Case No: B2/2001/0217
Neutral Citation Number: [2002] EWCA Civ 86
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL  DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE BOWERS
AT MIDDLESBOROUGH COUNTY COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 12 February 2002
B e f o r e :

LORD JUSTICE MANTELL

and
MR JUSTICE WALL

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	CHIEF CONSTABLE OF CLEVELAND POLICE	Appellant	
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	MARK  ANTHONY McGROGAN	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr J Guthrie QC & Mr S Davenport  instructed by  Cleveland Police Legal Services for the Appellant/Defendant
Mr H Tomlinson (instructed by  Watson Woodhouse for the Respondent/Claimant

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Judgment
As Approved by the Court

Crown Copyright ©

Mr. Justice Wall:  

1.	The Chief Constable of the Cleveland Constabulary (the appellant) appeals, with the permission of the judge, from an order made by His Honour Judge Bowers sitting at the Middlesbrough County Court on 10 January 2001 in which he gave judgment for Mark Anthony McGrogan  (the claimant)  in the sum of £1,500. He also ordered the appellant to pay 70% of the claimant’s  costs.

2.	The proceedings giving rise to this appeal are an action brought by the claimant against the appellant for wrongful arrest and false imprisonment, in which he sought damages, including aggravated and exemplary damages limited to £50,000.  For reasons which I shall analyse, the judge “with great reluctance” came to the conclusion that part of the claimant’s detention in a police station (a period from shortly before 13.50 on 5 April 1998 until the claimant’s appearance before the justices on the morning of 6 April 1998) was unjustified.  In giving permission to appeal, the judge stated that the case raised issues of law and practice of general importance regarding the continued detention by the police of a person detained for causing/being likely to cause a breach of the peace.  We agreed with that assessment, and accordingly, having heard argument on 11 December 2001 we reserved judgment.

The Facts

3.	HH Judge Bowers’ judgment is written in a style which is commendably clear and concise, and I can do no better than to take the  facts of the case from it:

2.1	P.C. Greenheld attended the Eastbourne Road area of Middlesbrough shortly after 2pm on Saturday 4 April in response to a complaint by a member of the public that a man (whom the claimant accepts matched his description) was attacking a woman and dragging her by the hair......
He saw the claimant and Miss M (the victim).  The latter complained to him that the claimant had pulled her by the hair, dragged her to the floor and kicked her several times in the head.  She appeared pale, dishevelled and in obvious pain and distress.  He thought that she may have had some redness around the face.
2.2	He arrested the claimant on suspicion of assault occasioning actual bodily harm and when cautioned the claimant made no reply.  He was concerned for the victim of the assault and immediately transported her to hospital and returned to the police station to which other officers had brought the claimant. 
2.3	The claimant in his evidence before me denied assaulting Miss M, stating that they were only scuffling.  He admitted pushing her away and that she had fallen to the ground but denied punching or kicking her.  He accepted that she could have had cuts and bruises from her fall.  He said that he was the victim of her assault and that it was he and not she who was injured.
2.4	It is accepted that the only issue for me to decide on this part of the case is whether P.C. Greenheld had reasonable cause to suspect that Miss M had suffered some actual bodily harm.  common assault is not an arrestable offence whereas assault occasioning actual bodily harm is an arrestable offence.  Actual bodily harm is any hurt or injury calculated to interfere with the health and so called comfort of the victim and must be more than merely trivial or transient.  Mere emotions, fear distress or panic, will not suffice.
2.5	I am quite satisfied that there were reasonable grounds to suspect that Miss M had sustained some bodily injury having regard to the reported nature and severity of the attack (which involved kicking) and from the appearance of the victim.  P.C. Greenheld’s action in transporting (her) to hospital for a medical examination are entirely consistent with his suspicions that some injury may have been occasioned.  In fact, his suspicions were justified because P.C. Smithson, who saw the victim later described her as having a “lump the size of an egg within the hairline”.  This would be sufficient bodily harm for the purposes of the offence in law, although under guidelines issued by the Crown  
Prosecution Service they would not proceed with an offence under s 47 of  the Offences Against the Person Act where the injuries were as minor as that.
2.6	P.C. Stephenson transported the claimant to the Police Station arriving at 14.40.  Whilst in the holding room the claimant became violent banging his head against the wall and then became extremely violent and had to be restrained by officers and put into a cell to calm down.  His detention was actually authorised on the custody record at 14.56 and an entry at 15.00 describes the claimant’s bizarre and violent behaviour.  He was not sufficiently calm to be informed of his rights until 16.10.
2.7	The claimant could remember none of this and denied that he was violent at all.  He could not explain the entries on the custody record.  His only explanation was that he was frustrated and cross with himself for getting arrested but was not violent.  He denied that he was taking drugs at the time.
2.8	I reject the claimant’s evidence of events at the Police Station and	 much prefer the evidence of the officers (P.C.Stevenson and Sgt.Webster) supported as it is by the contemporaneous record.  In addition, I found the claimant’s evidence generally to be unconvincing and unreliable.
2.9	I find that the claimant was lawfully arrested and detained on suspicion of assault occasioning actual bodily harm and his continued detention was authorised on a lawful basis to enable evidence to be obtained from the victim and others and in order to question the claimant in due course.
4.	The judge describes this part of his judgment as “the arrest and first detention”.  No criticism has been made before in this court either of the conduct of the police in arresting and detaining the claimant during this period or of the judge’s findings in relation to it.  

