Breach of the peace, or disturbing the peace, is a legal term used in

constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...

in English-speaking countries and in a

public order In criminology, public-order crime is defined by Siegel (2004) as "crime which involves acts that interfere with the operations of society and the ability of people to function efficiently", i.e., it is behaviour that has been labelled criminal ...

sense in the several jurisdictions of the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...

. It is a form of

disorderly conduct Disorderly conduct is a crime in most jurisdictions in the United States, the People's Republic of China, and Taiwan. Typically, "disorderly conduct" makes it a crime to be drunk in public, to " disturb the peace", or to loiter in certain are ...

Public order

England, Wales and Northern Ireland

In England and Wales, theoretically all criminal offences cognizable by English law involve "a breach of the King's peace", and all indictments formerly concluded "against the peace of our Lady the Queen, her crown and dignity" before the passage of the

Indictments Act 1915 The Indictments Act 1915 (5 & 6 Geo 5. c.90) was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centu ...

and the Rules that formed that Act's first schedule. The conclusion has also found its way into constitutional law in many United States state constitutions, which mandate that indictments within the state end in a similar manner to the above, usually omitting the "crown" part or substituting "government". For example,

New Jersey New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delawa ...

's is "against the peace of this State, the government and dignity of the same". Historically that concluding phrase, now legally superfluous, represents the last trace of the process by which the royal courts assume jurisdiction over all offences, and gradually eroded the jurisdiction of the

sheriff A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...

and of lords of manor and franchises, making crime a matter of national concern as distinguished from civil wrongs or infractions of the rights of local magnates. The Peace of the King was sworn on his accession or full recognition, and the jurisdiction of his courts to punish all violations of that peace was gradually asserted. The completion of this process is marked by the institution of the office of

Justice of the Peace A justice of the peace (JP) is a judicial officer of a lower or '' puisne'' court, elected or appointed by means of a commission ( letters patent) to keep the peace. In past centuries the term commissioner of the peace was often used with the s ...

. In England, Wales and Northern Ireland, breach of the peace is descended from the

Justices of the Peace Act 1361 The Justices of the Peace Act 1361 (34 Edw 3 c 1) is an Act of the Parliament of England. The Act, although amended, remains enforceable in England and Wales in 2022. Background Maintaining the peace had long been a concern of society and par ...

, which refers to riotous and barratous behaviour that disturbs the peace of the King. More modern authority defines a breach of the peace as "when a person reasonably believes harm will be caused, or is likely to be caused, to a person or in his presence to his property, or a person is in fear of being harmed through an assault, affray, riot, unlawful assembly, or some other form of disturbance". The breach of the peace power of arrest is provided by the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

and therefore an 'any person' power of arrest and entry both within the same definition. Section 17(5) of the

Police and Criminal Evidence Act 1984 The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise ...

(PACE) abolished all powers of a Constable to enter under the common law with the specific exception (subsection 6) when dealing with or preventing a common law breach of the peace. This "offence" definition and power of arrest are contained under the

definition of "breach of the peace". Breach of the peace powers are unusual in the fact they originate from the laws

Alfred the Great Alfred the Great (alt. Ælfred 848/849 – 26 October 899) was King of the West Saxons from 871 to 886, and King of the Anglo-Saxons from 886 until his death in 899. He was the youngest son of King Æthelwulf and his first wife Osburh, who bo ...

consolidated into the

approximately 1,000 years before the modern constable was thought up. The first legislative reference to the common law breach of the peace was under the Justice of the Peace Act 1361. In England and Wales, breach of the peace is a

civil proceeding Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit * Civil affairs *Civil and political rights *Civil disobedience * Civil engineering *Civil (journalism), a platform for independent journalism *Civilian, someone not a memb ...

(rather than a criminal offence), although the case must be proved to the criminal standard of proof, '

beyond reasonable doubt Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, bec ...

', rather than the civil standard of proof, ' on the balance of probabilities'. Sometimes the

Crown Prosecution Service The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions. The main responsibilities of the CPS are to provide legal advi ...

conduct the case on behalf of the police, but the police service is liable for any costs awarded in favour or against the prosecutor. Breach of the peace is not an offence, in the sense that it is not punishable either by a fine or imprisonment either at statute or

and nor do proceedings for breach of the peace give rise to any conviction. In England and Wales,

constable A constable is a person holding a particular office, most commonly in criminal law enforcement. The office of constable can vary significantly in different jurisdictions. A constable is commonly the rank of an officer within the police. Other peop ...

