Keeping the Peace and Preventive Justice: A New Test for Breach of the Peace?

Abstract

The increased academic interest in the "preventive turn" in the criminal law over recent years1 has focused attention on the concept of "preventive policing".2This has coincided with a revival of interest in preventive measures to preserve public order, such as the contentious police strategies of "kettling" (or more correctly "containing") protesters and "pre-emptive arrests".The lawfulness of such strategies has been considered in a number of legal challenges, the most recent of which was R. (on the application of Hicks) v Commissioner of Police of the Metropolis (hereafter "Hicks"),3 in which the Supreme Court held that "pre-emptive" arrests before the wedding of Prince William and Kate Middleton in 2011 were not in breach of art.5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter "the European Convention on Human Rights").As these challenges have been largely unsuccessful, the police have continued, despite considerable criticism,4 to utilise these strategies.For example, in recent times protestors ranging from the far-right5 to anti-fracking6 have complained about being "kettled" and it is evident that such tactics remain an essential part of the "modern" core principles of policing public order.7 However, the origins of these measures are far from modern.They may be found in the law on breach of the peace, which derives from the very early days of the common law but remains at the heart of public order policing in England and Wales.8The meaning of a breach of the peace is considered later in this article but, in brief, its essence may be described as "violence or the threat of violence to persons or property".9It has been long associated with "preventive policing" as part of "preventive justice", a doctrine that may be traced back to Blackstone.10However, in its modern conception, it consists of prospective measures and practices aimed at preventing crime.11The increased use of breach of the peace powers in the policing of protests12 may be attributable to the "preventive turn" in contemporary criminal justice detected by some academics.13However, it may also result, more prosaically, from the increased reluctance on the part of some protestors to co-operate with the police.14