5.	The judge then moved on to what he calls “the second period of detention” with which he deals as follows:
3.1	P.C.Smithson was sent to take a statement from Miss M.  He had previous experience of the claimant and Miss M, and had been involved over domestic arguments between (them) during the previous six to eight months.  He knew that she was addicted to heroin and believed that the claimant was also so addicted.  Apart from his involvement, he was aware of regular incidents between them when other officers had attended.  
3.2	He observed Miss M’s fear and distress and considered that she was emotionally “stressed out” and terrified that the claimant would return to her home.  She, in fact, packed all the claimant’s belongings and gave them to him so that the claimant would have no reason to return.  He considered that she was so afraid that some action had to be taken to prevent a recurrence of the violence.  Even though he was given the claimant’s clothes and there was no need for him to return he considered that he might well return and a further breach of the peace would ensue. 
3.3	He took a statement from Miss M in which she stated that she did not wish to make a complaint of assault against the claimant.  P.C.Smithson considered that this was out of  fear and a wish to avoid any further contact with the claimant - although the statement does not state as such.
3.4	I accept P.C.Smithson’s statement and evidence.  He, in my judgment, knew that the CPS would not regard the minor injury as sufficient to charge assault occasioning actual bodily harm and was correct in his assessment that if allowed his liberty it was highly probable that the claimant would return to Miss M’s home and a breach of the peace would occur.  He was genuinely and rightly concerned for the safety of Miss M if the claimant was released that evening.
3.5	Upon returning to the Police Station with the claimant’s clothes, he and Sgt.Brock agreed that an information would be laid against the claimant for causing a breach of the peace and to detain him until he could be brought before the first available court which would be on Monday morning.  They did this on the ground that, if released, having already caused a breach of the peace he would be likely to return to confront Miss M and continue the breach.  I am quite satisfied that they did not act under a mistaken apprehension of the law and were in fact purporting to exercise the common law power to detain a person where it is believed that, having committed a breach of the peace, it is reasonably believed that a renewal is threatened.
3.6	I accept Sgt.Brock’s explanation of the entry on the custody record at 19.45 on 4 April.  The word “charged” is not strictly correct but is the word used in the computer handling system.  I am quite satisfied by his explanation of “no power to bail for this offence” that he was accurately expressing the legal position at common law (namely that he could not bail the claimant on conditions such as that he did not approach Miss M) and that he well knew that he could only detain the claimant under the common law power to prevent a further breach of the peace.  The record states that if freed the claimant would approach a prosecution (sic) witness and refers to evidence of ongoing animosity between the claimant and his girlfriend.
3.7	The fears of the Sergeant were reinforced by the claimant saying that he needed heroin (a fact which the claimant denied) and further by the claimant’s action of banging his head against the cell wall and shouting when returned to his cell at 19.47 and of his suicide threat at 20.00.
6.	The judge at this point breaks from the narrative in order to consider the law.  I will, in due course, return to examine this part of his judgment, but in the meantime will continue with the narrative. We have reached 19.45 on the evening of Saturday 4 April 1998, and the decision by P.C.Smithson and Sgt. Brock to continue to detain the claimant.  The judge deals with this detention in these words:

