ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE MCKENNA)
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
WYECLIFFE WILLIAMSON
Respondent/Claimant
-v-
CHIEF CONSTABLE OF THE WEST MIDLANDS POLICE
Appellant/Defendant
(Computer-Aided Transcript of the Stenograph Notes of
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MISS A CHATTERJEE (instructed by the Legal Services Department, Birmingham) appeared on behalf of the Appellant.
MR R DE MELLO (instructed by Messrs Mian & Co., Birmingham) appeared on behalf of the Respondent
J U D G M E N T
(As approved by the Court)
Crown copyright©
LORD JUSTICE DYSON: The issue raised on this appeal is whether the provisions of the Police and Criminal Evidence Act 1984 ("PACE") apply where a person is arrested and detained for a breach of the peace. The facts can be stated very briefly.
At about 11.45 am on Sunday, 23rd February 1997, the claimant was arrested by officers of the West Midlands Police Force at his home at flat 26, 17 Handsworth New Road, Birmingham, for breach of the peace. He was taken to the Rose Road Police Station where he arrived at 12 o'clock. The police had been called to deal with an argument between the claimant and a neighbour called Mr Gilroy, in which the claimant brandished a large kitchen knife. There had been a heated exchange but no injuries had been caused to either man. The officers arrested the claimant in order to stop the breach of the peace that they believed was taking place and to prevent any further breach of the peace.
At the police station the arresting officers relayed what had happened to the custody officer, Sergeant Helliwell. At 14.25 he recorded in the custody record book:
"In all the circumstances, it is believed the claimant's action warrants being placed before a magistrates' court for a bind over to keep the peace."
The officers were of the opinion that PACE did not apply to the present case, and that, having decided to take the claimant before the justices, they had no power to release him until after he had appeared before the magistrates' court. In the result, therefore, the claimant was detained in police custody overnight. He was taken to the Birmingham Magistrates' Court the following morning. His case was heard at 12.30. The justices simply made no order. The evidence does not disclose whether the police sought an order binding him over or not.
By proceedings issued on 14th December 1999, the claimant sought damages against the defendant for wrongful arrest and unlawful detention. It was his case that there were no grounds for arresting him for breach of the peace; alternatively, that he should have been released before his arrival at the Rose Road police station.
The judgment.
The judge held that the police officers were entitled to enter the claimant's home in order to carry out a preventative arrest. The arrest therefore was lawful. He then considered whether the officers were correct in believing that
"they had no power, having determined that the appropriate course of action was to have the claimant appear before the magistrates' court to release the claimant until that appearance before the magistrates' court took place."
It was submitted to the judge by Mr de Mello on behalf of the claimant that: (a) PACE gave the police the power to release the claimant, if necessary on bail, before he appeared before the magistrates, and (b) the custody officer ought to have appreciated at some point during the Sunday afternoon that there was no longer a real risk of a repeated breach of the peace and released the claimant at that time. The judge said that he saw the "force" of those submissions. He considered that the European Convention on Human Rights ("ECHR") required the term "offence" where it appears in PACE, and in particular in section 34(1), to be interpreted so as to include breaches of the peace. He then said this at page 10B:
"As it seems to me, as at 1425 hours on the Sunday afternoon, the custody officer should have addressed his mind to whether he concluded, on the evidence available to him, that a risk of the breach of the peace had ended and/or whether it would be appropriate to bail the claimant, as opposed to seeking a bind over. This, as I say, for understandable reasons, he did not do.
Even if he had done, I take the view, on the evidence that was available to him, he would not at that point have concluded that the risk of a repeated breach of the peace had dissipated. It can be inferred from the decision which he made to seek a bind over at that time that he had concluded, at that point at least, that there was still a risk of a continued breach of the peace.
To my mind, the question is whether at some later time that day, had this custody officer or Inspector Barton addressed their mind to the correct question, a different view would have or should have been taken.
