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Yesterday evening, Chris Night and a colleague were arrested for attempting a piece of republican street theatre, involving a mock royal royal execution.
It was hardly a great surprise to discover they had been nicked to prevent a “breach of the peace” – an offensively elastic police power. Axiomatic to a free society is the idea of residual freedom – that people have a right to do what has not been forbidden. England was perhaps the country to move towards this principle, when the Magna Carta declared that “No freeman shall be taken, imprisoned, . . . or in any other way destroyed . . . except by the lawful judgment of his peers, or by the law of the land.” The law is supposed to set the parameters within which the state may interfere with its citizens. And yet some of our law – especially our uncodified common law – is so elastic as to make these parameters meaningless.
“Breach of the peace” is a phrase familiar to many activists. It seems crops up whenever we face kettles, and is often the basis on which police make arrests. This power derives, rather revealingly, from the duty of officers to “preserve the queen’s peace”. But what exactly this means has never been codified into law. Rather it has been built up by precedent.
As things stand, activists can be held responsible not only for their own actions, but for any potentially violent reactions that they might provoke. As the law professor, Richard Stone, notes, any disturbance, regardless of its legality, can be deemed a breech of the peace if police believe that it is likely to “provoke a violent reaction”. This presumably was the basis on which the police prevented Chris Knight from carrying out a mock royal execution.
This puts the tyranny of those who cannot handle an offence to their sensibilities on a legal footing. It prioritises the protection of bad tempers over the protection of free speech. Whatever else you might think about the Americans they would have none of this. What’s more it represents an incredibly expansive power of arrest – since it is based not on whether people have engaged in any particular act, but on conjecture about how others may react to what they have done.
In short, the “queen’s peace” is disturbing our freedom. It is worse than antiquated, and it is time we dropped the whole concept from our law.
To contact Reuben email firstname.lastname@example.org