty, were tried on an indictment which charged each of them, in separate counts, with an assault occasioning actual bodily harm on two police constables named Hammersley and Lewis respectively. McNulty was acquitted altogether. The appellant was acquitted of assaulting Pc Lewis but found guilty of the assault on Pc Hammersley whereupon he was sentenced by Mr Recorder J A D Owen QC to three months' imprisonment suspended for two years. He appeals against that conviction.
On 2 September 1978 about seventy young people, white and coloured, attended a party at a house called 12 Guild Street, Coventry. It was a very noisy affair. Neighbours were disturbed and upset by the loudness of the music being played. In the early hours of the following morning the party got out of control. Many of those attending it went into the street outside the house and caused an uproar.
...Soon afterwards a police inspector and a number of police constables appeared on the scene. The inspector advised the party-goers who were in the street either to go back into 12 Guild Street or go home, and said that if they did not take his advice they would be arrested for committing a breach of the peace. So far as is known no violence had been used by anyone up to that time.
The arrival of the police was resented. The inspector's advice was ignored. There was loud jeering, cries of 'police brutality', accusations that the police were interfering only because it was a West Indian party and much foul language used. Some pushing and shoving began which did not, fortunately, erupt into acts of serious violence. However, a few people were arrested for breaches of the peace, placed in a police van and taken away to be charged.
Meanwhile, Pc Hammersley and Lewis decided to encourage the appellant, who is coloured, McNulty, who is white, a coloured youth, a white youth and a coloured girl who had all been to the party and who were being noisily offensive and generally making a nuisance of themselves to go to their homes. The constables were treated to much foul abuse from these people who slowly but unwillingly moved away from the scene denying that they were causing the breach of the peace of which Pc Lewis said he accused them.
Pc Hammersley and Lewis followed them to ensure that they did not return in view of their apparent reluctance to depart. As they did so the appellant and others in very loud voices swore foul oaths as they stopped in their tracks every now and again, and one or more of them said that they were being picked on merely because they were black. All that was said could have been heard by local residents who had been aroused from their beds and who were in the street where the constables were moving the group on their way.
Pc Hammersley said to the appellant: 'If you swear once more you will be arrested for disturbing public order.' The appellant said that the foul language he was using was not disturbing public order, to which Pc Hammersley replied: 'At 4 am in the morning, and in the middle of the street, it is. Now go home or you will be arrested.' McNulty then exclaimed: 'It will take more than two of you to take him in,' and the appellant made another foul and offensive remark about police brutality. By now this encounter had become thoroughly unpleasant and as likely as not to become more so unless brought to an end.
Consequently, Pc Hammersley moved forward, caught hold of the appellant's right arm and said: 'I am arresting ... ' He had no opportunity to say anything further because the appellant punched him very hard in the face and most of the group set on him and Pc Lewis. In the course of the violent struggle which ensued, Pc Lewis drew his truncheon before he and Pc Hammersley gained the upper hand and arrested the appellant and McNulty. Pc Hammersley who had been jumped on by McNulty held onto the appellant who lashed out at him again. They then exchanged several blows before the appellant was finally subdued.
The appellant described this account of what happened as a complete fabrication by the constables. He was, he told the jury, the innocent victim of their perjury. The truth of the matter was that he was walking away from the scene peacefully when Pc Lewis came from nowhere and said: 'You are going to get it.' He was then attacked by both constables and hit on the head with a truncheon by Pc Lewis several times before being arrested without any cause whatsoever. He did not lay so much as a finger on Pc Hammersley. His version was supported by McNulty and a woman who claimed to have witnessed from nearby what happened between the constables, the appellant and his companions.
....We cannot tell who or what the jury believed, and whether the jury convicted on the basis that they believed the appellant was lawfully arrested or that he was using unreasonable force in a proper endeavour to escape from unlawful arrest we cannot be sure. At best we feel able to say there are indications that the verdict was founded on there having been a lawful arrest.