As it seems to me, there must have come a point during the course of that afternoon when any reasonable custody sergeant would have come to the view that the claimant's frame of mind was such that any repetition was no longer a reasonable prospect. Doing the best I can, I conclude that that time would have been reached by, at the latest, 6 pm on that evening, by which time the claimant would have had some six hours to reflect on the events of the day. By that time, at the latest, therefore, in my judgment, this claimant should have been released from detention."
The scope of this appeal
The judge gave the defendant limited permission to appeal. In giving his reasons for granting permission to appeal, he said that he had accepted the submissions of Mr de Mello as to the proper interpretation of PACE in the light of Steel and Others v United Kingdom 28 EHRR [1998] 603:
"I therefore concluded that the claimant should have been released once the breach of the peace had ceased which the police failed to do since the custody officer considered that he had no power to release until after the claimant had been placed before the magistrates. I was told that there was no authority on this point which is clearly one of general application in the case of arrests for breach of the peace, and therefore I granted permission to the defendant to appeal on this aspect."
The scope of the appeal is therefore limited to the question of interpretation identified by the judge, which is whether breach of the peace is an offence within the meaning of PACE, so that the provisions of PACE apply to an arrest and a detention for breach of the peace. It follows that it is not open to the defendant to challenge the finding by the judge that by 1800 hours on the Sunday afternoon, the custody officer should reasonably have concluded that "the claimant's frame of mind was such that any repetition was no longer a reasonable prospect."
The relevant provisions of PACE.
Part 11 of PACE deals with powers of entry, search and seizure. Section 17 provides for entry and search of premises without a search warrant. It provides:
Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose -
of executing -
a warrant of arrest issued in connection with or arising out of criminal proceedings; or
a warrant of commitment issued under section 76 of the Magistrates' Courts Act 1980;
of arresting a person for an arrestable offence.
Subject to subsection (6) below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.
Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace."
Part 111 deals with arrests. Section 24 makes provision for arrest without warrant for arrestable and other offences. Section 25(1) provides:
"Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because any of the general arrest conditions is satisfied.
This section shall not prejudice any power of arrest conferred apart from this section."
Part 1V deals with police detention. Section 34 provides:
A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act.
Subject to subsection (3) below, if at any time a custody officer -
becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and
is not aware of any other grounds on which the continued detention of that person could be justified under the provisions of this Part of this Act
it shall be the duty of the custody officer, subject to subsection (4) below, to order his immediate release from custody.
A person whose release is ordered under subsection (2) above shall be released without bail unless it appears to the custody officer -
that there is need for further investigation of any matter in connection with which he was detained at any time during the period of his detention; or
that proceedings may be taken against him in respect of any such matter, and, if it so appears, he shall be released on bail."
Section 37 provides:
Where
a person is arrested for an offence -
without a warrant; or
under a warrant not endorsed for bail.
...
the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.
If the custody officer determines that he does not have such evidence before him, the person arrested shall be released either on bail or without bail, unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.
Subject to section 41(7) below, if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested -
shall be charged; or
shall be released without charge, either on bail or without bail."
Section 47 provides:
Subject to subsection (2) below, a release on bail of a person under this Part of this Act shall be a release on bail granted in accordance with sections 3, 3A, 5 and 5A of the Bail Act 1976 as they apply to bail granted by a constable."
The Bail Act 1976.
So far as material, the Bail Act 1976 provides as follows:
"1(1) In this Act 'bail in criminal proceedings' means -
bail grantable in or in connection with proceedings for an offence to a person who is accused or convicted of the offence, or
bail grantable in connection with an offence to a person who is under arrest for the offence or for whose arrest for the offence a warrant (endorsed for bail) is being issued."
Does PACE apply to breaches of the peace?
The domestic law position without reference to the ECHR.
