Introduction
‘Quis custodiet ipsos custodes?’- The Satires of Juvenal
Over the years, the New South Wales police have received expanded powers through a raft of legislative amendments. It is evident that in dealing with any given circumstance that arises during the execution of their duties, officers may rely on both the common law and statutory powers to give effect to powers such as a warrantless arrest. In context of this power, the common law concept of the breach of peace deserves particular attention due to the dangers of misuse or abuse in its interpretation by the police. This paper will discuss how the common law and the Law Enforcement (Powers and Responsibilities) Act (2002) (LEPRA) give lawful effect to arrest and other various powers against offences connected to a breach of the peace. Finally, it will assess whether there is any practical desirability and utility of codifying such a power. This will be achieved by critically evaluating whether the current state of the law with respect to police discretionary powers effectively prescribes a balance between the law enforcement culture and the continuing maintenance of civil rights and liberties. In doing so, it will conclude by examining the consequences and implications of codification.
Development of ‘breach of the peace’
The breach of the peace is one of the earliest offences in common law whose provenance can be found through English law in the sanctity of the home unit where ‘every man was entitled to peace in his own house.’ However it was the King’s peace that gradually enveloped the lands, and thus any breach of peace was a breach of the King’s own.Despite this understanding, there is a paucity of formal literature tracing the precise developments of the power. The limited modern conception of it involves the role of the justices of the peace in England during the 14th century whom dispensed a form of preventative justice with respect to keeping the peace of His or Her Majesty’s. Eventually, this developed into an analogy between crime and a thing done ‘against the peace and dignity of the state.’ This historical limitation constrains the current assessment of the concept, particularly with respect to its content and creates uncertainty as to its future developments. Similarly, there continues to be no concrete definition or description discernible in statute. Both issues present the serious risk of misuse of power by deferring to the police’s unchecked discretion as to what a breach of peace is.

The current and widespread acceptance of the power stems from the English Court of Appeal judgment of Watkins LJ in R v Howell, which dealt with an arrest without warrant for an apprehended breach of the peace. His Honour (on behalf of the court) stated in obiter,
Unless there has been an act done or threatened to be done which either actually harms a person, or is likely to cause such harm, or which puts someone in fear of such harm being done … there is breach of the peace whenever actual harm is done or is likely to be done to a person or in his presence of his property or a person in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance.
The nature of the breach of peace is not an offence in itself, and though it may give rise to an offence recognised under law, it is preventative and not punitive. Such offences include, amongst other things, actual assault, resisting arrest, causing public disorder and alarm through wrongful conduct, or obstruction of a police officer in the execution of their duties. Mere annoyance, disturbance or abusive conduct is insufficient to warrant an arrest except if there is some element of actual or threatened personal violence. Another fundamental aspect of the concept is it remains central to the common law powers of preventing public disorder such as unlawful assembly. In prevention of public disorder, the powers occasioned to police (and some to ordinary citizens) include trespass (enter premises), restraint and detention, use of reasonable force, move-on directives, property confiscation and arrest (as is necessary and reasonable in the circumstances) of the person committing, or reasonably appears to be about to be committing, such a breach. Thus, any private citizen may undertake, though promptly, reasonable steps – except with respect to arrest under apprehension of breach of peace – to prevent the occurrence, continuance or threatened renewal of a breach of peace in their presence.
Of significance is that the concept is characterised as an imperfect obligation (rather than merely a right) of an ordinary citizen and should be contrasted to the perfect duties that arise under a police officer’s public role which is met with reproach, civil liability or disciplinary action if not executed. Though it is yet to be tested in the courts, it is unlikely that police will be liable for a breach, such as the tort of negligence, of its duty to prevent a breach of the peace given public policy grounds and legislative safeguards against such a claim. It is now appropriate to look at how a breach of the peace gives effect to a lawful arrest without warrant as stipulated under s 99 of LEPRA.

