Campaign for the Accountability of American Bases

HEADNOTE:
On 24 April 1989 the appellant entered a military air base on five separate occasions by climbing over the perimeter fence. The appellant’s aim was to stage a peaceful protest about the use of the base and the abuse of byelaws relating to the base. At no time did she commit or threaten any violence or cause any damage and on each protest attempt she was escorted off the base without incident. The Crown Prosecution Service laid a complaint against the appellant and applied to the justices for an order requiring her to enter into a recognisance to be of good behaviour and to keep the peace. Although there was no evidence that the appellant had used or threatened violence, the justices held, on the civil standard of proof, that a breach of the peace had been reasonably apprehended since the appellant’s repeated presence on the base could have provoked service personnel to violence. The justices ordered that the appellant be bound over to keep the peace and be of good behaviour for a period of 12 months and when she refused to consent to being bound over they committed her to custody for 14 days under s 115(3)3 of the Magistrates’ Courts Act 1980. The appellant appealed by way of case stated, contending that a breach of the peace had to involve violence or the threat of violence. The questions arose: (i) what had to be established to constitute a breach of the peace, (ii) whether a civil trespass alone could amount to a breach of the peace and therefore whether the appellant’s actions could have led to a breach of the peace, and (iii) what was the applicable standard of proof.

Held – A breach of the peace in the context of the justices’ powers to bind a person over to keep the peace under s 115 of the 1980 Act had to involve violence or the threat of violence. The violence did not have to be perpetrated by the defendant himself; it was sufficient if his conduct was such that violence from some third party was a natural consequence of his action, thus giving rise to a real risk, rather than a mere possibility, of some actual danger to the peace. It followed that a civil trespass could not of itself amount to a breach of the peace unless the circumstances were such that violence would be the natural consequence as, for example, where trespassers made continued incursions in the face of threats to use violence to remove them. Since on the facts there was no evidence before the justices which entitled them to find that the appellant’s non-violent acts of trespass would provoke service personnel to violent reaction, it followed that her conduct was not capable of amounting to a breach of the peace. The appeal would therefore be allowed and the order made by the justices quashed; dictum of Watkins LJ in R v Howell [1981] 3 All ER 383 at 388-389 applied; dicta of Avory J in R v Sandbach, ex p Williams [1935] All ER Rep 680 at 681 and of Lord Denning MR in R v Chief Constable of the Devon and Cornwall Constabulary, ex p Central Electricity Generating Board [1981] 3 All ER 826 at 832 doubted.

Per curiam. Although it was not necessary to categorise proceedings to bind over for breach of the peace as either criminal or civil, in view of the consequence that failure to comply with the order to enter into a recognisance could result in imprisonment, the criminal standard of proof, namely proof beyond reasonable doubt, was the appropriate standard.

CASES-REF-TO:
Beatty v Gillbanks (1882) 9 QBD 308, [1881-5] All ER Rep 559, DC.
Botross v Hammersmith and Fulham London BC (1994) Times, 7 November, DC.
Bramblevale Ltd, Re [1969] 3 All ER 1062, [1970] Ch 128, [1969] 3 WLR 699, CA.
Bugg v DPP, DPP v Percy [1993] 2 All ER 815, [1993] QB 473, [1993] 2 WLR 628, DC.
Carr v Atkins [1987] 3 All ER 684, [1987] QB 963, [1987] 3 WLR 529, CA.
Everett v Ribbands [1952] 1 All ER 823, [1952] 2 QB 198, CA.
Hughes v Holley (1986) 86 Cr App R 130, DC.
Parkin v Norman, Valentine v Lilley [1982] 2 All ER 583, [1983] QB 92, [1982] 3 WLR 523, DC.
R v Aubrey-Fletcher, ex p Thompson [1969] 2 All ER 846, [1969] 1 WLR 872, DC.
R v Bolton Justices, ex p Graeme (1986) 150 JP 129, CA.
R v Chief Constable of the Devon and Cornwall Constabulary, ex p Central Electricity Generating Board [1981] 3 All ER 826, [1982] QB 458, [1981] 3 WLR 967, CA.
R v Howell [1981] 3 All ER 383, [1982] QB 416, [1981] 3 WLR 501, CA.
R v Marlow Justices, ex p O’Sullivan [1983] 3 All ER 578, [1984] QB 381, [1984] 2 WLR 107, DC.
R v Morpeth Ward Justices, ex p Ward (1992) 95 Cr App R 215, DC.
R v Sandbach, ex p Williams [1935] 2 KB 192, [1935] All ER Rep 680, DC.
R v Southampton Justices, ex p Green [1975] 2 All ER 1073, [1976] QB 11, [1975] 3 WLR 277, CA.
R v Woking Justices, ex p Gossage [1973] 2 All ER 621, [1973] QB 448, [1973] 2 WLR 529, DC.
Wise v Dunning [1902] 1 KB 167, [1900-3] All ER Rep 727, DC.

