Hi there.
If someone commits breach of the peace and admits it when the officers question them at the locus - do they take the offender to the police station? Or are there some circumstances where they will charge the person at the locus and then leave without taking the offender with them?
(assume the offender is no longer posing any threat to the public)
thanks in advance
cajar
Breach of the Peace
Started by
cajar
, Oct 11 2010 04:24 PM
18 replies to this topic
#2
Posted 11 October 2010 - 04:44 PM
Breach of the peace is a crime at common law so the power of arrest depends on whether it is in the interest's of justice to apprehend the offender. Removing someones liberty should be the last resort. Arrest would be necessary if:
- failing to desist
- of no fixed abode
- may abscond
- not satisfied as to their identity
- a danger to themselves or the public
Also if the offender is on bail or the BoP is aggravated i.e. weapon used in a private dwelling/hate crime.
- failing to desist
- of no fixed abode
- may abscond
- not satisfied as to their identity
- a danger to themselves or the public
Also if the offender is on bail or the BoP is aggravated i.e. weapon used in a private dwelling/hate crime.
#3
cajar
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Posted 11 October 2010 - 10:04 PM
Ok so it's not mandatory (in order to take fingerprints/dna etc) then.
Thanks
Thanks
#4
Posted 11 October 2010 - 10:43 PM
Not for a breach of the peace no. And indeed many other crimes as well, if you know where they live and are happy with identity etc, there is not always a requirement to arrest.
Usually arresting for BOP is because its the only way to restore the peace. They will usually be released when they have calmed down (sobered up). If they have already calmed down when you get there the necessity goes, but that's not to say other offences may have been committed.
Usually arresting for BOP is because its the only way to restore the peace. They will usually be released when they have calmed down (sobered up). If they have already calmed down when you get there the necessity goes, but that's not to say other offences may have been committed.
#5
Posted 12 October 2010 - 09:03 AM
Usually arresting for BOP is because its the only way to restore the peace. They will usually be released when they have calmed down (sobered up). If they have already calmed down when you get there the necessity goes, but that's not to say other offences may have been committed.
Sorry but this is the Scottish law section and we're talking about a Scottish BOP.
Usually you will arrest someone for a breach of the peace either because it is serious, they have been warned and fail to desist or because you think they will likely reoffend.
#6
cajar
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Posted 12 October 2010 - 09:43 AM
The incident in question was one where someone was shouting and swearing at his neighbour to intimidate, but when the police arrived he was reasonable and calm, and admitted the offence in its entirety.
From the comments above I believe I'd be correct in saying a) the police are not obliged to remove him to a police station and b) they would not have deemed it appropriate or necessary to do so, so it's very unlikely he would have been taken away.
The reason I'm asking is because this person has taken up a campaign of intimidation against his neighbour and we were wondering if his experience with the police would be sufficient to chill / stop the behaviour.
From the comments above I believe I'd be correct in saying a) the police are not obliged to remove him to a police station and b) they would not have deemed it appropriate or necessary to do so, so it's very unlikely he would have been taken away.
The reason I'm asking is because this person has taken up a campaign of intimidation against his neighbour and we were wondering if his experience with the police would be sufficient to chill / stop the behaviour.
#7
Posted 12 October 2010 - 04:03 PM
You're not 'the neighbour' are you?
I've no doubt some moderator will come along in a moment with the standard disclaimer, though before that I will say that in my experience getting the police involved in an ongoing neighbour dispute has very rarely been sufficient to 'chill/stop' the problem. Try talking to your neighbour, there must some reason for the dispute - most councils and even housing associations now have mediation services for exactly this reason.
Depends on what the intimidation is though I suppose, if it's leaving the wheelie bins slightly too much to the left so you you keep walking into them, then this probably isn't the right forum for you...
I've no doubt some moderator will come along in a moment with the standard disclaimer, though before that I will say that in my experience getting the police involved in an ongoing neighbour dispute has very rarely been sufficient to 'chill/stop' the problem. Try talking to your neighbour, there must some reason for the dispute - most councils and even housing associations now have mediation services for exactly this reason.
Depends on what the intimidation is though I suppose, if it's leaving the wheelie bins slightly too much to the left so you you keep walking into them, then this probably isn't the right forum for you...
#8
cajar
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Posted 12 October 2010 - 11:06 PM
No, I'm not "his neighbour". The victims involved are my friend and his wife, the offender is his neighbour.
They have exhausted all the normal avenues of conflict resolution including talking to him plainly but that has got them nowhere in spite of their best intentions. They are ignoring him now but his new course of action now is to threaten and shout aggressively at them as I described in the post.
Nelson, I'm not sure what in my post led you to believe "wheelie bins slightly too much to the left" was what they called the police for but I'm glad the other posters and officers who attended the incident listened to the facts presented and worked from there instead of making assumptions.
They have exhausted all the normal avenues of conflict resolution including talking to him plainly but that has got them nowhere in spite of their best intentions. They are ignoring him now but his new course of action now is to threaten and shout aggressively at them as I described in the post.
Nelson, I'm not sure what in my post led you to believe "wheelie bins slightly too much to the left" was what they called the police for but I'm glad the other posters and officers who attended the incident listened to the facts presented and worked from there instead of making assumptions.
#9
Posted 13 October 2010 - 12:20 AM
Well if there's no other solution available other than having you, sorry, "your friend", having the police continually attend to resolve your disputes, then that's a shame.
I offered you perfectly decent advice. If you don't want slightly facetious replies involving petty neighbour dispute scenarios, don't ask bizarre questions with the tiniest snapshot of the circumstances. You will only get the answers you want to hear when you skew the questions. We are sceptical creatures by nature you know...