Powers of warrantless arrest under LEPRA
The ambitions of LEPRA are manifold, however its main objectives have been identified as consolidating the current legislation in NSW with respect to police powers as well as codifying the common law in order to strike a balance between effective law enforcement and civil freedoms, assist in ensuring clarity, reducing possibility of abuse of power through ignorance and assist in training. Nonetheless, it keeps intact the common law powers to deal with breaches of the peace unless the Act states otherwise expressly or by implication. The only mention of ‘breach of peace’ is found in Part 2 – Powers of Entry with respect to powers to enter premises in emergencies. In saying so, arrests without warrant are authorised by ss 99(1) and 99(2) of the Act, where an officer suspects on reasonable grounds that the person has committed an offence. This reflects similar treatment by the common law regarding reasonable suspicion of a breach of peace occurring or having occurred. The formulation of the section inherits a wide degree of discretion that runs a real risk of prejudicial treatment occurring in most circumstances. This particularly involves discriminatory treatment of vulnerable classes such as the youth, indigenous persons, the mentally-disabled, drug users and the homeless who are highly susceptible to coercion by move-on directions or arrest.
Discretionary policing powers
On any end of a spectrum, discretionary powers lie at the heart of modern policing. Police duties, by their very nature, are discretionary in the sense that they involve an exercise of interpretive judgment. On one end, the principle of legality takes the normative approach of eliminating discretion completely and on the other, unfettered discretionary powers absent of conditions or guidelines are inherently nebulous (and most dangerous) in nature. The words ‘suspects on reasonable grounds’ of s 99(2) begs the question on which part of the spectrum such discretion leans. In its interpretation, the clause prescribes a two-limb test in defining a lawful arrest with or without warrant. The first, being subjective in whether genuine suspicion was formed in the mind of the officer. The second is objective, being whether there were reasonable grounds or factual basis for forming that suspicion. As such, the courts have stated that the requirement of reasonable suspicion in this context is less than a reasonable belief but more than a remote possibility. The risk of misuse of power does not seem to have caused concern for the court by stating the threshold of reasonableness of the officer below that of a reasonable belief. However in saying so, the court also stipulated that it must create in the mind of a reasonable person an apprehension or fear of one of the states covered by s 357e of the Crimes Act. It cannot be a reason to consider investigation of the possibility of the existence of a fact. Justice Smart continued to say ‘[it] is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on materials which may be inadmissible in evidence and must have some probative value.’ Although police decision-making is amenable to judicial review, such a decision implies the court’s reluctance to completely intervene with the powers granted to police, which is not a novel result at all.
The doctrine of ‘constabulary independence,’ also applies to being free from political influence and interference to ensure that powers are exercised in the public’s interest and implied civil freedoms. It also erodes the common misbelief that the interest of police and civil liberties are antithetical. This may seem to be a paradoxical conclusion, however it becomes evident when Parliament amends and expands police powers swiftly as called upon such as those during the 2007 APEC Summit in Sydney. The critical implication of leaving discretion free from further political fettering of laws from the executive, whether politically or socioeconomically motivated, allows the police to engage with more appropriate on-the-spot responses to breaches of the peace as ‘successful policing depends on the exercise of discretion in how the law is enforced.’ The implication equally applies to the codification of flexible common law powers such as the breach of peace.
Implications of codifying the breach of peace
The current state of the law is flexible regarding the common law power of breach of the peace. By codifying the concept, either into strictly definitional form or an exhaustive list of proscribed activities that constitute what a breach of peace is, the independence afforded to police in effectual law enforcement is lost. If it is merely a codification, as Andrew Haesler implies in his paper, then its benefits must outweigh its harm to the current state of the law. Namely, it should not depart too far from the common law or seek to reduce its effects. This may render it impossible to codify, and therefore it should not be. To further satisfy why it should not be, it is appropriate to look at the safeguards against abuse of power.