5.1	1945 on 4th April 1998

There was in my judgment proper consideration of the risks by P.C.Smithson and Sgt.Brock.  I consider that they were entirely justified in concluding that if released the claimant would probably return and confront Miss M and a further breach of the peace would result.
It is clear that the claimant was still in a disturbed frame of mind and seeking drugs.  He was likely to be further inflamed when he was handed his belongings upon his release.  Miss M was in a fraught and frightened condition and there was every prospect that he would immediately attempt to contact her resulting in further violence and a breach of the peace.  In my judgment detaining the claimant overnight was entirely justified.
7.	The judge then moves to 05.38 on 5 April 1998, when the claimant’s detention in the Police Station was further reviewed.  He deals with the matter in this way:

5.2	0538 on 5th April 1998

Sgt.Cook gave evidence that he conducted this review of detention and considered that nothing had changed and that the situation was the same as it had been at 19.45 the previous evening.  The claimant was asleep and was not woken.  The record states that he authorised further detention to secure attendance at the next available court.  He explained in evidence that this note is not really accurate, and that he was aware of the powers he was exercising.  He appreciated that he could not bail on conditions, and could only release unconditionally.
In my judgment at that time of the morning, in the absence of a car or public transport, there was every reason to expect that the claimant if released would return to the home of Miss M and that a breach of the peace would occur.  In the custody record, the claimant’s address is in Grangetown (which is some miles from the police station) whereas the home of Miss M is within walking distance.  I am satisfied that the continued detention at that time was justified and lawful.         
8.	Once again, in relation to this second period of detention, there is no criticism  of the conduct of the police or of the judge’s findings.  For the claimant, Mr Hugh Tomlinson realistically recognised that he was not in a position to attack any of the judge’s findings of fact, and there is no cross-appeal in relation to either the first or second periods of detention.

9.	We thus move to the critical part of the case, namely the review which took place at 13.50 on Sunday 5 April 1998, and the decision of the police to continue the claimant’s detention thereafter.  The judge deals with the matter in this way: 

5.3	1350 on 5th  April 1998 and thereafter

Further detention reviews were carried out by Sgt.Brock at 13.50 on Sunday and by Sgt.Cook at 22.30 that evening.  Both refer in their note in the custody record to there being no power to bail (on conditions) and the remand being necessary to bring the claimant before the court on Monday 6 April.
Neither could point to any violence or difficulty with the claimant at that stage and both stated that they could not see any change in the circumstances.  Sgt.Brock remarked that the claimant did not express any remorse.  Neither of them asked the claimant where he would go if he was released or made any enquiry to acquaint themselves with any new information.
The (Chief Constable) has in my judgment to show that if released there was a real apprehension that a breach of the peace would be renewed.  By Sunday morning and after a night’s sleep the events of Saturday are beginning to recede.  The claimant could not be given conditional bail but he could be asked where he would go on release and (assuming he did not say to see Miss M) he could be warned that if he attempted to approach her that day they would regard it as conduct likely to precipitate a breach of the peace and he would be arrested.
5.4	It is therefore with great reluctance that I find that the detention of the claimant from late morning on Sunday 5 April has not been justified by the (appellants) on the basis that the person detaining him had a real apprehension based on reasonable grounds that if released he would renew his breach of the peace.  No proper assessment of the risk was carried out to enable them to be satisfied that a breach of the peace was imminent or about to occur.
I am equally satisfied that the officers acted genuinely and in what they perceived were the best interests both of Miss M and the public (and probably also those of the claimant).  I am sure there remained a constant risk of further domestic incidents involving violence and breach of the peace.  Indeed having attended at court and been released on 6 April, the police were called to further episodes of disturbance on 8, 11 and 12 April.
I am not asked to decide damages but I cannot pass over the evidence I have heard without indicating that I found the claimant an unreliable witness and one whose conduct merited his arrest and detention.  If Miss M had not been so frightened of him and had been prepared to bring a prosecution the claimant’s detention until Monday could have been justified.
I consider that the police officers acted bona fide in what they considered were the interests of  the public and Miss M.  They were exercising an anomalous power in respect of which, so far as I am aware, no separate guidance has been issued.
10.	The judge then goes on to refer to the question of damages and comments that in his view the claimant would be overcompensated were he to receive general damages for a detention lasting just under 24 hours.  He says that he would award the claimant “substantially less, because his arrest and detention for the first 20 hours or so were amply justified and brought upon himself by his own conduct”.  There is no cross-appeal against the award which, I understand, was a figure agreed between the parties and approved by the judge.  We are, accordingly, not concerned in this appeal with the  amount the claimant was awarded. 

