"When we smash windows..." Black Blocs and breaches of the peace

Abstract

Breach of the peace is a cornerstone of public order law in England and Wales and was considered recently by the Supreme Court in R. (on the application of Hicks) v Commissioner of Police for the Metropolis. However, the common starting-point for discussion of the doctrine is the case of Howell. It is argued here that this judgment has been misinterpreted to the extent that it requires a property owner to be present where a breach of peace is founded on harm or the threat of harm to property. The issue has been placed in stark relief by recent changes to the nature of protest. Black Bloc protestors eschew physical violence to persons but pursue a strategy of deliberate property damage. The police may intervene to prevent a breach of the peace that reasonably appears likely “in the near future”, but will be unable to intervene if the property owner is not present, unless harm to persons is anticipated or a criminal offence is “about to” be committed. This article re-examines Howell in light of the Black Bloc phenomenon and contends that, in the absence of legislation, the courts should clarify the law so that the threat of property damage is sufficient to constitute a breach of the peace whether or not the owner is present.