INTRODUCTION:

Case stated Lindis Elizabeth Percy appealed by way of case stated by the justices for the County of Cambridgeshire for the Petty Sessional Division of Huntingdonshire, sitting at Huntingdon, from the justices’ decision on 6 October 1992 whereby, following a complaint laid by the Crown Prosecution Service on behalf of the respondent, Fred Richard Williams-Brown, that the appellant on 24 April 1992 did unlawfully conduct herself by entering as a trespasser RAF Alconbury, Cambridgeshire, in circumstances whereby a breach of the peace was reasonably apprehended, the justices ordered that the appellant be bound over in the sum of £100 to keep the peace and be of good behaviour for a period of 12 months. The questions stated by the justices for the consideration of the Divisional Court areset out at p 130 b c, post). The facts are set out in the judgment of the court.

COUNSEL:
Edward Fitzgerald and Quincy Whitaker for the appellant; Simon Readhead for the Director of Public Prosecutions.
JUDGMENT-READ:
Cur adv vult 6 December 1994. The following judgment of the court was delivered.
PANEL: BALCOMBE LJ, COLLINS J

JUDGMENTBY-1: COLLINS J
JUDGMENT-1:
COLLINS J: This is the judgment of the court on an appeal by way of case stated from a decision of the Cambridgeshire justices sitting at Huntingdon. On 28 September 1992 the justices heard a complaint laid by the Crown Prosecution Service on behalf of one Fred Richard Williams-Brown, an officer of the Ministry of Defence police, that the appellant, Miss Lindis Elizabeth Percy –‘on 24th April 1992 did unlawfully conduct herself by entering as a trespasser R.A.F. Alconbury, Cambridgeshire, in that [she] climbed over the perimeter fence and an inner gate and entered the motor vehicle pool compound at R.A.F. Alconbury in circumstances whereby a breach of the peace was reasonably apprehended. The said Fred Richard Williams-Brown therefore applies for an order requiring the [appellant] to enter into a recognisance to be of good behaviour and keep the peace.’

As originally laid, the matters complained of were said to be ‘contrary to common law’, but that was amended at trial to read ‘Pursuant to Justices of the Peace Act 1361′. We were told that the purpose of that amendment was to enable the justices to make use of their powers under the 1361 Act if they did not find the complaint proved. Following a full day hearing on 28 September 1992, the justices adjourned the case to consider their decision and on 6 October 1992 they found that the complaint had been proved and that it was necessary to bind the appellant over to prevent any recurrence of the behaviour which had led to the complaint. They ordered that she should be bound over in the sum of £100 to keep the peace and be of good behaviour, particularly towards Mr Williams-Brown, for a period of 12 months. It is accepted by Mr Readhead, who appeared on behalf of the respondent and to whom we are particularly grateful for his cogent and realistic submissions, that the inclusion of the reference to Mr Williams-Brown was inappropriate in the circumstances of this case, but he contends and we accept that that would not affect the validity of the order if it were otherwise properly made. The appellant refused to consent to being bound over whereupon the justices committed her to custody for 14 days pursuant to their powers under s 115(3) of the Magistrates’ Courts Act 1980.