11.	Before leaving the facts,  it is, I think, appropriate to record that, although (for reasons I shall explain shortly) the code of practice under the Police and Criminal Evidence Act 1984 (PACE) does not apply to arrests for a breach of the peace, the claimant was treated throughout as though it did. The custody record shows clearly what happened to the claimant throughout the period of his detention. He was, at his request, seen by a doctor on two occasions, and he was also seen by a solicitor, who had in fact interviewed him shortly before Sergeant Brock carried out the review which led to the decision made at 13.50 on 5 April 1998 to continue the claimant’s detention.  That decision, accordingly, is  the only point at which criticism of the police has been directed. 

Arrest and detention for breach of the peace 

12.	Some time in the hearing in this court was taken up with a discussion of the  history of the law relating to breaches of the peace, which Mr Tomlinson described as “of great antiquity and some obscurity”.  At the court’s request, Mr. Tomlinson produced extracts from Sir Thomas Skyrme’s substantial book History of the Justices of the Peace, and of his own book, written jointly with Richard Clayton, another member of the bar, entitled Civil Actions Against the Police, which contains a section dealing with the prevention of a breach of the peace. We were also shown an  article written by Professor Glanville Williams in the Criminal Law Review in 1954.

13.	It is plain that the concept of a breach of the peace, including the power to arrest in order to prevent it, is something of an anomaly in English law.  It was, however, expressly preserved by  (PACE)  and has recently  survived  the scrutiny of the European Court of  Human Rights in Steel and Others v United Kingdom. [1999] 28 EHRR 603,  (hereinafter referred to as Steel v UK).

14.	Mr. Tomlinson submitted that it was important to note that a breach of the peace is not a criminal offence under English law:-  see R. v. County Quarter Sessions Appeals committee ex parte Metropolitan Police commissioner [1948] 1 KB 260, although it is treated as one for the purposes of the European Convention on Human Rights (see Steel v UK).  Proceedings alleging a breach of the peace are commenced by a complaint made to justices, who have the power to bind over.  

15.	In the leading case of R v. Howell [1982] QB 416 at 427, Watkins LJ, giving the judgment of  the Criminal Division of this court stated that  a breach of the peace is committed:
“... whenever harm is actually done or is likely to be done to a person or in his presence to his property; or a person is in fear of being harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”
16.	When a breach of the peace takes place (or is threatened) there is a common law power of arrest and detention available to “every citizen”.  Mr Tomlinson cited to us Lord Diplock’s speech in Albert v Lavin [1982] AC 546, 565, where he said:

“Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.”
17.	The citizen’s right to exercise a power of arrest derives, of course,  from the fact that the  power is one which exists at common law.. The  three situations in which this power may be exercised, as identified  by Watkins LJ in R v. Howell (supra at p 426) are:   
(1)	where the breach is committed in the arrestor’s presence;

(2)	where the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested, even though at the time of the arrest no breach had been committed; and

(3)	where a beach of the peace had been committed and it is reasonably believed that a renewal of it was threatened. 

