Could an arrest for a breach of peace be considered from someone suffering from a serious mental health crisis in a private dwelling?

29 July 2020

Not reviewed after the date of publication


Could an arrest for a breach of peace be considered from someone suffering from a serious mental health crisis in a private dwelling?


With regard to the provisions of the Mental Health Act 1983; Section 136 would not be available due to the person being in a dwelling, however, a warrant under section 135 could be obtained to temporarily remove the person from private premises to a place of safety and for treatment. We appreciate however that such incidents do not always afford officers with the time to lay an information from an approved mental health professional when there is concern for a person's immediate safety.

With regard to breach of the peace, the main test which defines a breach of the peace is that as laid down in R v Howell:

'A breach of the peace is committed whenever harm is done, or is likely to be done to a person, or, in his presence to his property, or, whenever a person is in fear of being harmed through an assault, affray, riot or other disturbance'.

In the case of Friswell v Chief Constable of Essex Police 2004, an officer forcefully entered a property after a report of arguing had led them to believe a BoP had occurred and information that someone may have taken an overdose. The officer relied upon the common law power to prevent a breach of the peace and section 17(1)(e) of PACE to save life and limb. Although the officer in that case was found to have not entered lawfully, the key point in that case was that the officer did not have power to enter premises to carry out an investigation into an alleged breach or risk. The common law rule power concerning the entry onto premises was to deal with emergencies. An officer had to be satisfied that there was a real and imminent risk of a breach of the peace. With section 17(1)(e) the court held that the power exists to enable police officers to enter premises to deal with emergency situations where someone has suffered, or is at risk of suffering, serious injury or loss of life without immediate police intervention.

The Judge in that case did not rule out there being circumstances where entry would be lawful and gave the example of a domestic incident, finding an injured person and hearing threats to kill either others or themselves. In such circumstances the court stated that:

'... the powers that he or she has by statute, including the preserved power to enter the premises to deal with an existing or imminent breach of the peace, seem to me to be clear and adequate and, in my view, create no uncertainty as to the lawfulness of appropriate action to tackle such problems'.

The judge went on to say that:

'An important factor in deciding whether the use of force to enter premises was necessary for the purposes of section 17 was whether or not the officer had explained why entry was necessary. Despite the fact that an officer was not entering premises to make an arrest, he must still explain why he was entering.'

In our view, depending on all the surrounding circumstances, arrest/entry to prevent breach of the peace could be considered in the circumstances you describe if there is an immediate threat or danger and someone is at risk of suffering serious injury or loss of life.

To read more legislation about this, login to the legal database. 

Back to Legal Questions