An application to the justices to state a case was made immediately and on 9 October 1992 the appellant was granted conditional bail by Alliott J. Thereafter there has been considerable delay because of the refusal of the justices to state a case which resulted in the need for the appellant to seek and obtain an order of mandamus. The case itself was not stated by the justices until May 1994.

The facts found are these. The appellant had entered the military air base at RAF Alconbury on five occasions between 1.30 p m and 3.30 p m on 24 April 1989. At this time RAF Alconbury was used by United States personnel and aircraft. Each time she had climbed over the perimeter fence and had been discovered at various locations within the base. On the first occasion she was arrested by a Ministry of Defence policeman on suspicion of causing criminal damage to the perimeter fence and was escorted off the base and released. She had not in fact caused any damage. On the fourth occasion the same policeman saw her climb the fence and speak to an armed US serviceman, whereupon he went over and escorted her off the base. On the last occasion she was spotted by two armed US security officers walking close to a well-signed restricted area near to where two aircraft were parked. The officers were concerned at her proximity to the aircraft in case they should be damaged by her and so they approached her, apprehended her and began to escort her away. At some stage, another US security officer came on the scene. The appellant walked away. The officer who went to apprehend her was first disarmed, but this we have been told was standard procedure and we should draw no inference from it that any violence was feared from the appellant. The appellant then sat down and waited for a Ministry of Defence policeman to arrive. When two did, she was arrested under the RAF Alconbury Byelaws 1985, SI 1985/1340, for obstruction and removed.

The appellant was taken to a police station and there charged that she had ‘conducted herself in a noisy, disorderly and turbulent manner to the annoyance of the said base authorities and in breach of the peace’. This, in the light of the evidence available, was a somewhat surprising allegation. A summons based on that charge was subsequently issued, but was not pursued.

When charged, the appellant said that she had gone peacefully and non-violently to protest about the abuse of law, namely the byelaws, and the continuing expansion of the war machine. She, together with a Mr Bugg and Miss Greaves, had for some years been conducting a campaign designed to challenge the legality of the Ministry of Defence’s attempt to exclude members of the public from service bases. A major part of that campaign involved an attempt to establish that the byelaws, which made criminal any unauthorised incursions on the bases, were invalid. That attempt was successful when on 31 July 1992 this court decided that the byelaws were indeed invalid (see Bugg v DPP, DPP v Percy [1993] 2 All ER 815, [1993] QB 473). No doubt because of the imminence of those proceedings, in April 1992 it was the policy of the Crown Prosecution Service not to prefer charges under the byelaws.

The justices’ findings in relation to the appellant’s conduct are set out in the case as follows:
‘There was no direct evidence that the appellant used or threatened violence to any of the witnesses. We accepted PC Svarups’ evidence that on the first occasion when he arrested the appellant, she was “a little bit loud” although on the other occasions, whilst assertive, she was peaceful and non-violent. There was no evidence that the appellant directly threatened the witnesses or damaged any property.’

From the recital of the arguments set out in the case, it is clear that it was being urged on behalf of the complainant that the appellant’s conduct was such that a breach of the peace was reasonably apprehended. The contention was not that the appellant would herself be guilty of any violent conduct, but that personnel on the base, in particular US servicemen who might be armed, might react to her presence in such a way as would cause a breach of the peace.

The 1361 Act pursuant to which the allegations were made reads as follows:
‘First, that in every county of England shall be assigned for the keeping of the peace, one lord, and with him three or four of the most worthy in the county, with some learned in the law, and they shall have power to restrain the offenders, rioters, and all other barators and to pursue, arrest, take, and chastise them according [to] their trespass or offence; and to cause them to be imprisoned and duly punished according to the law and customs of the realm, and according to that which to them shall seem best to do by their discretions and good advisement . . . and to take and arrest all those that they may find by indictment, or by suspicion, and to put them in prison; and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the King and his people, and the other duly to punish; to the intent that the people be not by such rioters or rebels troubled nor endamaged, nor the peace blemished, nor merchants nor other passing by the highways of the realm disturbed, nor put in the peril which may happen of such offenders . . .’