I shall begin by considering the issue without reference to the ECHR, not least because the Human Rights Act 1998 ("HRA")was not in force at the date of the events with which this case is concerned. The starting point is that it is clearly established as a matter of domestic law that breach of the peace is not a criminal offence (see R v County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 KB 670, 673 and 676. The issue in that case was whether an order of the magistrates binding a person over to be of good behaviour was a "conviction" from which there may be an appeal. In holding that it was not a conviction, Lord Goddard CJ said at 676:
"There is no pretence for saying, where a magistrate merely requires a person brought before him, not for having committed a criminal offence, but for having acted in a way that may cause a breach of the peace, to give a recognizance, that he has convicted him of anything. He is merely taking a precaution against the defendant committing an offence. It is true that the order in this case states that the defendant is a person who has acted in a manner whereby the peace is blemished, and not 'may be blemished,' but that does not seem to me to be in any sense a fatal objection. There is no such offence known to the law as blemishing the peace. The order does not therefore recite that the defendant has committed an offence, meaning an offence known to the law for which a person can be brought before a court and punished."
Mr de Mello submits that the law has developed since 1947, and that breach of the peace should now be regarded as a criminal offence even as a matter of domestic law without regard to the ECHR. He relies on a number of authorities, notably R v Bolton Justices, ex parte Graeme, (1986) 150 JP 190; Percy v DPP [1995] 1 WLR 1382; and Nicol and Selvanayagam v DPP (1996) JP 155. But in my judgment none of these authorities casts doubt on the correctness of what Lord Goddard CJ said in the Metropolitan Commissioner case. In ex parte Graeme the issue was whether there was jurisdiction to hear appeals in cases concerning breaches of the peace. That depended on whether an application relating to a complaint of breach of the peace under section 115 of the Magistrates' Courts Act 1980 was "a criminal cause or matter" within the meaning of section 18(1) of the Supreme Court Act 1981. The Court of Appeal held that it was a criminal cause or matter, and that accordingly there was jurisdiction. The reasons given by the court for reaching this conclusion included that (a) there is an express power to imprison if somebody is not prepared to enter into a recognizance to be of good behaviour, and (b) the criminal jurisdiction of the magistrates and their jurisdiction to bind over are all integral to their general duty to ensure maintenance of the peace (which is normally thought of as a criminal jurisdiction). But in my view it does not follow from this decision that a breach of the peace is a criminal offence known to English law.
Two of the hallmarks of a criminal offence are that it is something which is capable of being the subject of a charge, and that if the charge is proved it will result in a conviction. As Lord Bingham of Cornhill CJ put it in Customs & Excise Commissioners v City of London Magistrates' Court [2000] 1 WLR 2O20, 2O25:
"It is in my judgment the general understanding that criminal proceedings involve the formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant."
But a person arrested for breach of the peace is not charged, and even if the magistrates find that there has been a breach of the peace, no conviction results. An order binding a person over to be of good behaviour and keep the peace is not a conviction. The position is closely analogous to that which applies in relation to anti-social behaviour orders made under section 1 of the Crime and Disorder Act 1998. As Lord Steyn said in R (McCann) v Manchester Crown Court [2002] UKHL 39, [2002] 3 WLR 1313,1325D:
"It is unnecessary to establish criminal liability. The true purpose of the proceedings is preventative. This appears from the heading of Part 1. It is also clearly brought out by the requirement of section 1(1)(b): 'that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him ...' It follows that the making of an anti-social behaviour order is not a conviction or condemnation that a person is guilty of an offence. It results in no penalty whatever. It cannot be entered on a defendant's record as a conviction. It is also not a recordable offence for the purpose of taking fingerprints: see section 27 of the Police and Criminal Evidence Act 1984."
In Percy a complaint was laid against the defendant under section 115 of the 198O Act. One of the issues was: what was the relevant standard of proof? The justices found that the complaint had been proved to the civil standard and ordered that she should be bound over to keep the peace. She refused to consent to being bound over and the justices committed her to prison pursuant to section 115(3) of the 1980 Act. The Divisional Court allowed her appeal. Mr de Mello relies on what Collins J said, when giving the judgment of the court, at 1395G:
"There are pointers either way to whether the proceedings should be labelled criminal or civil. We do not need to decide which is appropriate, although we would incline to criminal largely for the reasons given in R v Bolton Justices, ex parte Graeme (1986) 150 JP 190. In our judgment, the consequences and circumstances of the proceedings require proof to a high standard. Accordingly, whatever the nature of the proceedings, we consider that the proper standard to be applied is the criminal standard, namely proof beyond reasonable doubt.
