An application to the justices to state a case was made immediately and on 9th October 1992 the Appellant was granted conditional bail by Mr Justice Alliott. 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 R.A.F. Alconbury on five occasions between 1.30pm and 3.30pm on 24 April 1989. At this time, R.A.F. Alconbury was used by U.S. 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 U.S. serviceman, whereupon he went over and, escorted her off the base. On the last occasion, she was spotted by two armed U.S. 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 U.S. 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 R.A.F. Alconbury bye-laws 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 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 bye-laws, and the continuing expansion of the war machine. She, together with 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 bye-laws, which made criminal any unauthorised incursions on the bases, were invalid. That attempt was successful when on 31st July 1992 this court decided that the bye laws were indeed invalid: see Bugg v DPP [1993]QB 473. No doubt because of the imminence of those procedings, in April 1992 it was the policy of the C.P.S. not to prefer charges under the bye-laws.

The justices findings in relation to the Appellant's conduct are set out in Paragraph 3 of the case as follows:-

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 U.S. servicemen who might be armed, might react to her presence in such a way as would cause a breach of the peace.

The Act of 1361 pursuant to which the objection was made reads (as amended) as follows:-

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 Act of 1361 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 judgement of the majority of contemporary citizens; see Hughes v Holley (1988) 86 Cr App R.130. We are not concerned with that aspect of justices, powers, whether under the Act of 1361 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. S.25 read:-

These provisions are now to be found in s.115 of the Magistrates Courts Act 1980, which reads:-

It is important to bear in mind that the justices were here considering a complaint laid under s.115(1) of the Magistrates Courts Act 1980. 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 recognizance, 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. S.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 E.R. 846. 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, since (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] 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:-

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 Act of 1361 and s-115 of the Magistrates Courts Act 1980 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 [19021 1 KB 167. 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 was 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, Lord Alverstone CJ said this (at pp 175-176):-

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 at pp.179-180, in a short concurring judgement, said this:-

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, where at pp 219-220 Brooke J said this.-

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 [19821 1QB 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. At p.426, Watkins LJ said:-

It is clear from the last sentence that harm to property will constitute a breach of the peace only if done or threaten ed 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 section 5 of the Public Order Act 1936 in Parkin v Norman, Valentine v Lilley [1983] QB 92, McCullough J saying (at p.102G):-

There is in our judgement 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 Devon & Cornwall ex p. Central Electricity Generating Board [1982] Q.B. 458 Lord Denning M.R. stated at p.471A:-

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 per Lawton LJ at p.476 F-G and Templeman LJ at p.48OA-C.

In R v Sandbach ex p.Williams [1935] 2 K.B. 192 Avory J said at p.196.-

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, insofar as Denning LJ in Everett v Ribbands [1952] 1 All ER 823 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 judgement, 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 Paragraphs 13 and 14 of the case.

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 R.A.F. Alconbury on the 24th. 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 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 judgement, 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_ (supra) per Edmund Davies LJ at 848 C-D). The finding in paragraph 14 of 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 M.R. in the Central Electricity Generating Board case, which we have already held to be erroneous; see paragraph 13(4) of the case. 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 judgement, it is not necessary to categorise the proceedings in order to determine the standard of proof applicable. In re Bramblevale Ltd [1970] 1 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 p. 137G). A failure to comply with the order to enter into a recognizance 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 190 the Court of Appeal decided that an application relative to a complaint under s.115 of the Magistrates Court Act 1980 was prima facie in a criminal cause or matter and that in Everett v Ribbands (supra) 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 L.B.C. The Times 7th November 1994. Our attention has been drawn to R v Marlow Justices ex p. O’Sullivan (1983) Cr App R(S) 279, in which the court decided that the appropriate standard in determining whether a recognizance 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 Magistrates Courts Act 1980, which applies the enforcement powers (including imprisonment) relevant to a fine to the estreating of a recognizance and, insofar as it applies R v Southampton Justices ex P.Green F19761 QB 11, it relies on reasoning which has subsequently been disapproved: see Carr v Atkins [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 judgement, 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 Aubrev-Fletcher ex p. Thompson (supra) 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.

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