The powers granted by that Act have been exercised to prevent breaches of the peace and to ensure good behaviour by those who were found to be not of good fame. Furthermore, justices have powers which are perhaps somewhat wider, which existed prior to the 1361 Act and whose origin is lost in the mists of antiquity, generally to act to prevent conduct which is contrary to a good way of life. This has been said to be conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary citizens (see Hughes v Holley (1986) 86 Cr App R 130). We are not concerned with that aspect of justices’ powers, whether under the 1361 Act or at common law, since the justices in this case were only being invited to exercise their powers against the appellant in order to prevent a breach of the peace.

Prior to 1879 justices could make an order that an individual find sureties to keep the peace or to be of good behaviour without hearing anyone other than the complainant and even in the absence of the defendant. It was a drastic form of quia timet proceedings. The Summary Jurisdiction Act 1879, s 25, abolished this form of proceedings and effectively disabled the justices from acting ex parte. Section 25 read:
‘The power of a court of summary jurisdiction, upon complaint of any person, to adjudge a person to enter into a recognizance and find sureties to keep the peace or to be of good behaviour towards such first-mentioned person, shall be exercised by an order upon complaint . . . and the complainant and defendant and witnesses may be called and examined and cross-examined . . .’

These provisions are now to be found in s 115 of the 1980 Act, which reads:
‘(1) The powers of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint . . .
(3) If any person ordered by a magistrates’ court under subsection (1) above to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour fails to comply with the order, the court may commit him to custody for a period not exceeding 6 months or until he sooner complies with the order.’
It is important to bear in mind that the justices were here considering a complaint laid under s 115(1) of the 1980 Act. Their order makes it clear that they were exercising their powers under s 115(3) when they committed the appellant to prison for 14 days. Once the appellant indicated that she would not enter into the recognisance, she failed to comply with the order and so, assuming the order was properly made in the first place, their power to commit under s 115(3) was exercisable.

As will be apparent, the purpose of s 25 of the 1879 Act and now of s 115 of the 1980 Act was and is to provide a means whereby the defendant whose conduct is said to require that he be bound over is brought before the court. Section 115 does not affect the justices’ powers to bind over a person already before the court, whether he be a complainant or a defendant, if the justices consider that it is necessary to do so. Such an order can only be made if it emerges that there might be a breach of the peace in the future (see R v Aubrey-Fletcher, ex p Thompson [1969] 2 All ER 846, [1969] 1 WLR 872). It can be made at any stage of the proceedings and even if the defendant is acquitted of whatever charge he has faced. It can also be made against a witness. The justices’ jurisdiction depends upon the person’s presence before them, and, save in the case of a defendant, no order can be made unless that person is warned what the justices intend and is given an opportunity of making representations (see R v Woking Justices, ex p Gossage [1973] 2 All ER 621, [1973] QB 448). But if a complaint is laid under s 115(1), it must be proved in order to found the power to make an order, a failure to comply with which can result in imprisonment under s 115(3).

The justices have asked four questions in the case. These are:
‘(1) Whether we were right to find that a breach of the peace was apprehended when no evidence was called from any witness who stated that such a breach was so apprehended, the only evidence being that of a potential civil trespass (i.e. whether a civil trespass can amount to a breach of the peace)? (2) Whether the appellant’s conduct was capable of amounting to a breach of the peace within the definition provided by the existing case law? (3) Whether the criminal or civil standard of proof applies to an application for a bind over? (4) Whether we have the power to bind over a party for a civil trespass and whether we have the power to imprison a party in default of consenting to such an order to be bound over?’

Three main issues arise from these. First, what must be established to constitute a breach of the peace? Secondly, was there any evidence which entitled the justices to find that what the appellant did could have led to a breach of the peace? Thirdly, what standard of proof is applicable?

