Foulkes v Chief Constable of the Merseyside Police

The common-law power to arrest to prevent an apprehended breach of the peace is exceptional where the person arrested is acting lawfully. A constable must have reasonable grounds for believing that a breach of the peace is imminent, involving a sufficiently real and present threat. The possibility that lawful conduct may provoke violence by others can justify arrest only in the clearest circumstances. Domestic disagreement, refusal to leave, nervousness and a risk that an argument may develop do not, without more, satisfy that threshold. The power must not be used as a substitute for resolving civil or family rights, including occupation of a matrimonial home. An honest belief is insufficient unless supported by reasonable grounds.

Mr Foulkes, a joint owner of the matrimonial home, was excluded from it after a domestic dispute involving his wife and adult children. When he called the police, he was locked out and repeatedly refused requests to leave the area while the officers tried to calm the situation. He was arrested to prevent an apprehended breach of the peace and detained overnight.

The Liverpool County Court, before Assistant Recorder Elleray, held that the arrest and subsequent detention were lawful and dismissed his claims for false imprisonment and damages. The appeal concerned whether the constable had reasonable grounds to apprehend an imminent breach of the peace where Mr Foulkes was not acting unlawfully, and whether the detention was unreasonable.

1. Appeal allowed. The arrest was unlawful. The constable honestly believed that arrest was necessary, but honesty did not establish reasonable grounds in law.
2. The common-law power to arrest for an apprehended breach of the peace is exceptional where the individual’s conduct is apparently lawful. It should be exercised only in the clearest circumstances, where the constable has reasonable grounds to believe that a breach is imminent. The relevant threat must be sufficiently real and present to justify depriving a person of liberty. This approach was consistent with the emphasis on reasonable apprehension and imminence in R v Howell (Errol) [1982] QB 416 and Albert v Lavin [1982] AC 546.
3. The possibility that lawful conduct may provoke violence or a breach of the peace by others can, exceptionally, justify preventive arrest. The authorities do not require the constable to determine which party is morally or legally at fault before intervening. But the factors relied upon here—family arguments, the changed locks, nervousness, refusal to leave, and concern that re-entry might lead to resistance—did not establish the necessary imminence or seriousness.
4. Lord Justice Thorpe’s concurring family-law observations treated the matrimonial-home rights as legally significant. Under Matrimonial Homes Act 1983, s 9, a spouse’s occupation rights could be restricted through an application to the court. The wife’s lock-out was wrongful, and the police should not have treated it as displacing the husband’s occupation rights. He considered that the breach-of-peace regime should affect occupation rights in domestic disputes only in the rarest cases.
5. It was unnecessary to decide the detention issue. Lord Justice Beldam nevertheless indicated that the burden of justifying detention rests entirely on those who deprived the claimant of liberty, although there must be evidence capable of supporting a finding that the detention was unduly long, applying John Lewis & Co Ltd v Tims [1952] AC 676.

Lord Justice Schiemann agreed with both judgments, and Lord Justice Thorpe agreed in full with Lord Justice Beldam. The appeal was allowed unanimously, with costs in the Court of Appeal and below; damages were to be assessed or agreed.

• Liverpool County Court: Assistant Recorder Elleray held that the arrest and subsequent detention were lawful and entered judgment for the Chief Constable.
• Court of Appeal (Civil Division): The appeal was allowed unanimously. The arrest was held unlawful. Costs were awarded in both courts and damages were to be assessed or agreed.