18.	Mr Tomlinson pointed out that police constables have no special power of
arrest for breach of the peace, and that no such power is mentioned in (PACE).  He also relied on the fact that because “breach of the peace” is not an “offence”,  the strict statutory regime governing police detention which is set out in Part IV of PACE has no application.  He submitted that a police officer is in no different position from any member of the public who arrests another member of the public “to prevent a breach of the peace”.

19.	Mr Tomlinson also pointed out that the duty to inform a person that he was
under arrest, and of the grounds for the arrest contained in section 28 of PACE is not restricted to arrests for “offences” and must, therefore, apply in the case of arrests for breach of the peace.  This duty, Mr Tomlinson argued, was placed on all persons making an arrest; not just constables.

Recent authority

20.	Two recent cases deal in some detail with the power to detain following an arrest for a  breach of the peace.  The first is the decision of this court in Foulkes v Chief Constable of Merseyside Police  [1998] 3 All ER 705.   The second is Steel v UK, a decision of the European Court of Human Rights (ECHR).

21.	Foulkes v Chief Constable of Merseyside Police arose from a domestic dispute in which the plaintiff was locked out of the jointly owned matrimonial home.  He called the police who advised him to leave the area until tempers had cooled.  He refused to do so and insisted that he wished to re-enter the house. He was then arrested by the police, as they feared that if he were to remain outside the property, or managed to re-enter, an argument or violence would occur,  thereby occasioning a breach of the peace.  The plaintiff was taken to the Police Station and remained in custody until the following day when he was released after  his wife withdrew her statement that she wished him  to be bound over to keep the peace.  

22.	The plaintiff began proceedings against the Chief Constable claiming damages for wrongful arrest and false imprisonment.  It was conceded at the trial that the police officer who had arrested the plaintiff had honestly believed that the arrest was necessary to prevent a breach of the peace, and the assistant recorder who tried the case held that the officer had reasonable grounds for his belief.  He therefore dismissed the plaintiff’s claim.

23.	This court allowed the plaintiff’s appeal,  holding that the common law power of a police constable to arrest where no actual breach of the peace had occurred, but where the officer apprehended that such a breach might be caused by apparently lawful conduct, was exceptional and should be exercised by the police officer “only in the clearest of circumstances, and when he is satisfied on reasonable grounds that a breach of the peace is imminent” (per Beldam LJ at [1998] 3 All ER 711b-c).  There had to be a sufficiently real and present threat to the peace to justify the extreme step of depriving a citizen of his liberty when that citizen was not at the time acting unlawfully.  In Foulkes v Chief Constable of Merseyside Police, the circumstances did not amount to a sufficiently serious or imminent threat to the peace to justify an arrest.  It followed that the police officer had not had reasonable grounds for arresting the plaintiff.

24.	It will be immediately apparent that Foulkes v Chief Constable of Merseyside Police was a quite different case on the facts to that which is before us.  In the instant case, as the judge found, the police had ample grounds to arrest the  claimant.  However, it is in my judgment important to observe that, although it was unnecessary for the Court of Appeal to consider whether the length of the period of Mr Foulkes’ detention  until being brought before the justices on the following morning was in the circumstances unreasonable, Beldam LJ, giving the leading judgment, nonetheless expressed the view that it was not.  He said that,  had it been necessary, he would have held that on the state of the evidence there was no question to be left to the jury on this issue. He cited a passage from the speech of Lord Porter John Lewis & Co Ltd v Tims [1952] AC 676 at 682 where it was said:

“There may be cases is which it could be contended that, though a reasonable amount of detention would be justified, the actual detention was unduly long.  In such a case it would be the duty of the judge to determine whether there was or was not evidence from which it could be deduced that the detention was unduly long, and if he held that there was, to leave the question to the jury whether in fact it was longer than was justified.”
Beldam LJ continued:       	                       

“Whilst I accept that the burden of  justifying the length of detention rests in its entirety on those who have deprived a plaintiff of his liberty, there must be some evidence upon which a jury could say that the delay in releasing him was too great.”           