A number a safeguards at all levels of the law as well as policy guidelines such as the Code of Practice for CRIMEand NSW Police’s Code of Conduct and Ethics help prevent any misuse of powers including those used against offences arising from a breach of peace. At common law, it is accepted that any arrest, including one without warrant, is a measure of last resort to secure the accused’s attendance at court. A summons or field court attendance notice must be used first if appropriate. Otherwise, only if necessary and reasonable, should the police enforce an arrest. Such an arrest is also qualified at statute by s 99(3) of LEPRA which further outlines that an officer should not make an arrest unless it achieves the specified purpose, such as preventing a continuance of the offence and Part 15 which state procedural requirements for lawful use of power. If all of the abovementioned hurdles are passed, then statutory authorities such as the NSW Ombudsman or the Police Integrity Commission are given powers, albeit to a limited extent, to investigate any breaches of duty and power of the officers concerned and make recommendations. Furthermore, there have been many instances of laws incorporating sunset clauses, such as those enacted during the APEC Summit, that have been enacted to remedy gaps of perceived inadequacy at common law. One example includes the amended Traffic Act which included a new s.23A provision enabling the police direction powers in respect to Anzac Day ceremonies, where contravention of the directions constituted an offence. Although such measures have been criticised, they are only temporary in time and limited to specific instances of application.
Conclusion
The breach of peace currently remains statutorily amorphous but far-reaching following the opportunity for police to have discretion as to its meaning during the execution of their duties. This has opened it to legitimate criticism of the risk of its abuse due to its uncertainty, where it could give legality to, inter alia, coercive actions such as warrantless arrests which it may not have if it was statutorily expressed. However, discretion is ubiquitous to modern policing and without it an effective law enforcement culture would be lost. There exist safeguards in statute, common law and policy to remedy the perceived shortfalls of retaining powers that remain completely under common law. This includes internal safeguards which ensure policing powers that are provided to the law enforcement bodies to serve the interests of the public are not misused nor abused. In the author’s humble view, it is difficult then to see how the failure to define the breach of peace power in succinct statutory form makes it too nebulous to retain, either at common law or at all, nor does its codification make the law any safer, satisfactory and robust than it already is under case law. That is to conclude, insofar as discretionary policing powers concerns, the current state of the law is effective in maintaining civil freedoms while fostering an effective law enforcement culture.

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[ 1 ]. See, generally David Dixon Law in Policing (Clarendon Press, 1997) 73.
[ 2 ]. Director of Public Prosecutions v Armstrong [2010] NSWSC 885.
[ 3 ]. Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) (NSW).
[ 4 ]. Sir Frederick Pollock The King’s Peace in the Middle Ages 1: Select Essays in Anglo-American Legal History, (Volume 2, 1907) 70
[ 5 ]. Ibid.
[ 6 ]. Daniel Hall Criminal Law and Procedure (Cengage Learning, 5th ed, 2008) 380-381.
[ 7 ]. Rollin Perkins & Ronald Boyce Cases and Materials on Criminal Law and Procedure (West, 3rd ed, 1982).
[ 8 ]. This is not within the scope of the paper and it will not question whether the power derives from common law jurisprudence, or whether existing practices were historically legitimised by case law in England.
[ 9 ]. R v Howell [1982] QB 416; [1981] 3 All ER 383; [1981] 3 WLR 501.
[ 10 ]. Ibid, 427.
[ 11 ]. See generally Minto v Police [1987] 1 NZLR 374.
[ 12 ]. R v Smith (1876) 14 SCR (NSW) 419; Webster v Watts (1847) 11 QB 311.
[ 13 ]. Nicholson v Avon [1991] 1 VR 212.
[ 14 ]. Lavin v Albert [1982] AC 546; also the person preventing the breach, if taking necessary and reasonable steps, is protected from criminal or civil action against them in doing so.
[ 15 ]. R v Turner [1962] VR 30, 38-39; however, excessive or unnecessary force will be unlawful and may amount to assault: R v Galvin [1961] VR 733, 737.
[ 16 ]. Nilsson v McDonald [2009] TASSC 66.
[ 17 ]. Minto v Police [1987] 1 NZLR 374.
[ 18 ]. DPP v Armstrong [2010] NSWSC 885.
[ 19 ]. LEPRA s 100 has abrogated this common law principle under Lavin v Albert.
[ 20 ]. Butterworths, Halsbury's Laws of England, vol 11 (10 September 2012) 4th ed, 108; R v Duffy [1966] 1 All ER 62; [1966] 2 WLR 229; similar provisions can be found in Queensland, Criminal Code Act 1899 s 260 and Western Australia, Criminal Code Act Compilation Act s 237.