The appeal is based on points of law most of which were argued before the recorder at the end of the Crown's case, when counsel for the appellant submitted that the jury should be directed to acquit the appellant at that stage of the proceedings since he had no case to answer. In summary form this submission was based on the ground that the appellant's arrest was unlawful because no breach of the peace had been proved against him. Accordingly, on the supposition that the appellant had, contrary to his own account of the matter as put in cross-examination, struck Hammersley, he was acting lawfully in escaping from a wrongful arrest in that he was using no more force than was necessary for the purpose.
It is obvious from what has been said already of the actual termination of the proceedings that the recorder rejected counsel's submission and allowed the trial to proceed to the appellant's conviction by the jury.
What was the lawful excuse, if any, which caused Pc Hammersley, according to him, to arrest the appellant? It was, he said when being cross-examined, a breach of the peace committed by the appellant, with or without the assistance of his companions. This has, of course, to be put alongside what he told the appellant immediately prior to arrest, which was 'You will be arrested for disturbing public order'.
When re-examined he told the jury that he was aware there had previously been some kind of incident in the house where the party had taken place as he followed the appellant down the street. He believed that if he had not followed the appellant he would have returned to the vicinity of that house and worked the scene up again with shouting and swearing. His decision to arrest arose out of what he saw and what he feared. The appellant was obviously refusing to be quiet and to go home and there was a possibility of his returning to the vicinity of the house and causing further trouble. He saw a number of local residents in their front gardens who were clearly disturbed by what was going on.
Although Pc Hammersley at one stage of his evidence said that he was not thinking of violence as he was following the group, it seems to this court that it was open to the jury to infer from the entirety of his evidence that he had feared a breach of the peace arising from the imminent use of violence by the appellant as he was following him or, if the appellant was allowed to return to it, at the scene outside 12 Guild Street.
It is possible that Pc Hammersley was in the heat of the moment confusing his power of arrest at common law for a breach of the peace with a similar power of arrest for offensive conduct conducive to a breach of the peace contrary to s 5 of the Public Order Act 1936. However, the appellant was not charged with this statutory offence. Accordingly, and for the additional reason that the appellant was told at the police station on arrival there that he had been arrested for 'a breach of the peace', we think it was open to the jury when deciding whether there had been a lawful arrest to have regard to the constable's power at common law only. Since this was the effect of the manner in which the jury was directed on this matter by the judge we are not, strictly speaking, called on to decide whether an arrest for a breach of the peace at common law would serve also to constitute a lawful arrest under s 7(3) of the 1936 Act for committing an offence under s 5. But we feel it right to say our tentative view is that it would serve this dual purpose, seeing that a breach of the peace is involved in both offences.
It is submitted that the recorder was wrong to refuse to direct the jury to acquit the appellant at the close of the Crown's case. His refusal, it is said, was based on errors of law and a failure to appreciate that there was insufficient evidence to establish that there had been a breach of the peace involving either the actual use of violence or a reasonable apprehension of the use of violence which would have entitled Pc Hammersley to arrest the appellant. The comment already made on the quality of it plainly indicates that we do not agree that the evidence available was not sufficient to be considered by the jury for this purpose.
The recorder's initial and fundamental error of law lay, so it is said, in his comprehension of the extent of the power of arrest for the offence, and in the definition he chose to adopt, of 'breach of the peace'. Counsel for the appellant submits in respect of the power of arrest that the recorder should have followed the ruling in R v Podger  Crim LR 524 of a recorder sitting in the Crown Court at Bristol which was to the effect that the power to arrest for a breach of the peace at common law is confined to cases in which a breach was either committed in the presence of the arrestor or where one had been committed and its renewal was threatened.
The recorder in the present case declared the definition to include also a power of arrest where there is reasonable ground to suppose a person who has caused no trouble previously is about to commit a breach of the peace. In other words he said that a threatened breach is a valid ground of arrest.
This power, if it then did, was not acknowledged to exist in Stone's Justice's Manual (3rd Edn, 1845, p 15) which sets out the common law power of arrest in these terms:
'A private person may apprehend without a warrant, on view of a breach of the peace, and before the affray is over, and deliver the offender to a constable; and he is justified in giving in charge, and a constable in arresting without a warrant, a party who has been guilty of a breach of the peace, if there are reasonable grounds for apprehending its continuance or immediate renewal, but not otherwise. (Baynes v. Brewster ((1841) 2 QB 375, 114 ER 149) and cases there cited.) The general rule is "that, for the sake of the preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shews that the public peace is likely to be endangered by his acts" (Timothy v. Simpson ((1835) 1 Cr M & R 757 at 762, 149 ER 1285 at 1288)).