Mr Fitzgerald on behalf of the appellant submitted that a breach of the peace in the context of the 1361 Act and s 115 of the 1980 Act must involve violence or the threat of violence. That violence need not be perpetrated by the defendant; it suffices that his conduct is such that the natural consequence of it is violence from some third party. This follows from Wise v Dunning [1902] 1 KB 167, [1900-3] All ER Rep 727. In that case the appellant was a Protestant lecturer who had held meetings in Liverpool in public places in the course of which he had used gestures and language which were highly insulting to Roman Catholics. There had been disorder at these meetings and such disorder was found to be the natural consequence of the appellant’s activities. After citing Beatty v Gillbanks (1882) 9 QBD 308, [1881-5] All ER Rep 559, Lord Alverstone CJ said ([1902] 1 KB 167 at 175-176, [1900-3] All ER Rep 727 at 730):
‘I have referred to those cases, not for the purpose of endeavouring to deduce from them any new rule of law, but for the purpose of pointing out that, in a number of cases and before different judges, what I may call the essential condition has been stated, substantially in the same way though in different language, that there must be an act of the defendant, the natural consequence of which, if his act be not unlawful in itself, would be to produce an unlawful act by other persons.’

He went on to state that in considering the natural consequence of a man’s acts who had used insulting language in the public streets towards persons of a particular religion, the magistrates were bound to take into consideration the fact that there was a large body of those persons in the town. Darling J adopted the same approach and Channell J, in a short concurring judgment, said ([1902] 1 KB 167 at 179-180, [1900-3] All ER Rep 727 at 732-733):
‘I am of the same opinion. I agree with the proposition for which counsel for the appellant contended — namely, that the law does not as a rule regard an illegal act as being the natural consequence of a temptation which may be held out to commit it. For instance, a person who exposes his goods outside his shop is often said to tempt people to steal them, but it cannot be said that that is the natural consequence of what he does. Again, the House of Lords has recently held that, where a blank space is left in a cheque which enables a person to increase the amount by adding figures, it is not the natural consequence that somebody should be led to commit forgery by writing figures into the cheque. The proposition is correct and really familiar; but I think the cases with respect to apprehended breaches of the peace shew that the law does regard the infirmity of human temper to the extent of considering that a breach of the peace, although an illegal act, may be the natural consequences of insulting or abusive language or conduct. Possibly this is an exception to the rule which the appellant’s counsel pointed out to us; but I think it is quite clearly made out upon the cases which have been cited to us.’

The same approach is to be found in R v Morpeth Ward Justices, ex p Ward (1992) 95 Cr App R 215, a case involving the binding over of activists who had invaded a field where a pheasant shoot was in progress in an endeavour to stop the shoot. Brooke J said (at 219-220):
‘This line of authority shows that so long as the Queen’s peace is put at risk by the disorderly activities of the person against whom the justices are invited to exercise their bindover powers, then it is not necessary to show that that person put anyone in bodily fear if his disorderly conduct would have the natural consequence of provoking others to violence.’

The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.
In R v Howell [1981] 3 All ER 383, [1982] QB 416, upon which Mr Fitzgerald particularly relies, the Court of Appeal was concerned with powers of arrest in respect of a breach of the peace. Watkins LJ said ([1981] 3 All ER 383 at 388-389, [1982] QB 416 at 426):

‘A comprehensive definition of the term “breach of the peace” has very rarely been formulated so far as we have been able, with considerable help from counsel, to discover from cases which go back as far as the eighteenth century. The older cases are of considerable interest but they are not a sure guide to what the term is understood to mean today, since keeping the peace in this country in the latter half of the twentieth century presents formidable problems which bear on the evolving process of the development of this branch of the common law. Nevertheless, even in these days when affrays, riotous behaviour and other disturbances happen all too frequently, we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks on a person’s body or property.’

It is clear from the last sentence that harm to property will constitute a breach of the peace only if done or threatened in the owner’s presence because the natural consequence of such harm is likely to be a violent retaliation. Thus R v Howell makes it clear that there must be violence or threatened violence for there to be a breach of the peace to justify an arrest. R v Howell was applied in the context of s 5 of the Public Order Act 1936 in Parkin v Norman, Valentine v Lilley [1982] 2 All ER 583 at 590, [1983] QB 92 at 102, McCullough J saying:
‘As counsel for the respondents concedes, the justices were in error in thinking that a mere disturbance not involving violence or a threat of violence could amount to a breach of the peace.’

