On 14 April 2011, the High Court of England and Wales ruled, in R (on the application of Joshua Moos and Hannah McClure) v The Commissioner of the Police of the Metropolis, that the police had acted unlawfully in “containing” (aka kettling) certain G20 protestors on 1 April 2009. It made clear that the police must be in reasonable apprehension of an “imminent breach of the peace” before taking “preventative action”. Preventative action includes kettling, but only “as a last resort catering for situations about to descend into violence”. That the police cannot arbitrarily kettle protestors can be seen as good news for political activists. The bad news, for those who see kettling as an always unjustifiably brutal form of collective punishment, is that the High Court affirmed its legality under the conditions stated above. And with these conditions, there is always room for interpretation.
For example, in defining the word “imminence”, the judges said that it simply meant a breach of the peace was “likely to happen”. At the same time, they admitted that any determination of likelihood “may be applied with a degree of flexibility”. Add to this the necessity for reasonable apprehension (what is reasonable?), it becomes clear that you don’t have to look too far to see that significant discretion is still retained by the police. How this bears out in practice is yet to be seen, but certain signs point towards a state of peace—officially the Queen’s peace—that is constitutively haunted by a violence that is sometimes latent, hidden and silently simmering, and at other times overt, furious and bloody.
One of these signs can be discerned from within the concept of the breach of the peace itself. Its currently accepted formulation was given in R v Howell: “We are emboldened to say that there is a breach of the peace 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 so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” And as Lord Bingham went on to note in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary, the essence of breach of the peace in Howell “was to be found in violence or threatened violence”. This, however, is only part of the story.
Breach of the peace is one of the oldest offences in common law. As Frederick Pollock has detailed in his essay on the King’s Peace, it can be traced back to the regard in Anglo-Saxon law for the sanctity of the homestead: “every man was entitled to peace in his own house” (Pollock, 70). If his peace were disturbed—by brawling, fighting, or even name-calling and other incivilities—the offender would owe him special amends. If the peace of the King’s home was breached, this was of course more serious than for the common man, and the offender risked being slain. The King’s peace was eventually extended from his home and highways to the whole kingdom. Whosoever breached the peace breached the King’s peace and risked doom.
As the King’s peace spread through the kingdom, its central role in the maintenance of public order was crystallized. In addition to the Anglo-Saxon custom of slaying the offender, we know torture was commonly used in the late Middle Ages. For example, scolds, legally defined as “troublesome and angry women, who, by their brawling and wrangling amongst their neighbours, break the public peace …”, were punished with a brank, an iron frame that encaged the head and that came attached with a spiked protrusion that was forced into the mouth so the woman would bleed if she dared ‘wag her tongue’ (see picture above). An officer would lead her around the streets where she was at the mercy of the mob.
In those times, the handling of any breach of the peace was fairly straightforward. You were either fined, tortured, executed or some combination of the three. There were no qualms in responding to a breach of the peace with what to our eyes would be horrifying violence. In modernity, this violence has become concealed under the regal garments of the rule of law and has faded into the background of Enlightenment progress. This does not mean it isn’t there, it just operates more subtly (or less honestly), ready to rear its bloody head when suitably provoked.
A spectacular example of this occurred during the Gandhi-inspired mass defiance of the British salt tax in India in 1930. It started with an organized march 220 miles to the sea to ‘illegally’ gather salt. Following Gandhi’s letter to the Viceroy explaining his intention to engage in a non-violent protest, the Viceroy replied expressing his regret that Gandhi would nonetheless violate the law and be a “danger to the public peace” (Gandhi, 305). Meanwhile, Gandhi exhorted: “let there be not a semblance of breach of peace even after all of us have been arrested” (Ibid., 308). Marchers were to cause no violence, injury or insult to the British and to even refrain from swearing (Ibid., 306). At one infamous point in a raid on a salt works, it was reported that they “marched up in groups of twenty-five and sat on the ground near the salt pans, making no effort to draw nearer … Finally the police became enraged by the non-resistance … They commenced savagely kicking the seated men in the abdomen and testicles … .” (Ibid., 315). The world witnessed the violence and brutality of those who were charged with keeping the peace. In effect, they breached their own peace, thus marking the beginning of the end of British rule in India.
What preliminary conclusions can be drawn from all this? An obvious one is that if violence is implicated in breach of the peace, then it is so on the side of the keepers as well as on the breachers. In principle, any threat to the established order could be interpreted as potentially violent. But rarely, if ever, does such an order recognize its own constitutive violence, the violence that preserves the law, the violence that provokes resistance in those subjected to it. Common law breach of the peace can thus be associated with the politics of resistance and insurrection. Consider the following startling passage by James Fitzjames Stephen from his A History of the Criminal Law of England:
Every crime is to a greater or less extent a breach of the peace, but some tend merely to break it as against some particular person or small number of persons, whereas others interfere with it on a wider scale, either by acts which strike at the State itself, the established order of Government, or by acts which affect or tend to affect the tranquility of a considerable number of persons, or an extensive local area. Attacks upon the State itself when they succeed cease to be within the scope of the criminal law. They put an end if not to all existing law, at least to all the existing sanctions of law, and constitute a new point of departure for a fresh set of political institutions. Even before the final success of a forcible revolution the common rules of criminal law may cease to be applicable to revolutionary proceedings, not because the theory of the law is altered, but because what may have been originally an apparently unimportant outbreak has changed into a civil war, in which each side is strong enough to compel the other to treat its adherents as enemies and not as criminals. (Fitzjames Stephen 241–2: Emphasis added).
When one is treated as an enemy (or adversary) to be challenged and not as a criminal to be prosecuted, we turn away from law and move towards an agonistic politics. With respect to breach of the peace, the palpable association with enmity goes back a long way. Pollock and Maitland write in their History of English law Before the Time of King Edward, that a “[b]reach of the King’s peace was an act of disobedience, and a much graver matter than an ordinary breach of public order; it made the wrong-doer the king’s enemy” (Pollock and Maitland 45). Let’s be clear: Fitzjames Stephen, Pollock and Maitland (two of whom were baronets) were in no way advocating revolution. They were establishment figures—jurists and legal professionals—who were describing how it was. If you wanted to become an enemy of the King, a good way to do it would have been to breach the peace. If the breach of the peace successfully overturned the established order, it ceased to be a breach of the peace under the terms of the new order. In the new order, it would be spoken of in terms of a noble struggle, war of liberation, and so on.
Pacification has always been the enemy of the revolutionary: to breach the peace is to strike at pacification. But what of the possibility of the breacher turning keeper …?
— Fitzjames Stephen J, A history of the criminal law of England, Volume 1 (Routledge, 1996 [first published 1883]).
— Gandhi R, Gandhi: The Man, his People, and the Empire (University of California Press, 2006).
— Pollock F and Maitland FW, History of English law Before the Time of King Edward (The Law Book Exchange 2007 [originally published as 2nd Edition, Cambridge University Press 1898]).
— Pollock F, Oxford lectures, and other discourses (Ayer Publishing, 1890).