'BY CONSTABLES-A constable may arrest without a warrant on a charge made, having reasonable ground to suspect that a felony has been committed, though none have in fact-He may also arrest in all cases in which a private individual may (see 7 JP JO 237). A constable may apprehend without a warrant on view of a breach of the peace, but not after the affray is over unless there be reasonable grounds for apprehending its continuance or immediate renewal. (Baynes v. Brewster and cases there cited.) A constable may also apprehend any person obstructing him in the execution of his duty.'
The comments and commentary on R v Podger  Crim LR 524 which accompany the report of it are particularly noteworthy. They suggest that the power exists now even if it was correct to say that it did not in 1845. They are:
'If this decision be right then Smith and Hogan, Moriarty, Glanville Williams and Halsbury's Laws 3rd and 4th Editions are wrong. It is supported (in the more used texts) only by Stone, Justices Manual 1978, I 567 and II 3165. Further the statement in Archbold, Criminal Pleading Evidence and Practice (39th ed, 1976) at p 2802 (that all common law powers of arrest without warrant are now superseded by section 2, Criminal Law Act 1967) cannot be right in any event and was disowned by both sides. The learned Recorder approved of only the first sentence in Halsbury's Laws (4th edn), Vol. II, para. 108: "A private person or a constable may at common law arrest without warrant anyone who, in his presence commits a breach of the peace, where the offence is continuing or, if it is not continuing, where there is reasonable ground for apprehending its renewal. A private person or a constable may also arrest without warrant anyone who there is reasonable ground to suppose is about to commit or about to renew a breach of the peace in his presence."
'Commentary. It is clear that where a breach of the peace has occurred but it is over and there is no ground for believing that it will be renewed, there is no power to arrest. It is also clear that where there are reasonable grounds for supposing that a breach of the peace will be renewed, an arrest in order to prevent it is lawful. This is so even where the constable did not himself witness the first breach but it has been reported to him. Clearly the fact that a breach of the peace has occurred is important evidence of the existence of reasonable grounds for apprehending a further breach. It is submitted, however, that that is all it is; it is not a condition precedent and none of the authorities referred to, including Light ((1857) Dears & B 332, 169 ER 1029), suggest that it is a condition precedent. It is plain that the law is here concerned not with what has happened but with what is reasonably expected to happen. It would be wrong if a constable (or any other person) had overwhelming evidence for believing that a grave breach of the peace was about to be committed in the immediate future but could do nothing to prevent it because no previous breach had occurred.'
Professor Glanville Williams in his article 'Arrest for Breach of the Peace'  Crim LR 578 at 586 in which, inter alia, he makes reference to R v Light, stated:
'It seems clear that there may be an arrest for breach of the peace which is reasonably apprehended in the immediate future, even though the person arrested has not yet committed any breach.'
We share the opinions expressed in the foregoing quotations. 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. R v Podger involved the examination, by the recorder who tried it, of a number of authorities, including Light's case, all of which we have perused. R v Podger was in our opinion wrongly decided. 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. In those instances of the exercise of this power which depend on a belief that a breach of the peace is imminent it must, we think we should emphasise, be established that it is not only an honest, albeit mistaken, belief but a belief which is founded on reasonable grounds.
A comprehensive definition of the term 'breach of the peace' has very rarely been formulated so far as we have been able, with considerable help from counsel, to discover from cases which go as far back as the eighteenth century..... [W]e cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks on a person's body or property.
In 11 Halsbury's Laws (4th Edn) para 108 it is stated:
'For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a person's wrongful act. Mere annoyance and disturbance or insults to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.'
....The statement in Halsbury's Laws of England is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word 'disturbance' when used in isolation cannot constitute a breach of the peace. 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.
The recorder in the present case in ruling on the submission clearly regarded violence as of the essence of a breach of the peace. So we find that neither in that nor in any other way did he misdirect himself on the associated matters of the power of arrest and the definition of a breach of the peace.