There is in our judgment no justification for giving a different meaning to breach of the peace when used in the context of justices’ powers to bind over to keep the peace. There is no binding authority which requires us so to do. But there are some dicta which do suggest a wider meaning to the expression. Thus in R v Chief Constable of the Devon and Cornwall Constabulary, ex p Central Electricity Generating Board [1981] 3 All ER 826 at 832, [1982] QB 458 at 471 Lord Denning MR stated:
‘There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace.’

Neither Lawton LJ nor Templeman LJ agreed with these observations. Indeed, it is in our view implicit in what each said that they took the view that some violence or threat of violence was necessary (see [1981] 3 All ER 826 at 837, 839, [1982] QB 458 at 476, 480 per Lawton and Templeman LJJ).

In R v Sandbach, ex p Williams [1935] 2 KB 192 at 196, [1935] All ER Rep 680 at 681 Avory J said:
‘. . . I must say I am not prepared to assent to [the] proposition that there can be no binding over of a person to be of good behaviour unless he has done something which tends to a breach of the peace in the sense of something which is calculated to lead to violence, that is, to personal violence. In my view, the phrase “calculated to lead to a breach of the peace” is far more extensive in its meaning . . .’

That seems, with respect, to be conflating the two elements in the 1361 Act or the justices’ common law powers, namely the prevention of breaches of the peace and the prevention of conduct which is contrary to a good way of life, whatever that expression may comprehend.
Furthermore, in so far as Denning LJ in Everett v Ribbands [1952] 1 All ER 823, [1952] 2 QB 198 appeared to equate a breach of the peace to the commission of a criminal offence or breaking the law of the land, we think he went too far.

In our judgment, breach of the peace is limited to violence or threats of violence as set out in R v Howell and any observations which may indicate something wider ought not to be followed.

In the light of what was needed to establish the complaint, namely that the natural consequence of the appellant’s conduct was violence, we should rehearse the justices’ findings set out in the case.

‘We were of the opinion that on 24 April a breach of the peace was reasonably apprehended and, therefore, the complaint had been proved. In reaching that decision we were satisfied that: (1) The appellant had not been given permission to enter the RAF Alconbury Air Base on 24th April 1992. (2) The appellant had entered the base five times in a period of approximately two hours, by climbing over the perimeter fence instead of attempting to enter openly through the main gate. (3) The appellant’s stated purpose that day was to test the bye-laws and in her words “to protest about . . . the continuing expansion of the war machine”. (4) The appellant’s conduct that day had the effect of preventing the police and security personnel from going about their other lawful business. (5) Having regard to the above the appellant was disorderly and disrupted the air base. We took account of the nature of the air base, in that armed personnel were protecting equipment, aircraft and motor vehicles. Although there was no evidence the appellant physically threatened any person or threatened to damage any property, we found that her repeated presence could have provoked others to violence resulting in a breach of the peace.’

Whilst we would not accept Mr Fitzgerald’s submission, which, in fairness to him, he did not press very hard, that there should have been evidence presented to the justices that a breach of the peace was apprehended by someone present at RAF Alconbury on 24 April 1992, we do agree with him that there was no evidence put before the justices which entitled them to find that violence was the natural consequence of any of the appellant’s actions. Similarly, when looking to the possibility of further trespass by the appellant, they had to be satisfied that there might be violence. In our judgment, there had to be a real risk, not a mere possibility of a breach of the peace (see R v Aubrey-Fletcher, ex p Thompson [1969] 2 All ER 846 at 848, [1969] 1 WLR 872 at 874 per Edmund Davies LJ). The finding in the case that the appellant’s conduct ‘could have’ provoked others to violence, apart from being unsupported by the evidence, is in our view too vague to justify making any order. We regard it as highly improbable that the non-violent acts of trespass committed by the appellant would provoke trained personnel to violent reaction.

