16 October 2019
Not reviewed after the date of publication
Could an occupant of a dwelling be arrested for breach of the peace if they are threatening self-harm and / or engaging in self-harm with a weapon, or does the harm have to be to another person?
It is our view that you would not be able to arrest the occupant of the property for breach of the peace in the circumstances.
We have been unable to find any case law in relation to breach of the peace where the harm involved was self-harm. The case law in this area has set a very clear theme whereby for a breach of peace to have been said to occur, the violent incident must have had some effect on another person.
For example, in the case of Bibby v Essex 2000 it was stated that in order to exercise the power of arrest for breach of the peace 'the conduct must clearly interfere with the rights of others', and in the case of Percy v DPP 1995, it was concluded that a breach of the peace will only have occurred where there has been an effect on others or others have been provoked in to violence.
Whilst we do not have all the information regarding the scenario, for example, whether there were other persons present in the premises and what effect (if any) the relevant self-harming had on them, it is still difficult to envisage any circumstances in which these principles could be applied to a case involving self-harm.
Additionally, as the principles governing breach of the peace are viewed as an ancient concept in law, it is our opinion that the lack of stated cases in relation to self-harm suggest this is not the manner in which the provision was intended to be used.
Therefore, consideration should be given to other police powers, as highlighted below:
Entry under section 17(1)(e) PACE
Although previous caution has been exercised around the use of section 17 of PACE, with the case of Syed v DPP 2010 suggesting that concern for welfare is too low a threshold to force entry under section 17(1)(e), the matter has more recently come to light in the case of Baker v Crown Prosecution Service 2018.
In this case it was confirmed that police officers may enter and search premises pursuant to section 17(1)(e) of PACE without the consent of the occupier, for the purposes of saving life or limb, as set out in section 17(1)(e) of PACE. It was held that the phrase 'saving life or limb' is wide enough to cover saving a person from causing serious harm to him or herself. In this case, the occupant was attempting to harm herself with a knife.
Once entry has been gained by an officer into a property, an assessment of the situation should then be made regarding how to proceed.
Mental Health Provisions
The provisions under section 136 of the Mental Health Act 1983 could not be exercised in your circumstances, as they do not apply when an individual is in a dwelling (this is outlined by section 136(1A) of the Act).
Section 135 of the Mental Health Act 1983 confers a power to temporarily remove persons from private premises where there is reasonable cause to suspect a person is suffering from mental disorder. However – this is only via a warrant which is not necessarily always practical when there is an immediate threat, so consideration should be given to this on a case-by-case basis.
Confirming this position, is the Code of Practice issued in accompany with the Mental Health Act 1983, which states that when there is a concern for an individual's well-being the legislative provisions contained under the Mental Health Act 1983 should be used instead of the power of arrest for breach of the peace (see paragraph 16.29 at page 143 of the Code of Practice).
Therefore, officers should proceed with caution in the use of their powers in dealing with this type of situation, as this could potentially provide members of the public with a right of complaint against a specific officers and/or the relevant force.
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