But in my judgment there is nothing in this passage which supports the proposition that breach of the peace is a criminal offence, or that a finding that there has been a breach of the peace is or results in a criminal conviction.
The same goes for the third of the trilogy of cases relied on by Mr De Mello. At page 157 in Nicol, Simon Brown LJ records with apparent approval what was common ground between the parties in the following terms:
"It is common ground that this bind over procedure is essentially a measure of preventative justice, to ensure the defendant's future good behaviour, albeit exercisable only after proof of past conduct which imperils the peace. To found the jurisdiction, therefore, the justices must be satisfied both that the defendant's past conduct gave rise to a situation whereby the peace was likely to be breached and also that, unless bound over, there is a real risk of his similarly conducting himself in the future. It is also common ground that, although no criminal conviction results from finding such a complaint proved, the criminal standard of proof applies to the procedure."
At first blush, therefore, it is difficult to see why the word "offence", where it appears in PACE, should be given an extended meaning so as to include a breach of the peace. In my view there is nothing in PACE itself which supports such an extended meaning. Indeed, there are contrary indications within PACE. An examination of section 17 shows that Parliament did not intend breach of the peace to be an offence for the purposes of PACE. Section 17 provides a code to regulate the way in which police may enter premises without a search warrant for the purpose of arresting persons for offences. This statutory code replaced all common law rules under which an officer could previously enter premises without a warrant (subsection (5)). But the draftsman expressly preserved the power of entry to deal with or prevent a breach of the peace (subsection (6)). In view of the wording of subsection (5), subsection (6) was needed to preserve that common law right. The fact that Parliament decided to preserve this right and to exclude it from the scope of section 17(1) to (4) shows clearly that at least some of the provisions of PACE were not intended to apply to breach of the peace cases.
Section 25(6) also provides some support for the proposition that "offence" within the meaning of PACE does not include a breach of the peace. This subsection was enacted to make it clear that express statutory provision for arrest in the circumstances described in section 25 was not to be taken as impliedly excluding the power to arrest in circumstances not described in PACE. The most obvious of these, unless "offence" in section 25(1) is given an unusual and extended meaning, exists where there has been a breach of the peace or one is threatened.
Mr de Mello relies on section 39(1) which imposes a duty on the custody officer at a police station to ensure that "all persons in police detention at that station are treated in accordance with this Act and any code of practice issued under it relating to the treatment of persons in police detention." He submits that the phrase "all persons in police detention" is wide enough to include persons detained for breach of the peace. But this provision must be read in its context. It is in Part 1V of PACE, which is dealing with the detention of persons arrested for an "offence" (section 34(1)). In my judgment, when read in this context, the phrase "all persons in police detention" in section 39(1) refers to all persons detained who have been arrested for an offence.
Section 47 provides for release on bail after arrest and that it shall be in accordance with the relevant provisions of the Bail Act 1976. As has been seen, the Bail Act provides for the grant of bail "in or in connection with proceedings for an offence to a person who is accused or convicted of the offence" or "in connection with an offence to a person who is under arrest for the offence or for whose arrest for the offence the warrant (endorsed for bail) is issued" (section 1(1)). There is no power given by the Bail Act to grant bail except in criminal proceedings as defined. There is therefore no power to grant bail to a person detained in other circumstances, including where he or she is detained for breach of the peace.
For all these reasons, I would hold that the word "offence" where it appears in PACE does not include breach of the peace.
But the question whether PACE applies to arrest and detention for breach of the peace is not free from authority. In Addison v Chief Constable of the West Midlands Police, 10th March 1995, unreported, this court was concerned with a case of alleged unlawful arrest and detention by the police for breach of the peace. The claim was dismissed at first instance and the plaintiff appealed. The leading judgment was given by Ward LJ, with whom Saville and McCowan LJJ agreed. The appeal in relation to the arrest was dismissed.
