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Bibby v Chief Constable of Essex, Court of Appeal

16 May 2000
The facts

The Police were called by the Bailiff and the Debtor to the Debtor’s shop. Tempers rose. The Police feared a breach of the Police and told the Bailiff to go. The Bailiff refused to go and the Police arrested him and led him to the station in handcuffs. They released him after an hour without charge. The Bailiffs sued for assault and wrongful imprisonment.

It was conceded that the Police believed honestly that a breach of the peace was likely.

The Bailiff contended that he was entitled to remove the goods; that his refusal to leave without money or goods was reasonable; and that in those circumstances an arrest for failure to leave was unlawful and that in any event his handcuffing was unreasonable. He was described as being “a large man%u2026.. and%u2026.very forthright”. The Court of Appeal had to therefore examine circumstances in which conduct not itself illegal is sufficient to justify an arrest if persisted in. The common law power to arrest for apprehended breach of the peace caused by apparently lawful conduct was exceptional. Following Foulkes v Chief Constable of Merseyside (1998), Nicol v DPP (1996) and Redmond-Bate v DPP (The Times 28.7.1999) “a person who is engaging in or threatening to engage in lawful actions which are likely to result in a breach of the peace can only be arrested on the basis that a repetition of those lawful actions is likely to result in a breach of the peace if his lawful actions, actual or threatened are wholly unreasonable and in some way interfere with the other person’s rights.”

The decision

Per Schiemann L J The Law stands as follows: –

1. There must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully – Foulkes

2. The threat must be coming from the person who is to be arrested – Redmond-Bate.

3. The conduct must clearly interfere with the rights of others – Redmond-Bate.

4. The natural consequence of the conduct must be violence from a third party – Redmond-Bate.

5. The violence must not be wholly unreasonable – Redmond-Bate.

6. The conduct of the person to be arrested must be unreasonable – Nicol.

In this case the arresting Constable failed to consider where the threat for violence was coming from. In these circumstances the threat of violence should have been perceived as coming from the Debtor rather than the Bailiff. Consequently the Bailiff’s Appeal would be allowed. In any event the use of handcuffs was not reasonable.

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