s (or other persons) are permitted to arrest a person to "prevent a further breach of the peace" which allows for the police or the public to arrest a person before a breach of the peace has occurred. This is permitted when it is reasonable to believe should the person remain, that they would continue with their course of conduct and that a breach of the peace would occur. The only immediate sanction that can be imposed by a court for breach of the peace is to

bind over In the law of England and Wales and some other common law jurisdictions, binding over is an exercise of certain powers by the criminal courts used to deal with low-level public order issues. Both magistrates' courts and the Crown Court may issue b ...

the offender to keep the peace: that is, justices of the peace can require a person to enter into a recognizance to keep the peace. Any punishment (in the sense of a loss of freedom or permanent financial penalty) takes the form of loss of the surety if the defendant fails to keep the peace or be of good behaviour during the period for which he is bound over. The binding over itself does not amount to a conviction (but any following behaviour causing loss of the surety might well result in conviction for an associated offence). A failure to enter into a recognizance may of itself lead to a person being committed to custody under s.115(3) Magistrates' Courts Act 1980. Nowadays a person causing a public disturbance may be arrested for, and/or charged with, causing

harassment, alarm or distress Harassment, alarm or distress is an element of a statutory offence in England and Wales, arising from an expression used in sections 4A and 5 of the Public Order Act 1986, which created the offence. The Act was amended in 1994. The offence The ...

contrary to the

Public Order Act 1986 The Public Order Act 1986 (c 64) is an Act of the Parliament of the United Kingdom. It creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936. It implements recommendations

Scotland

There are major differences between

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...

and

Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...

with respect to dealing with breach of the peace; unlike England and Wales where criminal penalties apply to the behaviour leading to or liable to cause a breach of the peace, it is a specific criminal offence in Scotland which is prosecuted daily in the sheriff courts and due to its common law definition it can be applied to a number of scenarios. The maximum punishment if a case is remitted to the High Court remains imprisonment for life although such severe punishment is now rarely applied, usually being associated with breaches of licence during an existing life sentence. Breach of the peace consists of "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". A constable may arrest any person, without warrant, who commits a breach of the peace. A member of the public may not arrest a person for behaviour which amounts to no more than a breach of the peace (i.e. an arrest is not always for the offence for which someone is eventually prosecuted but can be for a more serious crime that appears to be occurring). Breach of the peace can include, but is not limited to, any riotous behaviours (which includes "rowdiness" or "brawling") and any disorderly behaviour. This behaviour need not be noisy but still of a nature that would cause concern to other people. Examples include persistently following someone, delivering threatening letters and "

streaking Streaking is the act of running, often naked, through a public area for publicity, as a prank, a dare, or a form of protest. Streaking is often associated with sporting events, but can occur in more secluded areas. Streakers are often pursued b ...

" or "

mooning Mooning is the act of displaying one's bare buttocks by removing clothing, e.g., by lowering the backside of one's trousers and underpants, usually bending over, and also potentially exposing the genitals. Mooning is used in the English-speaki ...

". One of the leading cases in Scots law is that of ''Smith v Donnelly'', a case concerning a

Faslane His Majesty's Naval Base, Clyde (HMNB Clyde; also HMS ''Neptune''), primarily sited at Faslane on the Gare Loch, is one of three operating bases in the United Kingdom for the Royal Navy (the others being HMNB Devonport and HMNB Portsmouth). ...

protester.

United States

In the United States, prosecutions for breach of the peace are subject to constitutional constraints. In '' Terminiello v. City of Chicago'' (1949), the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

held that an ordinance of the City of Chicago that banned speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the

First Amendment to the United States Constitution The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the ...

. Justice Douglas stated: "Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea." In ''

Cox v. Louisiana ''Cox v. Louisiana'', 379 U.S. 536 (1965), is a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that a state government cannot employ " breach of the peace" statutes against protesters engaging in p ...

'' (1965), the Supreme Court held that a

Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is bord ...

statute criminalizing breaches of the peace was unconstitutionally vague and overbroad because it would allow persons to be prosecuted for expressing unpopular views. The statute read in part:

Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby ... crowds or congregates with others ... in or upon ... a public street or public highway, or upon a public sidewalk, or any other public place or building ... and who fails or refuses to disperse and move on ... when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person ... shall be guilty of disturbing the peace.

On the state level, at least one court has reasoned that the essence of a breach of the peace was the potential to cause a disruption in tranquility or to promote the threat of violence, stating that a breach of the peace was that which "disturbs or threatens to disturb the tranquility enjoyed by the citizens".Head v. State, 131 Tex. Crim. 96, 96 S.W.2d 981, 982 (1936)).

References

External links