Ward LJ then turned to the question of detention. One of the submissions advanced on behalf of the appellant in that case was that what happened in the police station was in breach of PACE. Mr de Mello, who appeared for the appellant, submitted that the "offence" for which the appellant had been arrested and detained was the offence of breach of the peace. Ward LJ referred to Ex Parte Commissioner of Metropolitan Police, and at page 10 of the transcript said:
"In my judgment there was, in the circumstances of this anticipated breach of the peace, no offence being committed. Accordingly, in my judgment, the common law rules survives, and it is under the rules of the common law that this matter is to be dealt with."
It seems to me that this authority is binding on this court and is determinative of the point, subject to the effect if any of the ECHR. It is unfortunate that Addison has never been reported and is not even mentioned in Archbold, Criminal Pleadings Evidence and Practice. Mr de Mello submits that Addison is not binding, since the passage to which I have just referred was obiter dicta, and in any event his submissions were not fully considered by the court in that case. I am in no doubt that the passage was part of the decision and was not obiter dicta. It formed an essential part of the reasoning which led to the conclusion that the detention had been lawful. Ward LJ thought that the judgment of Lord Goddard CJ in ex parte Commissioner of Metropolitan Police was fatal to the argument that PACE applied to detention for a breach of the peace. I agree with his conclusion. In this judgment I have attempted to provide rather more elaborate reasons in support of it.
Finally, I should add that I do not consider that it was irrational of Parliament to have decided to exclude arrest and detention for breach of the peace from the scope of PACE. The common law provides persons arrested and detained for breach of the peace with a considerable measure of protection against arbitrary arrest and/or unreasonable detention. Thus, an arrest may only be lawfully made if a breach of the peace is being, or reasonably appears to be about to be, committed in the presence of the arresting person and it is reasonable for an arrest to be made: see Albert v Lavin [1982] AC 546,565B-C. When a person is arrested at common law for breach of the peace, the arrested person must be taken to a police station and then brought before a justice as soon as reasonably practicable: see John Lewis & Co v Tims [1952] AC 676, 691-2 (per Lord Porter).
No doubt there are arguments in favour of extending PACE to apply to arrest and detention for breach of the peace. One of these is that the bail conditions contained in section 34(5) do not apply. I should add that it has not been suggested before us that the police have the power at common law to release a detained person on bail. As against that, it can be said that, for the most part, persons detained for breach of the peace are either released unconditionally after a very short period of detention, or are promptly brought before the magistrates' court by the police exercising their common law powers.
If the police consider or ought reasonably to consider that there is no longer a real (as opposed to fanciful) danger that, if released, the detained person will commit or repeat his breach of the peace within a short time, and they decide, or ought reasonably to decide, that a bind over to keep the peace is unnecessary, then continued detention is unlawful at common law. Furthermore, if the police reasonably consider that such danger exists, detention will become unlawful at common law if they fail to take the detained person to the magistrates' court as soon as reasonably practicable. In this way a detained person is afforded a substantial degree of protection by the common law. There will sometimes, however, be cases where the power to grant bail pending an appearance before the magistrates would be valuable. I have in mind as an example the case where a person is arrested on a Friday night of a bank holiday weekend, and it is not possible to take him or her to court until the following Tuesday. But desirable though it might be that the police should be able to grant bail in such cases, I am in no doubt that the bail provisions of PACE do not apply where a person is detained for breach of the peace.
It may also be thought desirable that some of the provisions of Code C to PACE (Code of Practice for the detention, treatment and questioning of persons by police officers) should apply where a person is detained for breach of the peace. But for the reasons that I have already given, section 39(1) of PACE, when properly construed, does not apply to persons detained at a police station for breach of the peace. It must be assumed that Parliament weighed the competing considerations and concluded that it was unnecessary to extend PACE to cases of breach of the peace.