25.	Beldam LJ also made the observation, with which I respectfully agree, that nothing in his judgment should be taken as detracting from the valuable protection which is so frequently given by the police who in the course of their duties become embroiled in the unreasonable domestic disputes of others and in which their help proves invaluable in preventing violence.

26.	In Steel v UK,  the ECHR carried out an analysis of  the concept of breach of the peace, and gave it a clean bill of health.  At paragraph 55 of its judgment, the court commented:

“In this connection, the court observes that the concept of  breach of the peace had been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence.  It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of  the peace.

Accordingly, the Court considers that the relevant legal rules provided sufficient guidance and were formulated with the degree of precision required by the Convention.”
27.	Steel v UK comprised a number of cases all concerning the arrest and detention of protesters for breaches of the peace. For present purposes,  the relevant Article of the European Convention on Human Rights and Fundamental Freedoms (the Convention) is Article 5, which in its material parts,  provides: 
	
Right to liberty and security

1.	Everyone has the right to liberty and security of person. No one shall be 
deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
	……….	
(c)	the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion  of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ……… 
2.	Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3.	Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall  be entitled to trial within a  reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial …….
5.	Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation	

28.	In the first case, the applicant, with 60 others, had attempted to obstruct a grouse shoot.  She was arrested for breach of  the peace for impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun.  She was detained for a total of 44 hours before being released on conditional bail.  She was charged with breach of the peace and using threatening words or behaviour contrary to section 5 of the Public Order Act 1986.  At trial, she was convicted of  a section 5 offence and for breach of the peace although in respect of the latter  the magistrates did not specify what behaviour justified the conclusion.  The applicant appealed but the conviction was upheld, and upon her refusal to be bound over, she was committed to prison for 28 days. 

29.	In the second case, the applicant had taken part in a protest against the building  of an extension of a motorway.  The protesters had repeatedly broken into a construction site and the appellant was arrested whilst standing under a digger, for conduct likely to provoke a disturbance of the peace.  She was detained for approximately 17 hours.  The magistrates found that the allegation of conduct likely to cause a breach of the peace was made out. She was ordered to agree to be bound over for 12 months to keep the peace in the sum of a £100, and when she refused she was imprisoned for 7 days.

30.	In the third case,  a group of three applicants had attended a “Fighter Helicopter II” conference in order to protest with others against the sale of fighter helicopters.  They handed out leaflets and held up banners saying “Work for peace not war”.  They were arrested and taken to a Police Station where their custody record stated the “circumstances” as being that they were acting in breach of the peace.  Having been detained for 7 hours they were taken before the magistrates who adjourned the hearing through lack of time.  The applicants were released and when proceedings were resumed a month later the prosecution called no evidence and the magistrates dismissed the case against them.

31.	The applicants in all three cases complained (inter alia) under Article 5 of the Convention that the concept of breach of the peace and the power to bind over were not sufficiently clearly defined for their detention to be “prescribed by law”; that their detention did not fall into any of the categories under Article 5(1) and that, because of the immunity of magistrates from civil proceedings, they had been denied a right to compensation in violation of Article 5(5).

32.	For present purposes, it is sufficient to record that the Court concluded  there had not been a violation of  Article 5(1) of the Convention as regards the  arrest and detention of  the  first two applicants. It found no reason to doubt that the  police were justified in fearing that the behaviour of these applicants, if persisted in, might provoke others to violence.  However,  in relation  to the three applicants in the third case,  the court held unanimously that there had been breaches of Article 5(1), as the three individuals were conducting an entirely peaceful protest, and the Court found no indication that their behaviour was likely to cause a breach of the peace or to justify the police in fearing that a breach of the peace was likely to be caused. 