My advice would still to be to look at mediation in the first instance. It's never too late.
I offered you perfectly decent advice. If you don't want slightly facetious replies involving petty neighbour dispute scenarios, don't ask bizarre questions with the tiniest snapshot of the circumstances. You will only get the answers you want to hear when you skew the questions. We are sceptical creatures by nature you know...
My advice would still to be to look at mediation in the first instance. It's never too late.
#10
Posted 13 October 2010 - 07:26 PM
Sorry but this is the Scottish law section and we're talking about a Scottish BOP.
Usually you will arrest someone for a breach of the peace either because it is serious, they have been warned and fail to desist or because you think they will likely reoffend.
Well excuse me for stumbling in here by mistake! I shall be sure to take my English comments back where they belong!
#11
Posted 13 October 2010 - 07:51 PM
Well excuse me for stumbling in here by mistake! I shall be sure to take my English comments back where they belong!
MartinC only highlighted to you that this is the law Scotland section. The reason why they are separate is to accommodate both legal systems and to avoid confusion between the differences in law.
#12
Posted 13 October 2010 - 08:38 PM
Fair enough, but I didn't actually realise that until after posting. Most comments relating to the offence seem just as valid for an English bop anyway, perhaps there isn't too much difference between these two offences either side of the border?
#13
Posted 13 October 2010 - 09:46 PM
Fair enough, but I didn't actually realise that until after posting. Most comments relating to the offence seem just as valid for an English bop anyway, perhaps there isn't too much difference between these two offences either side of the border?
It's not problem SoapyW. I have done it before and was met with the same response by many people. I didn't know there was an English BOP, but something about section 5. Their maybe slight differences in the definition which may divide the crime.
#14
Posted 13 October 2010 - 10:32 PM
There is a massive difference between the two jurisdictions, not necessarily in terms of what constitutes a breach but in how it is handled.
As far as I'm aware in E&W you arrest to prevent a breach of the peace, and magistrates can only bind you over to keep the peace. In Scotland it is an actual offence, with theoretical jail time, fines etc as a possibility. Large areas haven't been replaced by statutory legislation in Scotland because a breach sufficiently covers, from threatening letters to drunken idiots fall under the legislation.
As it is a common law offence our common law power of arrest applies which is relatively broad and has already been laid out above. The example you cited of when you'd arrest are but some of the reasons we could arrest for a breach.
I've never understood why people were bemoaning the lack of E&W recruitment when Scottish forces were still open (other than the weather...) - IMHO, even as an Englishman, Scots law has a great deal going for it in terms of simplicity, common sense and a lack of Home Office interference.
As far as I'm aware in E&W you arrest to prevent a breach of the peace, and magistrates can only bind you over to keep the peace. In Scotland it is an actual offence, with theoretical jail time, fines etc as a possibility. Large areas haven't been replaced by statutory legislation in Scotland because a breach sufficiently covers, from threatening letters to drunken idiots fall under the legislation.
As it is a common law offence our common law power of arrest applies which is relatively broad and has already been laid out above. The example you cited of when you'd arrest are but some of the reasons we could arrest for a breach.
I've never understood why people were bemoaning the lack of E&W recruitment when Scottish forces were still open (other than the weather...) - IMHO, even as an Englishman, Scots law has a great deal going for it in terms of simplicity, common sense and a lack of Home Office interference.
#15
Posted 14 October 2010 - 04:23 PM
Does a person fail to desist when a) after you have warned the person to stop shouting and swearing (discretion) and they do it again or b) after you have given them an ASB ticket they shout and swear?
#16
Posted 15 October 2010 - 05:41 PM
The former, they wouldn't get the offer of a fixed penalty unless they had desisted. What can happen is that they are arrested at the point to get them to stop and away from the area, but then if they calm down could be offered a ticket rather than go through the hassle of custody.
#17
Posted 16 October 2010 - 01:37 PM
I thought that, although it did sound unusual that you have the POA the person basically because they're not doing as their told (aswell as committing a breach).
#18
Posted 16 October 2010 - 02:03 PM
Failing to desist is a common law power which can sound a bit overbearing with the BOP but say for example a police assault. The Police (Scotland) Act 1967 creates the offence to assault a constable, however the power of arrest is silent... so more often than not they're getting arrested to prevent repition/failing to desist; i.e. if you didn't arrest them they'd keep assaulting you.I thought that, although it did sound unusual that you have the POA the person basically because they're not doing as their told (aswell as committing a breach).
#19
Posted 16 October 2010 - 03:09 PM
So, failing to desist means, for a person to fail to stop their course of conduct whether or not a constable instructs a person to stop?
Edit: I know it sounds rather formal, but it's the best way to get use to the language I think.
Still relating to BOP, I was watching a police documentary (night cops). Basically there was a man standing outside a nightclub on the pavement waiting for someone who was inside the nightclub and bouncers had phoned the police. The two officers arrived and asked the man to move on several times. The man was defiant and refused to move. He was arrested for BOP for refusing to desist. What I don't get is why it was a BOP when there is the offence of obstruction by pedestrians. Any ideas why?
Edit: I know it sounds rather formal, but it's the best way to get use to the language I think.
Still relating to BOP, I was watching a police documentary (night cops). Basically there was a man standing outside a nightclub on the pavement waiting for someone who was inside the nightclub and bouncers had phoned the police. The two officers arrived and asked the man to move on several times. The man was defiant and refused to move. He was arrested for BOP for refusing to desist. What I don't get is why it was a BOP when there is the offence of obstruction by pedestrians. Any ideas why?
Edited by Eurocopter, 17 October 2010 - 02:47 PM.
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