Before leaving this issue, I ought to refer to the Chief Constable of Cleveland Police v McGrogan [2002] 1 FLR 707. In that case the claimant was arrested on a Saturday by the police for breach of the peace. He was detained until he could be brought before a court on the following Monday. The claimant brought an action for wrongful arrest and false imprisonment. The trial judge decided that by Sunday the continued detention could no longer be justified, and awarded the claimant damages. The defendant's appeal was allowed by this court. In giving the leading judgment, with which Mantell LJ agreed, Wall J said this:
The test for detaining a person arrested for, or detained in connection with, an actual or threatened breach of the peace is that formulated by the judge in this case, and is of general application. The practice of the police in treating any person so detained as if PACE applied to the detention, as occurred in this case, is plainly correct. The need regularly to review the detention to ascertain if it remains justified, as was done in the instant case, is also plainly correct. The need to bring a lawfully detained person before the magistrates' court at the earliest opportunity is in accordance with Art 5(1)(c) of the Convention and is well established, as is once against demonstrated by this case."
I do not read the sentence "the practice of the police in treating any person so detained as if PACE applied to the detention ... is plainly correct" as meaning that the provisions of PACE apply in relation to a person who is detained for breach of the peace. Insofar as the provisions of PACE reflect the position at common law, then ex hypothesi, it is correct to say that the police must comply with those provisions. But that is because this is what is required by the common law. It is clear, however, that Wall J was not saying that, as a matter of statutory construction, the provisions of PACE apply to persons detained for breach of the peace. The phrase "as if PACE applied to the detention" shows that he was of the view that the provisions of PACE do not in fact apply. Moreover, it is not correct to say that there is a complete coincidence between PACE and the common law, since, for example, the police have no power at common law to release a detained person on bail. The sentence to which I have referred did not form an essential part of Wall J's reasoning. In my judgment, it should be understood as meaning no more than that it is good police practice to treat any person detained for breach of the peace as if those provisions of PACE are applicable which are appropriate to such a detention. And with that proposition I would wholeheartedly agree. I put it like that because there are certain powers given by PACE which the police cannot exercise in such cases. I have already mentioned the power to grant bail. Moreover, it is clear that some parts of PACE, for example a number of the sections of Code C, are simply not apt. By way of illustration, I would refer to section 10 of Code C which contains elaborate provision for the giving of cautions. On the other hand, a number of the provisions of PACE clearly are apt to a detention for breach of the peace, and good police practice would demand that they be complied with. I believe that this was what Wall J had in mind. Be that as it may, for the reasons that I have given, if the ECHR is disregarded, the provisions of PACE do not apply to the arrest and detention of persons for breach of the peace.
The effect of the ECHR
As we have already seen, the judge interpreted the word "offence" as including a breach of the peace because he thought that he was constrained to do so by Article 5 of the ECHR. So far as material, Article 5 provides:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."
In Steel the applicants complained under Article 5 that the concept of breach of the peace and the power to bind over were not sufficiently clearly defined for their detention to be "prescribed by law", and inter alia, that their detention did not fall within any of the categories under Article 5(1). They also made complaints under Article 5(3) which were not pursued. The court in its judgment said this:
It was not disputed before the court that breach of the peace amounted to a 'criminal offence' for the purposes of the Convention, and that the applicants' arrests and detention before being brought to the magistrates' court fell within the scope of subparagraph (c) of Article 5(1).
Further or in the alternative, the Government submitted that these initial periods of detention had been permissible under Article 5(1)(b), since the obligation to keep the peace was specific and prescribed by law.
The court recalls that each applicant was arrested for acting in a manner which allegedly caused or was likely to cause a breach of the peace and detained until he or she could be brought before a magistrates' court.
Breach of the peace is not classed as a criminal offence under English law. However, the court observes that the duty to keep the peace is in the nature of a public duty; the police have powers to arrest any person who has breached the peace or whom they reasonably fear will breach the peace; and the magistrates may commit to prison any person who refuses to be bound over not to breach the peace where there is evidence beyond reasonable doubt that his or her conduct caused or was likely to cause a breach of the peace and that he or she would otherwise cause a breach of the peace in the future.
