Common Law Offence: Breach of the Peace

AuthorAilbhe O'Neill
DOI10.1350/jcla.2007.71.1.21
Published date01 February 2007
Date01 February 2007
Subject MatterIrish High Court
Irish High Court
Common Law Offence: Breach of the Peace
Thorpe v Director of Public Prosecutions (unreported, 17 February 2006)
This case came before the High Court by means of the consultative case
stated procedure, which allows a judge of the District Court to refer a
question to the High Court to obtain guidance on a point of law (a
procedure provided for in s. 52(1) of the Courts (Supplemental Provi-
sions) Act 1961). The accused had been arrested and charged with the
offence of ‘breach of the peace contrary to common law’. At his trial in
the District Court, he argued that this formulation referred only to a
power of arrest and not an offence and the District Judge referred that
question of law to the High Court, phrasing the case stated as follows:
(i) Is the offence of the breach of the peace contrary to common law known
to law?
(ii) If the answer to (i) is yes, may the offence be prosecuted in the District
Court and, if so, what is the available penalty?
The second question appears not to have been addressed in the judg-
ment of Murphy J.
The defendant’s main argument was based on the premise that
‘breach of the peace’ refers solely to the preventative jurisdiction which
allows the police (and private citizens) to intervene and arrest persons
where a breach of the peace seems imminent. It was also argued that the
definition of a ‘breach of the peace’ was so vague that it could not
constitute a criminal offence under Irish law.
The defendant relied on the commentaries of Glanville Williams
(Textbook on Criminal Law, 2nd edn (1983) 487) and Holdsworth (A
History of English Law, vol. III, 5th edn (1942) 603), as well as R vCounty
Quarter Session Appeals Committee, ex p. Metropolitan Police Commissioner
[1948] 1 KB 670. In that case, Lord Goddard CJ considered the Justice of
the Peace Act 1360 (which applies in Ireland by virtue of Poynings Act,
10 Hen. 7 (Ir), C 22 [1495]) and stated (at 673):
In my opinion the act of Edward III does not create any offence at all. It
deals with people who break or are likely to break the peace or cause a
breach of the peace.
The High Court was also referred to Steel v United Kingdom (1999) 28
EHRR 603, a decision of the European Court of Human Rights which
relied on the decision in Ex p. Metropolitan Police Commissioner above for
the proposition that there was no offence of breach of the peace at
common law under the law of England and Wales.
The DPP relied on a number of Irish authorities which, it was argued,
established the existence of the offence at common law in Ireland.
In Attorney-General vCunningham [1932] IR 28, the accused was found
guilty on indictment of ‘firing into a dwelling house’. On appeal it was
admitted by the Attorney-General that firing into a dwelling house was
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