It is apparent that the justices were influenced in reaching their decision by the dicta of Lord Denning MR in the Central Electricity Generating Board case, which we have already held to be erroneous. That would suffice to quash the order appealed against.

The justices were also addressed on the correct standard of proof. They decided that, as they were hearing a complaint, the civil rather than the criminal standard of proof was appropriate. We were told that there is no direct authority on this point. In our judgment, it is not necessary to categorise the proceedings in order to determine the standard of proof applicable. In Re Bramblevale Ltd [1969] 3 All ER 1062, [1970] Ch 128 the Court of Appeal decided that to establish a civil contempt of court proof beyond reasonable doubt was required. This was because imprisonment might result. Winn LJ stated that the proof must be ‘consistent with such standard as the court . . . regards as consistent with the gravity of the charge . . .’ (see [1969] 3 All ER 1062 at 1064, [1970] Ch 128 at 137). A failure to comply with the order to enter into a recognisance can result in imprisonment. The order is made to uphold the peace and so one is immediately in the realm of law enforcement in the public rather than a private interest. We note, too, that in R v Bolton Justices, ex p Graeme (1986) 150 JP 129 the Court of Appeal decided that an application relative to a complaint under s 115 of the 1980 Act was prima facie in a criminal cause or matter and that in Everett v Ribbands [1952] 1 All ER 823 at 826, [1952] 2 QB 198 at 206 Denning LJ described the powers as bearing ‘many of the characteristics of a criminal proceeding’. The fact that it is commenced by complaint rather than information is not conclusive (see Botross v Hammersmith and Fulham London BC (1994) Times, 7 November). Our attention has been drawn to R v Marlow Justices, ex p O’Sullivan [1983] 3 All ER 578, [1984] QB 381, in which the court decided that the appropriate standard in determining whether a recognisance should be forfeited was the civil standard, at least where the only result of such forfeiture was an order to pay money. We must confess that we do not find that decision entirely satisfactory since it does not have regard to s 120(4) of the 1980 Act, which applies the enforcement powers, including imprisonment, relevant to a fine to the estreating of a recognisance and, in so far as it applies R v Southampton Justices, ex p Green [1975] 2 All ER 1073, [1976] QB 11, it relies on reasoning which has subsequently been disapproved (see Carr v Atkins [1987] 3 All ER 684, [1987] QB 963).

There are pointers either way to whether the proceedings should be labelled criminal or civil. We do not need to decide which is appropriate, although we would incline to criminal, largely for the reasons given in Ex p Graeme. In our judgment, the consequences and circumstances of the proceedings require proof to a high standard.

Accordingly, whatever the nature of the proceedings, we consider that the proper standard to be applied is the criminal standard, namely proof beyond reasonable doubt.

It was submitted by Mr Readhead that R v Aubrey-Fletcher, ex p Thompson showed that something less than proof beyond reasonable doubt sufficed for orders made under the 1361 Act or at common law. We do not think that is right. The standard remains the same, but what has to be proved is different. In considering a complaint under s 115(1), the court must be satisfied that the relevant allegations have been proved. In considering future conduct, the court must be satisfied that there is a real risk of such conduct continuing and that a breach of the peace may occur.

We turn to the questions asked of us. (1) It will be clear that we would not have regarded the absence of a witness to state that a breach of the peace was apprehended as fatal if otherwise conduct the natural consequence of which was violence were proved. A civil trespass itself cannot amount to a breach of the peace, although circumstances can easily be imagined in which a trespass may produce violence as its natural consequence. An obvious example would be continued incursions in the face of expressed threats to use violence to remove the trespassers. (2) This question we answer No. (3) The criminal standard applies. (4) The first part of this question does not arise, since we are concerning ourselves only with breaches of the peace. The answer to the second part is Yes.

In the result, this appeal is allowed and the order made by the justices will be quashed.

DISPOSITION:
Order accordingly.

SOLICITORS:
Stephens Innocent; Crown Prosecution Service, Cambridge