33.	The applicants did not pursue their claims under Article 5(3) before the ECHR, which saw no reason to consider them of its own motion.  It is reasonably clear, therefore, that in no case was the period of detention considered unlawful. It is, however, perhaps also worth noting  that in  relation to the applicant in the first case the commission at paragraph 156 said this:

“The applicant however was not released once the grouse shoot was over.  Moreover she was detained for 44 hours before being brought before a magistrate.  The commission acknowledges some disquiet at the proportionality of the detention of this length.  However the commission notes that the police had removed the applicant from a potentially volatile situation, and that according to the charge record the police feared the applicant might commit further breaches of the peace if released. It is further noted in this respect that the detention of the applicant spanned a weekend and it is reasonable to assume that field sports, against which the applicant would possibly protest, were likely to occur over the weekend.  The commission considers that the detention of a person after involvement in a potentially volatile situation can serve the legitimate purpose of acting as a “cooling off” period and operate to ensure that the detainee does not immediately seek to repeat the behaviour.  The commission further notes that the applicant was brought before a magistrate immediately after the weekend, on Monday morning, and released.  In these circumstances the commission considers that the initial period of detention of the first applicant satisfies the test of proportionality under Article 10 of the convention.”                                  
34.	In relation to the second applicant, the commission at paragraph 161 said this:

“The commission refers to its reasoning above in relation to the first applicant.  The commission considers that the period of initial detention can be justified on the basis that it served to prevent the applicant returning to the scene of the protest and recommencing her behaviour.  Given the persistence of the applicant and the high likelihood of her simply returning to the scene of protest if released shortly after her arrest, the commission considers it is not inappropriate to allow a significant “cooling off” period.  In the circumstances the commission considers that the initial period of detention of the second applicant satisfies the test of proportionality under Article 10 of the convention.”
The application of these principles to the instant case: the judge’s approach

35.	The critical issue in the instant case is whether or not the claimant’s detention from about 13.50 on 5 April 1998 onwards was lawful.  After a discussion of the relevant authorities, the judge dealt with the test he should apply in the following paragraph of his judgment.  I have highlighted the words which, in my judgment, are of particular  importance.

“The use of words such as “imminent” “threatened” and “about to be committed” seem to imply an immediacy of time and proximity of place which is not entirely satisfactory where the person has been detained in a police station.  However I believe that the power to detain to prevent a further breach of the peace is limited to circumstances where there is a real (rather than fanciful) apprehension based on all the circumstances that if released the prisoner will commit or renew his breach of the peace within a short time. Continued detention cannot be justified on the ground that sooner or later the prisoner if released is likely to breach the peace because otherwise in the context of a stormy domestic relationship (such as this case) it is almost inevitable that further breaches of the peace will occur when the parties eventually meet.”

36.	For the appellant, Mr James Guthrie QC did not quarrel with the manner in which the judge formulated the test in this paragraph.  Nor do I.  To the contrary,  I regard it as a clear and straightforward test, which is readily understood and can be easily applied.  I would only add to it  two conditions (clearly implicit in the judge’s formulation but needing, perhaps, to be spelled out) namely: (1) that the officer making the decision for  continued detention  must have  an honest belief that further detention is necessary in order to prevent a breach of the peace  and (2) that there must be, objectively, reasonable grounds for that belief.
  
37.	The appellant’s complaint, accordingly, is not that the judge applied the wrong test; rather that, having formulated the correct test,  he failed to apply it.  The evidence before him,  as the judge records, was that both officers conducting the review at 13.50 on Sunday 5 April 1998 could not see any change in the circumstances, and took the view that the remand was necessary in order to bring the claimant before the court on Monday 6 April. The judge had also made a number of findings about the previous day, which I have set out earlier in  this judgment.  The appellant submits that the judge’s criticisms of the officers conducting the review at 13.50 on 5 April are unsustainable given those  findings.  
38.	In particular, Mr Guthrie pointed to the phrase used by the judge: “I am sure there remained a constant risk of further domestic incidents involving violence and breach of the peace”.  He submitted that the use of the word “constant” (meaning  “ever-present” or “there all the time”)  placed the case on its facts fair and square within the test formulated by the judge as justifying  continued detention, and  was the antithesis of the  generalised  “sooner or later”  concept  where  the mere fact of a turbulent relationship could not warrant  continued detention. Accordingly,  he argued, if there was a “constant risk” - as the officers  must have thought  (since nothing had changed)  - then that was plainly a factor which  they were bound to take into account  and would clearly justify continuing detention.
39.	Mr Guthrie also criticised what he described as the judge’s approach in relation to the proposed “question and answer” and/or “calming down” assessments.  He submitted that the tests proposed by the judge were  of no value and likely to produce an erroneous result. Were the custody sergeant to ask the claimant a loaded question such as where he would go on release, the claimant would be bound to give a self-serving answer.   Accordingly,  such an answer could not measure the real risk which the claimant presented of committing a fresh breach of the peace.  Equally, he argued, the fact that the claimant was calm at 13.50 on the Sunday afternoon was only one factor in a much broader equation. 