[ 21 ]. Thompson v Vincent (2005) 153 A Crim R 577; [2005] NSWCA 219; BC200504685 at [152]; Hill v Chief Constable [1989] 1 AC 53 at 58; R v Commissioner of Police of Tasmania; Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390; a private law duty is not consonant with the police’s public duty of care: D'Orta-Ekenaike v
Victoria Legal Aid [2005] HCA 12 at [101].
[ 22 ]. See generally Hill v Chief Constable of West Yorkshire [1989] AC 53 ('Hill') 241;
Peat v Lin [2004] QSC 219, [10]; Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129; Mandy Shincore ‘Police Liability for Negligent Investigations: When will a Duty of Care Arise?’ (Deakin Law Review, Volume 10, No. 2); Civil Liability Act 2002 (NSW) s 43A.
[ 23 ]. New South Wales, Explanatory note (Law Enforcement (Powers and Responsibilities) Bill 2002); New South Wales, Hansard Extract Second Readings (Law Enforcement (Powers and Responsibilities) Bill 2002), House of Representatives, 17 September 2002.
[ 24 ]. LEPRA s 4(2); Second Reading speech by Attorney General stated that the ‘breach of peace’ is a well-known concept and the Act deliberately did not define it.
[ 25 ]. LEPRA Pt 8 broadly re-enacts arrest provisions, such as s 352, of the Crimes Act 1900 (NSW).
[ 26 ]. LEPRA s 99(2).
[ 27 ]. Tamara Walsh and Monica Taylor ‘‘You’re Not Welcome Here’: Police Move-On Powers and Discrimination Law’ (2007) 30 UNSW Law Journal 1.
[ 28 ]. Simon Bronitt and Philip Stenning ‘Understanding discretion in modern policing’ (2011) 35 Crim LJ 319; M Finnane, ‘Police and Politics in Australia – the Case for Historical Revision’ (1990) 23 Australian and New Zealand Journal of Criminology 218, 218.
[ 29 ]. R v Rondo [2001] NSWCCA 540, (2001) 126 A Crim R 562, 53 (Smart J with Spigelman CJ and Simpson concurring).
[ 30 ]. Kuru v State of New South Wales (2008) 236 CLR 1; (2008) 246 ALR 260; (2008) 82 ALJR 1021.
[ 31 ]. R v Rondo [2001] NSWCCA 540; see also Streat v Bauer and Blanco [1998] NSWSC 16.
[ 32 ]. R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 1 All ER 763.
[ 33 ]. Stephen Savage, Sarah Charman and Stephen Cope Policing and the Powers of Persuasion – The Changing Role of the Association of Chief and Police Officers (Blackstone Press Ltd, 2001).
[ 34 ]. ‘Police Powers’ (1983) 7 Crim LJ 1.
[ 35 ]. APEC Meeting (Police Powers) Act 2007 (NSW)
[ 36 ]. Lord Scarman The Brixton Disorders of 10-12 April (1981) [4-56].
[ 37 ]. Police Powers 2006: The Law Enforcement (Powers and Responsibilities) Act 2002, Public Defenders Office, Lawlink NSW.
[ 38 ]. Maccabaean Lecture, ‘Jurisprudence’ (Proceedings of the British Academy, 1983).
[ 39 ]. Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence).
[ 40 ]. New South Wales Attorney-General, ‘Second Reading of Law Enforcement (Powers and Responsibilities) Bill 2002’ (Legislative Assembly, Hansard, 17 September 2002); Commissioner of Police (Tas); Ex parte North Broken Hill Ltd (1992) 1 Tas R 99.
[ 41 ]. Ombudsman Act 1974 (NSW) s 31B - prescribes the functions of the Joint Committee.
[ 42 ]. Police Integrity Commission Act 1996 (NSW) prescribes the functions of the Commission.
[ 43 ]. APEC Meeting (Police Powers) Act 2007 (NSW) s 41; cf LEPRA s 87P - providing for repeal of Pt 6A powers.
[ 44 ]. Traffic Act 1937 (ACT).
[ 45 ]. See generally Forbutt v Blake (1981) 51 FLR 465, 475; s.23A now repealed.