Bearing in mind the nature of the proceedings in question and the penalty at stake, the court considers that breach of the peace must be regarded as an 'offence' within the meaning of Article 5(1)(c).
......
In this connection, the court observes that the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace.
Accordingly, the court considers that the relevant legal rules provided sufficient guidance and were formulated with the degree of precision required by the Convention.
When considering whether the arrest and detention of each applicant was carried out in accordance with English law, the court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since failure to comply with domestic law entails a breach of Article 5(1), the court can and should exercise a certain power of review in this matter."
Me de Mello concedes rightly that the court is not required by section 3 of the HRA to interpret and give effect to PACE in a way which is compatible with the ECHR, because the acts with which this case is concerned pre-date the coming into force of the HRA. Nevertheless, he submits that even in a pre-HRA case, the court should have regard to Steel when interpreting PACE. His main point is that even before the HRA came into force, the courts were, so far as possible, developing the common law conformably with the ECHR.
I am in no doubt that Steel does not require a different interpretation of PACE from the one at which I have arrived independently of any consideration of the ECHR. First, it is clearly important that the HRA has no application to this case. It is true that the court sought to interpret the common law compatibly with the ECHR even before the HRA came into force. But I see no reason to adopt a strained interpretation of a statutory provision which could only be justified (if it could be justified at all) if the HRA were already in force.
Secondly and in any event, Steel does not require such an interpretation. In Steel the European Court of Human Rights decided that the common law rules relating to breach of the peace complied with Article 5(1)(c). Although the court did not have to deal with the complaint under Article 5(3) in Steel, it is clear in my view that the common law requirement that a person detained for breach of the peace must either be released unconditionally or taken to a magistrates' court as soon as reasonably practicable reflects the provisions of Article 5(3) quite closely. The court knew in Steel that breach of the peace is not classified as a criminal offence under English law (para 48 of the judgment). In these circumstances, it is difficult to see why it is necessary to construe the word "offence" where it appears in PACE as applying to a breach of the peace. It is unnecessary so to construe the statute in order to achieve compliance with Article 5 of the ECHR since the law relating to breach of the peace is compliant with Article 5 of the Convention. It was not suggested by Mr de Mello that such a construction was necessary to achieve compatibility with any other article of the ECHR.
It is impermissible to reason that since (a) breach of the peace must be regarded as an "offence" within the meaning of Article 5(1)(c), therefore (b) it must also be an "offence" within the meaning of PACE. In McCann, Lord Steyn first considered how to classify anti-social behaviour order proceedings according to domestic law, and held that they were civil proceedings. He then turned to the question "whether despite its domestic classification, an anti-social behaviour order nevertheless has a criminal character in accordance with the autonomous concept of Article 6" (p 13 26). In other words, the two concepts were distinct.
In my judgment Judge McKenna was wrong to rely on Steel to construe "offence" in PACE as he did, because (a) the HRA did not apply to the facts of this case, and (b) in any event, such a construction is not necessary to bring about compliance with Article 5 of the ECHR.
Outcome of this appeal.
For the reasons that I have sought to explain, therefore, I disagree with the reasoning by which the judge arrived at his conclusion that the claimant should have been released at 1800 hours on the Sunday afternoon, but he was entitled to reach the same conclusion on the simple application of common law principles. On a fair reading of his judgment, I think that he was saying that by 1800 hours the police ought reasonably to have considered that there was no longer a real danger that, if released, the claimant would commit a further breach of the peace, and ought reasonably to have decided that a bind over to keep the peace was unnecessary. The appellant has not been given permission to challenge this finding. It follows that in my judgment this appeal should be dismissed, but that on the question of law on which permission to appeal was given by the judge, the appellant is entitled to a declaration to reflect the terms of this judgment.
LORD JUSTICE MUMMERY: I agree. In his judgment Dyson LJ has dealt fully with all the relevant points arising on this appeal. There is nothing that I can usefully add to the judgment.
ORDER: Appeal dismissed; no order as to costs; costs order below to remain undisturbed; public funding assessment of the respondent's costs; application for permission to appeal to House of Lords refused.