Bibby v Chief Constable Of Essex Police

The common-law power to arrest to prevent an apprehended breach of the peace is exceptional where the person’s conduct is lawful but provocative. Arrest is justified only in the clearest circumstances, where there is a sufficiently real and present threat, the threat comes from the person arrested, the conduct clearly interferes with another’s rights, and the anticipated violence would not be wholly unreasonable. A constable’s reasonable belief that violence may occur is insufficient by itself. The court must identify the source of the threat and decide whether the arresting person’s conduct satisfies the exceptional conditions. The administrative-law Wednesbury test is inapplicable to the question whether the arrest was lawful. Handcuffing also requires separate justification.

A certified county-court bailiff attended business premises to enforce a magistrates’ liability order by levying distress on goods subject to a walking-possession agreement. The debtors resisted, threatened to call friends to prevent removal, and both sides called the police. The arresting constable believed that a breach of the peace was imminent, asked the bailiff to leave, and arrested him when he refused. The bailiff was handcuffed, taken to the police station and released without charge.

The Assistant Recorder dismissed the bailiff’s claims for assault and wrongful imprisonment, applying a reasonableness-based approach and considering whether the arrest decision was Wednesbury unreasonable. The appeal concerned whether the arrest and use of handcuffs were justified where the bailiff was acting lawfully but the situation might lead to violence.

1. Appeal allowed. The arrest and the use of handcuffs were unjustified. The order was made in the terms of an agreed minute.
2. The common-law power to arrest for an apprehended breach of the peace, where no actual breach has occurred and the anticipated breach arises from apparently lawful conduct, is exceptional. The six conditions identified from Foulkes, Redmond-Bate and Nicol accurately stated the applicable law: there must be the clearest circumstances and a sufficiently real and present threat; the threat must come from the person arrested; the conduct must clearly interfere with another’s rights; the natural consequence must be violence by a third party; that violence must not be wholly unreasonable; and the arrested person’s conduct must be unreasonable.
3. The bailiff was entitled to levy distress and to remain until the debt was paid or the goods were removed. His conduct was lawful and did not interfere with the debtors’ rights. The debtors’ threatened resistance was the source of any prospective violence, and a violent reaction to the bailiff’s conduct would have been wholly unreasonable. The constable therefore should not have arrested the bailiff merely because he refused to leave.
4. A constable’s reasonable belief that a breach of the peace is imminent does not itself justify arrest. The court must ask where the threat comes from and whether the exceptional conditions for arrest are met. Even if conduct is lawful, arrest may exceptionally be justified where it is so outrageous that it is likely to provoke a not wholly unreasonable violent reaction; the conduct here fell far short of that standard.
5. The Assistant Recorder erred in applying the Wednesbury test. The issue was not whether an administrative discretion had been exercised unreasonably, but whether the constable was legally justified in arresting the claimant. The use of handcuffs was separately unreasonable and unjustified in the circumstances.

• Court of Appeal (Civil Division): allowed the appeal from the Assistant Recorder, holding that the arrest and handcuffing were unjustified. The court made an order in the terms of an agreed minute.