40.	I have come to the conclusion that there is force in these criticisms, and that their cumulative effect is sufficient to persuade me that the judge reached the wrong conclusion.  I am reinforced in this view by the fact that the judge, in finding that the claimant’s detention after about 1350 on Sunday 5 April 2001 was not justified, did not appear to give any or any sufficient weight to  several important  factors, including: (1)  the fears expressed by Miss M  that the claimant would return and assault her;  and (2) the fact that her accommodation remained within walking distance of the police station, and was thus likely to be the place to which the claimant would go. 

41.	Furthermore, this latter factor was  clearly bound up with another of  which  the judge makes no mention  at this final stage, although it was one which,  in my judgment,  he was clearly right previously to take into account when reviewing the detention at 1945 on 4 April 1998, namely the fact that on his release the claimant would be given his clothing, which had been bagged by Miss M and given to the police as a demonstration that  that her relationship with the claimant was at an end. . In setting out his reasons for holding the earlier period of detention lawful, the judge (perceptively in my view) had referred to the fact that the claimant was  “likely to be further inflamed when he was handed his belongings upon his release”.  In my judgment that factor remained live at 13.50 on the afternoon of Sunday 5 April 1998.

42.	 In all these circumstances I have come to the clear conclusion that had the judge properly applied the test he formulated for himself, he would have come to the conclusion that the continuing detention of the claimant until he could be brought before the magistrates on Monday 6 April 2001 was justified. 

General observations

43.	We were told by Mr  Guthrie that, particularly in cases of domestic violence, the police were often forced to rely on actual or potential breaches of the peace in circumstances where domestic discord had not actually degenerated into violence, alternatively where there were allegations of violence but no immediate or objective evidence of it. In these circumstances, both Mr. Guthrie and Mr. Tomlinson invited the court to give some general guidance to the police and to those arrested, so that  the rules for any such arrest and detention can be clear and readily understood  both by the police and those whom they arrest.

44.	Speaking for myself, I do not think that any such guidance is necessary. The circumstances in which an arrest for an actual or anticipated breach of the peace can take place are clear, and are set out in the judgment of Watkins LJ in R v Howell ,  the relevant extract from which is set out  at paragraph  17.  The test for detaining a person arrested for, or detained in connection with an actual or threatened breach of the peace is that formulated by the judge in this case, and is of general application. The practice of  the police in treating any person so detained as if  PACE applied to the detention, as occurred in this case, is plainly correct  The need regularly to review the detention to ascertain if it remains justified, as was done in the instant case, is also plainly correct. The need to bring a lawfully detained person before the magistrates court at the earliest opportunity is in accordance with Article 5(1)(c) of the Convention and is well established,  as is once again demonstrated by this case. In these circumstances,  in my judgment,  the law is clear, and no further general guidance is  required.

45.	For all these reasons, I would allow this appeal, and set aside the judgment in the claimant’s favour.

Lord Justice Mantell:

46.	I agree.

Order:

(1)	The appeal be allowed and the Order of His Honour Judge Bowers dated 10 January 2001 be set aside.
(2)	Judgment be entered for the Defendant.
(3)	The Claimant do pay the Defendant’s costs of the appeal and of the action on the standard basis, such costs to be subject to a detailed assessment, if not agreed. Determination of Claimant’s liability to pay such costs under section 11(1) of the Access to Justice Act 1999 be Postponed.
(4)	The Claimant’s costs be assessed in accordance with the provisions of the Access to Justice Act 1999.

(Order does not form part of the approved judgment)