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Example: Antisemitic rally being held by the national jewhaters’ league. Robert the rabbi with his skullcap shows up in his very conspicuous Jewish garb to proudly sing some Jewish songs in the centre of the protest.

Polly the policewoman pulls him out of the crowd by his arm, bringing him across the street while explaining that it’s being done for his own protection.

Polly adamantly insists that she cannot have him return because him singing those Jewish songs would potentially cause a breach of the peace, as could already be seen just before when he began to elicit anti semiotic insults and taunts from the jewhaters’ crowd.

Robert continues defiantly singing his Jewish songs before Polly then promptly arrests him for a breach of his majesty’s peace.

Did Polly correctly use or exceed her legitimate legal powers as a policewoman?

—— According to Polly he was suspected of committing a breach of the peace but in reality can singing inherently inoffensive songs alone constitute a breach of the peace? I think poly’s previous remarks suggest that in spite of her later claims her overall conduct was rather motivated by a desire to keep Robert safe. I think it’s possible that what Polly actually meant was that rather than committing a breach of the peace, Robert might has been at risk of provoking others to imminently commit a breach of the peace against him.

But if there are only reasonable grounds to think that other parties than Robert may be about to commit a breach of the peace, is it fair/lawful to arrest Robert for his own protection, instead of arresting the ill tempered others so as to prevent the breach?

TylerDurden
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This is similar to the facts of Redmond-Bate v DPP [1999] EWHC 733 (Admin). The claimant was arrested for breach of the peace, and later convicted of obstructing a police officer. She had been preaching on the steps of Wakefield Cathedral and attracted a hostile crowd, so the officer feared that some sort of violent behaviour would ensue, although she herself was not being violent.

On appeal, her conviction was quashed. The key question was how provocative she was being:

The question for [the police officer] was whether there was a threat of violence and if so, from whom it was coming. If there was no real threat, no question of intervention for breach of the peace arose. If the appellant and her companions were (like the street preacher in Wise v. Dunning) being so provocative that someone in the crowd, without behaving wholly unreasonably, might be moved to violence he was entitled to ask them to stop and to arrest them if they would not. If the threat of disorder or violence was coming from passers-by who were taking the opportunity to react so as to cause trouble (like the Salvation Army in Beatty v. Gilbanks), then it was they and not the preachers who should be asked to desist and arrested if they would not.

The officer's anticipation of violence in Redmond-Bate was held to be unreasonable, and his attribution of provocation was wrong, so he was not entitled to arrest the claimant. Consequently, the court was wrong to conclude that she was obstructing an officer, because "a police officer has no right to call upon a citizen to desist from lawful conduct."

So in principle PC Polly could lawfully arrest Robert, if all the circumstances were right. It is not precisely an arrest for his protection, but in order to prevent acts of violence (although he would plausibly be among the victims if matters escalated into a riot).

PC Polly's assessment of the situation must include respect for the human rights of all involved - these days a standard part of police training. (The specific scenario is unusual because the hypothesized rally may bring in consideration of Article 17 of the European Convention on Human Rights, which has frequently been applied to exclude protection of Nazi-like beliefs, Holocaust denial, advocacy of genocide, etc., but I think that is not an essential part of the intended question.)

alexg
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