McQuade v Chief Constable of the Humberside Police

At common law, a breach of the peace may be committed or threatened on private premises. A public disturbance, or involvement of persons outside the premises, is not a necessary legal ingredient. The power of arrest concerns preventing violence or damage wherever it occurs, rather than maintaining public order alone.

Public involvement may be relevant evidence when assessing whether a breach is likely, but it does not define the concept. Arrest without warrant may follow an actual breach, a reasonably apprehended imminent breach, or a reasonably apprehended renewal of a prior breach. Domestic disputes will rarely justify arrest, and special care is required. Sections 4 and 5 of the Public Order Act 1986 do not restrict the common-law power.

The respondent claimed damages for wrongful arrest and personal injury after being arrested by a police officer at his home during an argument with his wife. The officer purported to exercise the common-law power of arrest for breach of the peace.

On 22 March 2000, His Honour Judge Bowers gave judgment for the respondent in the Kingston-upon-Hull County Court. He held the arrest unlawful because a breach of the peace required a public dimension. The Chief Constable appealed. The respondent sought permission to argue by respondent’s notice that the officer also lacked reasonable and probable cause. The central issue was whether a public element was legally required where the arrest occurred on private premises.

The appeal was allowed and a retrial was directed. Laws LJ gave the first judgment. Nourse LJ agreed with it, and Peter Gibson LJ agreed with the reasons and the result. The decision was therefore unanimous. The respondent’s late application to introduce a respondent’s notice was refused.

1. In a civil wrongful-arrest claim tried by a jury, the judge determines whether reasonable and probable cause existed, while the jury assists by resolving conflicts in the evidence about the relevant events. Applying the principle described in Dallison v Caffrey (1965) 1 QB 348, the Court of Appeal was not in a position to determine that factual issue because the judge had not made a sufficiently clear finding after distinct submissions on it.
2. The proposed public-element requirement confused keeping the Queen’s peace with maintaining public order. Keeping the peace concerns preventing violence and damage wherever they occur, whether in public or private. The categories stated in R v Howell [1982] 1 QB 416 include an actual breach committed in the arrestor’s presence, a reasonably apprehended imminent breach, and a reasonably apprehended renewal of a prior breach.
3. McConnell v Chief Constable of Greater Manchester Police [1990] 1 WLR 364 was binding authority. Its reasoning rejected any legal restriction requiring disturbance of persons outside private premises. The possible presence or involvement of members of the public could be relevant as evidence, but it was not a legal ingredient. The judge below had therefore misunderstood McConnell.
4. The broad power required caution. Domestic disputes would rarely amount to a breach of the peace, and only exceptional circumstances might justify arrest. The Court endorsed the warning in Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705 that intervention in domestic disputes should be treated as an exceptional use of the power.
5. Sections 4 and 5 of the Public Order Act 1986 address defined statutory public-order offences. Their exclusion of conduct wholly within a dwelling did not limit the separate common-law concept of breach of the peace or the associated power of arrest.

Appeal allowed. Retrial directed. No order as to costs.

1. Court of Appeal (Civil Division) — In [2001] EWCA Civ 1330, allowed the Chief Constable’s appeal and directed a retrial.
2. Kingston-upon-Hull County Court — On 22 March 2000, His Honour Judge Bowers gave judgment for the claimant, with damages to be assessed, holding that the arrest was unlawful because a public dimension was required for a breach of the peace.